I don’t agree with your conclusion wrt SSM, but I think you put the matter beautifully wrt reasonable disagreement. For several years now I have written about reasonable disagreement in the context of abortion and SSM for a certain “paleocon” journal, and the point I’ve made repeatedly is that this is exactly why the legislature, not the judiciary, should decide the SSM issue. What reasonable people disagree about, after all, is whether it is even comprehensible to think there is a right of same-sex couples to marry.

Michael PS, while a presumption of “paternity” might not play a role in SSM, a closely analogous presumption of parenthood might–or at least so it seems to me. While you say that the state does not prohibit SSM, but rather by “its understanding of marriage necessarily excludes it,” I wonder if this is not a distinction without a difference. Is the state really compelled to maintain this understanding of marriage? I suppose you want to say “yes”–given its interest in the presumption of paternity. But surely there are ways for the state to maintain the presumption of paternity without maintaining this particular understanding of marriage. But perhaps I am getting things confused.

Ken Z.,

You’ve made me realize my ignorance about the controversies within natural law tradition. Thank you for giving me direction here.

Even if “the conceptual-moral-metaphysical incoherence of SSM” can be demonstrated by careful argument from “a philosophical understanding of ontology and essences,” well-informed and reasonable people are going to inevitably disagree with this demonstration–and, even if these who disagree are ultimately making some mistake, its not as if we can plausibly accuse them of simply being unreasonable. In that respect, grounding the government’s refusal to recognize SSM in the conceptual-moral-metaphysical incoherence of SSM will inevitably be a lot like grounding that refusal in a distinctively religious or ideological doctrine. As such, the justification of that refusal won’t be something we can reasonably expect others to accept–which alone might prove to be a decisive consideration against attempting any such strategy.

Those are very good questions. I’m not sure they can be answered on the basis of “first principles of practical reason” *alone*–that is, apart from a philosophical understanding of ontology and essences, as Aristotle and Aquinas firmly believed but the “new natural lawyers assuredly do not. (See David S. Oderberg’s “The Metaphysical Foundations of Natural Law,” which is very critical of the NNLers, and add to your store of wisdom by reading Pope Benedict’s essay on natural law in the same volume. The curious, and those First Things readers who uncritically agree with the NNL philospher Robert George, may wish to ask themselves whether it is significant that the Pope has an essay in a 2010 volume published by the CUA Press in which Oderberg’s essay–which takes to task the NNL philosophy of Germaine Grisez and John Finnis–also appears.)

So we anti-SSMers need to think harder. I myself believe that a good rationale for the government’s refusal to recognize SSM is the conceptual-moral-metaphysical INCOHERENCE of SSM. I suspect that a good argument could be based on that to the effect that SSM offends justice. It obviously does not offend liberty or equality (although it is not, in my view, required by either of them). The problem with conservatives is that they are so hung up on “liberty” that they find themselves flatfooted in opposing the justice-claims for SSM. Lots of thinking is needed about all this. And then maybe someone will be able to answer your questions.

The presumption of paternity clearly has no role in SSM. It has no role to play in adoption, either, as the adoptor or adoptors are named in the decree. If applied to a lesbian couple, it would clearly be a legal fiction, a fiction that would derogate from Article 371-1 of the Code Civil, which vests parental authority in the father and mother of the child, whether married to each other or not.

That is the whole thrust of the Bègles case: republican marriage simply does not concern same-sex couples – it serves no function for them, or for the Republic. For this reason, the court held that “it could not be considered a marriage,” [« ne peut être considérée comme un mariage ».] within the meaning of the Code Civil. The state does not prohibit SSM; its understanding of marriage necessarily excludes it

On the other hand, same-sex couples have in the PACS a very flexible structure that can be tailored to their individual circumstances – One of the reasons that they are increasingly used by opposite-sex couples, too.

I can certainly see the sense in what you say:

The state, in its concern for the welfare of children, wishes paternity to be clear, certain and incontestable. The presumption of paternity arising from marriage is, I would submit, the simplest and least intrusive method of doing so.

However, I don’t see how you’ve addressed the questions I had put to you above. It’s not of course that I think you owe me a response; rather, I just want to make sure I’ve not missed anything.

I think you made my point for me.

It’s one thing to thoughtfully disagree with the views of others. It’s another thing entirely to pretend the world is as you’d like it to be, rather than as it is. Would you argue that abortion is not real? Would you tell me that no-fault divorce is a fiction? Of course not.

Marriage is a secular, civil institution. What the Catholic church does with the sacrament of marriage is its own business. To deny that the secular government might make different choices is delusional.

This is not what I believe. It just “came out wrong”. My apologies if anyone was affected.

Apart from the intrusiveness of singling out infertile couples, there’s also the very real fact that sometimes “infertile” couples do have children.

There is no way to determine and screen for which couples will be biologically incapable of bearing children, just as there is no way to determine and screen for which couples will fail at various other aspects of marriage (fidelity, loving and honoring the spouse, dealing with sickness, etc)

Childless couples – for whatever reason – are couples who are eligible for the benefits, but can’t, won’t, or don’t use them.

That is not the same thing as wanting to use the benefits, but not being eligible for them.

Thank you for your observations.

To turn to your question, while it is true that it is now possible to determine biological paternity through DNA testing, fatherhood has, not only a biological, but a legal and a social meaning. The state, in its concern for the welfare of children, wishes paternity to be clear, certain and incontestable. The presumption of paternity arising from marriage is, I would submit, the simplest and least intrusive method of doing so.

It is worth noting that, in both Belgium and the Netherlands, the presumption does not apply to SSM, although it does in Spain. Hence, some jurists have argued that the two former countries have conceded the name, but not the reality of marriage to same-sex couples.

In the famous Bègles case, where a local mayor did marry a same-sex couple, the French courts, adopting Carbonnier’s view that the presumption of paternity constitutes “the heart of marriage,” upheld the exclusion of same-sex couples on the grounds that “Clearly, same-sex couples whom nature had not made potentially fertile are consequently not concerned by the institution of marriage [ne sont en conséquence pas concernés par cette institution]. This is differential legal treatment because their situation is not analogous.”

Of course, it does not concern opposite-sex infertile couples either, but to establish a screening process would be burdensome, expensive, intrusive and litigious, especially given current advances in reproductive medicine and assisted reproduction. Laws are enacted for the general case and anomalies are the price that legislators pay for simplicity and certainty.

The exclusion of SSM from a régime that the state regards as the founding of a family, is thus justified in principle and any hardship is ameliorated by the availability of a PACS (Civil Partnership), which is used by same-sex and opposite-sex couples in, more or less, equal numbers.