In “Courting Cowardice,” published this week in the New York Times, Maureen Dowd attacks the natural law argument that since marriage is for procreation, homosexual couples are de facto incapable of being married. She does this by offering several counterexamples echoing those given by members of the Supreme Court this week. She writes:
[Charles Cooper’s] argument, that marriage should be reserved for those who procreate, is ludicrous. Sonia Sotomayor was married and didn’t have kids. Clarence and Ginny Thomas did not have kids. Chief Justice Roberts’s two kids are adopted. Should their marriages have been banned? What about George and Martha Washington? They only procreated a country.
As Justice Stephen Breyer pointed out to Cooper, “Couples that aren’t gay but can’t have children get married all the time.”
Justice Elena Kagan wondered if Cooper thought couples over the age of 55 wanting to get married should be refused licenses. Straining to amuse, Justice Antonin Scalia chimed in: “I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage — you know, ‘Are you fertile or are you not fertile?’”
Such criticisms of the natural law argument make elementary philosophical mistakes. Suppose we agree that the purpose of an automobile is to travel. This is a statement about the essence of cars, the class of car-ish machines, and not about the present capability of any particular car. Dowd’s argument against the teleology of marriage is equivalent to someone arguing that, “well, my car won’t start—either because it broke down, or, heck, maybe because I yanked the spark plugs—so cars must not be for traveling.” Clearly the fact that a particular car won’t start is as irrelevant to the determination of whether cars are for driving as the fact that a car is blue or red; Dowd’s argument simply confuses accidental and essential characteristics of marriage.
In contrast, the natural law argument is that government has an interest in behavior that is essentially procreative and only accidentally sterile (through age or deliberate sterilization via contraception) and not in essentially non-procreative behavior. Procreative behavior is governed by norms of fidelity, exclusivity, and indissolubility because it is the kind of behavior that creates children, and such behavior creates rights in children that are correlative with parental duties in adults. Marriage is a duty, not a privilege.
Note that this is a metaphysical argument about the teleology of marriage and not a policy argument about “equality.” No one is disputing that the law should treat like cases equally. As others have pointed out, just as it is not discriminatory to deny blind people driver's licenses, neither is it discriminatory to deny homosexuals marriage. Homosexual behavior is by definition sterile, and therefore incapable of satisfying the conditions of marriage. It cannot of itself generate the duties required of procreative behavior, and therefore to call it marriageable is Orwellian double-speak.
To retort that marriage is about love rather than procreation is to posit a false dichotomy. It's obviously about both (as the Church has argued for two thousand years, incidentally, teaching that the three ends of marriage are procreation, marital friendship, and mutual sanctification). If marriage were only about celebrating love we should be handing out trophies, or declaring more holidays like Valentine's Day, not binding people with exclusivity, fidelity, and indissolubility. Indeed, those who think of marriage as only about love tend to argue against these duties, since they are regretted when feelings change.
Doubt it? Look up the contributions to the conversation by Judith Stacey and Dan Savage, say, as described in “Monogamy, Exclusivity, and Permanence,” a recent article on Ricochet. They want nothing to do with the usual trinity of marital duties. Why would they? If marriage is about love and love is about anything, what would constitute a rational limit on such a feeling? Someone at court should be asking that question too.
Joshua Schulz is assistant professor of philosophy at DeSales University.