nature determines family

Robin Phillips argues against Premise 2:

The State that Legalizes Gay ‘Marriage’ Presumes to Replace Nature as the Determiner for What Constitutes a Family

My second point follows directly from the first and it is this: the state that legalizes gay ‘marriage’ presumes to replace nature as the sole determiner of the difference between marriage and non-marriage, and thus what constitutes a family.

To demonstrate this second premise, recall what we saw a minute ago about the difference between marriage as the gay community would have us understand it, vs. marriage as it has traditionally been understood. The gay community would like us to think that marriage is, and perhaps always has been, “a committed and loving relationship between two consenting adults.” This is over and against the conjugal view of marriage as “a union between one man and one woman”, or more specifically, a sexual union publically recognized because of its potential fecundity.

In the case of the conjugal view, there is an empirical reality we can point to when establishing whether a relationship is really a marriage, or at least a complete and consummated marriage. Have they had sexual intercourse? But we have seen that there is no corresponding empirical reality that can constitute what it means to be in a marriage regulated by the first definition. Indeed, a person might have a “committed and loving relationship” with any number of other persons without it being marriage.

Now precisely because of this, the only way that a committed and loving relationship can be upgraded into marriage is if the state steps in and declares that relationship to be a marriage, in much the same way as the state might declare something to be a corporation or some other legal entity. By contrast, conjugal marriages have and could exist without the state’s recognition because it is fundamentally a pre-political institution. Marriage is pre-political in the sense that it has intrinsic goods attached to it, not least of which is the assurance of patrimony and thus the integrity of inheritance. Such goods do not exist by the state’s fiat even though the state may recognize, regulate or protect them.

An imaginary example should make my meaning clear. If an unmarried man and a woman are shipwrecked on an island together with no one else around, and they decide to be husband and wife, it is meaningful to talk about them getting married and having a family even in the absence of a civil government. To be sure, a legitimate marriage almost always involves recognition by the wider community, but because the community is recognizing something that is existentially independent to itself, there can and have been situations in which the recognition of the community is posterior in time to the marriage itself. This is why the type of families created by traditional marriage have an a priori claim on the state. By contrast, one cannot say the same about two homosexual men or two homosexual women on an island who decide to get “married”. Without the mechanisms of the state to confer the status of marriage upon two members of the same sex, there are no acts that organically mark the relationship out as being marriage within a state of nature. Indeed, the philosophy behind same-sex marriage is one which makes both marriage and family entirely the construct, and therefore the province, of positive law.

Now let’s take my island scenario one step further and imagine a scenario involving three persons: a 35-year old man named George, an 18-year old girl named Mary, and a 40-year old man named Kevin. George and Mary have a sexual relationship with each other and perhaps they even have children, while George also enjoys a homosexual relationship with Kevin. Now, looking at this situation from the outside, there are a couple possibilities. One possibility is that George and Kevin are in a gay marriage, with Mary being their adoptive daughter whom George is pursuing an incestuous relationship with. But a second possibility would be that George and Mary are husband and wife, with George simply being unfaithful to Mary by having a relationship with another man (or even acting with Mary’s consent because she understands her husband’s bisexual urges). Now here’s the important point: without the state there to declare one of these relationships to be ‘marriage’, we simply can’t say which of these two options are correct. Looking at the situation from the outside, there is just no way to tell who is married to whom. Unlike heterosexual marriage, which has an existential fixity that can be recognized within a state of nature, gay marriage is meaningless without the mechanisms of government to legitimize it. The state has to replace nature as the sole determiner for what is and is not a marriage, and therefore a family.

Someone may object to my example by pointing out that similar confusion would abound if there was a heterosexual married couple on the island and one of the spouses engaged in illicit sex with a third party. For in that case, looking at it from the outside, we wouldn’t be able to tell who was married to whom. Very well then, let’s modify my second example so that George and Mary are still having a sexual relationship but George and Kevin are not. You might think that this would simplify things by removing the possibility that George and Kevin are in a gay marriage. However, since sex is not a necessary condition for gay marriage (for remember, gay marriage is usually described merely in terms of “a committed and loving relationship between two adults”) it is impossible to know that George and Kevin are not married merely because they are not having sex with each other. The only way we could know whether or not they were married would be for there to be civil government on the island to confer the status of marriage upon them.

My thought experiments have been complex, but my basic point is very simple: without the intervention of government, there is no a priori existential state of affairs that marks certain types of same-sex relationships out as being marriage within a state of nature. Unlike heterosexual marriage, which exists in nature and is then recognized by the state, homosexual marriage is an abstract legal entity with no natural or existential existence. Now to be sure, within the paradigm of traditional marriage there are sometimes hard cases and it is not always clear whether something can count as a marriage, but at the centre there is a recognizable reality that is pre-legal, and the hard cases arise by virtue of how far removed we are from the centre. But there is no comparative ‘centre’ for determining what a normal same-sex marriage would be within a state of nature. Just try to map over the concept of a “common law wife” to the relationship of two lesbians and you’ll see what I mean. What counts as “a committed and loving relationship” is incredibly vague and open to any number of interpretations or further applications. Indeed, once marriage is divorced from nature like this, then in principle there is no limit to the types of relationship that can have the status of ‘marriage’ or ‘family’ conferred on it by the state, as Jeremy Irons recently warned.