Like many countries, the United States of America is thick with laws supporting marriage. These laws compel citizens and governments to support marriage financially and respect a whole range of related rights and privileges. What justifies these measures? The answer is obvious: children. Children, literally, are the future of every society.
Unfortunately the sentimentality surrounding this phrase can obscure the plain facts of the matter. New generations must replace old generations. There must be a never-ending supply of farmers, entrepreneurs, soldiers, voters, statesmen, taxpayers, intellectuals, and others for society to provide essential goods and services. Furthermore, there is overwhelming evidence of the sociological and economic benefits of traditional, heterosexual marriage. For all of these reasons the promulgation of heterosexual marriage contracts is justified by grave public necessity; the legal establishment of heterosexual marriage is justified by the common good.
To be sure, those who contract heterosexual marriages are not psychologically motivated by grave public necessity, but this is entirely beside the point. Private motives are irrelevant or secondary before the law: Its concern is the public interest (the common good). We do not compel our fellow citizens with the force of law for interests that are exclusively or predominantly private . For this reason the promulgation of law must meet a very high standard, namely, grave public necessity. Heterosexual marriage passes this test.
Not all heterosexual marriages are fecund and some who marry have no intention of having children, but the institution of heterosexual marriage produces, supports, and educates children; it benefits society sociologically and economically; it advances the common good”this is the only reason for its legal establishment. And t here is a very good reason for restricting law to the common good: The laws of political states are always at least potentially coercive.
Laws do not merely counsel or suggest. Laws command obedience and sanction punishment. Of course, one may freely choose to follow a given law because of its obvious utility or virtue, but law remains that which commands or forbids regardless of personal judgments and desires. Law always possesses an intrinsic coercive potency; it threatens. Thus, the promulgation of law is an exercise of self-government, and at the same time, once established, law curtails self-government. Natural self-government is determined, specified, and focused by law”its promulgation effects the transfer or curtailment of the natural self-government.
For this reason, the promulgation of law can only be justified by grave public necessity. Again, the heterosexual form of marriage passes this test, but there is no grave public necessity meriting the establishment of legally binding homosexual marriage contracts. Homosexual unions, by definition, are intrinsically incapable of producing children. The establishment of gay marriage only advances the private emotional interests of homosexual couples, and private interests do not justify the force of law.
It may be argued that failing to establish homosexual marriage contracts subverts equal protection under the law, but this kind of objection only evinces confusion. Homosexual advocates insist that they must have access to marriage contracts, but this is this already the case. There is no law against homosexual persons contracting heterosexual marriages . The equal protection of the law is only subverted when the same thing is denied to diverse groups only because of their group definition. But heterosexual marriage is not denied to homosexual persons.
This reveals that gay marriage is not the equalizing extension of an already existing contract, but the establishment of a new kind of contract. This pushes the issue back to the question of whether there is a grave and necessary public advantage in promulgating the new institution of gay marriage. The answer must be no.
Finally, it is important to be clear about what I have and have not argued. I have proposed no general theory regarding the nature of marriage or sexuality; nor developed any moral critique of homosexuality or heterosexuality. My argument is based solely on the nature and function of law and the value of self-government. Because law is coercive it may only be promulgated for the sake of grave public necessity. Gay marriage only promotes a private interest and therefore does not justify the force of law.
Certainly, those advocating homosexual marriage are well-intentioned, and homosexual persons have not always received the respect they deserve. Nevertheless, it should be obvious to all, whether homosexual or heterosexual, that we ought not coerce each other more than necessary. Where it is not necessary to coerce, it is necessary not to coerce. To advance private interests coercively, even where the majority consents, subverts the legitimacy of law, and as such, subverts the self-government, fraternity, and dignity of all Americans.
Benjamin L. Smith is assistant professor of philosophy at Aquinas College in Nashville, Tennessee.
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