That’s the “bodily union” George is talking about. All marriages should be allowed and approved to conceive offspring together, even though it isn’t a guarantee that they will succeed or a requirement that they do. No marriages should be forced to use donor gametes or modified gametes, that is not bodily union and violates the basic rights of man to procreate.

The gap between a necessary and general orientedness to procreation can be filled by positing an ideal capacity to procreate, alongside an actual capacity. Together, the actual and the ideal capacity to procreate constitute an intrinsic or natural capacity. Homosexual couples, unlike sterile and aged heterosexual couples, lack both an actual and ideal capacity to procreate. Thus, if marriage (the institution) presupposes procreation (the general fact thereof), then same-sex marriage is basically a CATEGORY MISTAKE. Since there is no doubt that in the absence of procreation there would be no need for an institution as rigorous as marriage, the category-mistakenness of same-sex marriage–its utter inaptness–is as inevitable as the sun in the Sahara.

In sum, the new natural law argument against same-sex marriage is not without some significant flaws; and as for the proponents of same-sex mariage, they are the merest ideologoues–and dangerous one, too, to the extent that marriage is a social institution whose vitality depends on its conceptual coherence. The queering of marriage would preordain the collapse of marriage as an efficient protector of the common good.

I agree with what you say, and I agree that sterile and aged heterosexual couples can coherently marry, and there is no contradiction in refusing to allow same-sex couples to marry. As I’ve put it elsewhere, all opposite-sex couples, and no same-sex couples, have an intrinsic capacity to procreate–an ideal or actual capacity. True, this appears to require, in extremis (as with lesbian cloning to produce offspring that have 50% of the DNA of each partner), a resort to the idea of natural procreation. But that comes at the end of a chain of reasoning, not at the beginning, and I see no problem with it.

I just think the idea of reproductive-type acts, or acts of a generative kind, does not show why this “discrimination” between sterile heterosexual couples and same-sex couples is properly made. The notion of reproductive-type acts should be restricted to the developing of a theory of sexual morality and not used in a theory of marriage–it does not help us to defend traditional marriage for the reason I gave in my previous comment.

What proponents of “traditional marriage” want to preserve is a relatively young set of practices and customs that is most prevalent in their particular part of the world. What marriage “is” differs even now when you travel to other parts of the globe. Our traditions of marriage are not very traditional, when considering the various practices over human history and even now in other parts of the world.

Traditions develop over time and are retained by groups of people because, in a certain time and place, it serves their needs. When, over time and place, the composition of the group and/or their needs change, so too do their traditions need to, and usually do, change. We are shaped by our traditions and in turn, we reshape them when it is necessary and to our advantage.

However, traditions are usually changed with difficulty, and often people have difficulty with the change. America of the 1950′s is often though of a good example of “traditional” America. Blacks — and women — knew their place. So did the Catholics and Jews. For gay people, their place was in the closet. Traditional marriage at that time, among certain exemplary social and economic classes, was between one diet-pill addicted stay at home mom and her husband who was out having an affair with his secretary.

American society has changed since the 50′s. The civil, woman’s and gay rights movements have made a change in our traditions. Soon, homosexuals will be able to serve in the military openly, as is done now in the countries of several of our NATO allies. Eventually, it is hoped by many, all Americans will have the right to marry people of either sex, as is the practice, again, in several other countries.

These changes, of course, bother the traditionalists. What proponents of traditional marriage want to maintain is *their* tradition. It meets their needs. That it does not meet the needs of people different from themselves is of no concern, in practice, to them. That this discrimination advances no social good and does real harm is something they can not see. They claim, with no valid evidence, that quite the opposite is true.

South Africa knows something of discrimination. When things changed there, the people who came to power decided to not discriminate against same-sex couples. America was not the first country to free their slaves or to extend the right to vote to women. One day we too will catch up to countries like South Africa. We will extend to homosexual adults an invitation to partake in a relatively new tradition — the right to marry for love.

Considering the fact that a “civil-union” is more and more a form of marriage allowed to same sex couples, the tradition the traditionalists are mightily striving to protect is, partially speaking, simply the word “marriage”. Yet, when you think about it, all marriages are, at the very least, civil unions.

When a couple decides to marry, do they head on over to the local Hare Krishna temple to get a license? When they decide to divorce, do they and their lawyers appear before the folks in charge at the Scientology center? Some marriages may be celebrated in a religious setting and context, but that is insufficient for it to be considered a legal marriage. All marriages are a matter of civil law. No religious traditions are being told or even asked to change. The change being sought is a change in civil law. When most of the rights enjoyed by and obligations accepted by all people legally married are available to same-sex couples in the form of “civil unions,” what will change for the rest of us? A word.

People will say its more than that. But, recently, in a court of law, it was ruled that the case against same-sex marriage rested solely upon the fact the certain people say their God doesn’t approve. We will see if that ruling is upheld on appeal.

Discriminatory behavior based solely on religious beliefs may be part of some peoples traditions. In America, we call that “unconstitutional”. Being guided by the Constitution is a tradition most Americans value. And like the Constitution, when traditions need to change, they can, and should be.

The eye is the organ of vision – that is the intelligible structure that constitutes it in its species – and the fact that a given eye may be so atrophied or vitiated that it is incapable fo vision does not mean that it is ceases to be an eye and becomes something else.

At a practical level, the law should aim at simplicity, certainty and universality, based on stable, certain and comprehesible criteria; especially given the current advances in assisted reproduction, screening out infertile couples would be both burdensome and contentious. This, in itself, highlights the difference between the accidental or adventitious character of their infertility, in contrast to the intrinsic infertility of same-sex acts

It seems to me, though, that there’s a serious problem with the whole idea of “generative acts”–a problem of ambiguity. Are these acts of a kind that are (potentially) generative? If so, then there’s no valid distinction to be made between sterile opposite-sex couples and same-sex couples, since neither of them can actually procreate. Why then do we legally regard only one of those two types of partners as being marriageable?

Or are “generative acts”–less plausibly, in my view–acts of a generative kind? Less plausibly because of the seeming “loading the dice” of making the term *generative* rather than *act* the direct subject of *kind*. This may not be a FATAL ambiguity, but it is surely a problematic one. It leaves the door wide open to the same-sex marriagers to make a powerful rebuttal. This is the door left open by the article being discussed here, as well as in all of the writings on marriage by Robert George, John Finnis, and Patrick Lee that I have seen.

Thus, in the case of Warrander v Warrander (1835), Lord Brougham said, “If, indeed, there go two things under one and the same name in different countries – if that which is called marriage is of a different nature in each – there may be some room for holding that we are to consider the thing to which the parties have bound themselves according to its legal acceptance in the country where the obligation was contracted.”

But this is not the case; “therefore,” says Lord Brougham, “all that the Courts of one country have to determine is whether or not the thing called marriage – that known relation of persons, that relation which those Courts are acquainted with, and know how to deal with – has been validly contracted in the other country where the parties professed to bind themselves. If the question is answered in the affirmative, a marriage has been had; the relation has been constituted; and those Courts will deal with the rights of the parties under it according to the principles of the municipal law which they administer.”

Naturally, Lord Brougham made an exception for polygamous unions; otherwise, as Lord Penzance explained, in Hyde v Hyde (1866), “the Court would be creating conjugal duties, not enforcing them, and furnishing remedies when there was no offence.”