A natural law argument for same sex marriage...?

                         Natural law doesn’t require us to reach for the gunpowder every time government gets it wrong…(But that doesn’t make wrong right.)

It’s not often that something I’ve found on the internet stops me completely in my tracks –or, more precisely, stops me in my tracks because I’m confronted with a way of looking at a familiar problem in a completely different and unexpected light. (Rather than being surprised by a video on Youtube of a man pushing a cucumber up his nostril or the like.)

However, such was the case with a posting on the wonderfully named It’s a Sic andNonderful Life. Here the author argues that natural law might support the legalization of same sex marriage. The grounds for arguing this are:

And so laws need also to be imposed on human beings according to their condition, since laws ought to be ‘possible regarding both nature and a country’s customs,’ as Isidore says.” Aquinas ST Ia-IIae, 96, 2 (here).

In brief, the argument is that, if a population has developed customs and habits which have blinded them to the wrongness of homosexual activity, it might be wrong to forbid same sex marriage and even (the post seems to suggest) it might be positively right to introduce it.

As this is going to be rather a long post (it’s my blog and I can be self-indulgent if I want to be!), here’s the summary of my conclusions:

a)      There is no reason to conclude that either Augustine or Aquinas would have supported the legalization of same sex marriage.

b)      In terms of the general principles of the natural law tradition, there is no reason to believe that same sex marriage legislation should be regarded as anything other than a foolish mistake.

c)      In terms of the natural law tradition, we do sometimes have to live with idiotic and even wicked ways of running the country in order to achieve a greater good of civil peace. But that’s pretty obvious, isn’t it? (Abortion is a great evil. But Catholics do not sacrifice the good of civil peace in order to oppose it.)

(A general point to be made here is that I have deliberately avoided any appeal to the teaching authority of the Church in order to deal with the argument simply as a philosophical point within natural law. However, for a Catholic, due importance would have to be given to the authority of pastors in deciding how practically to deal with a manifest public wrong such as same sex marriage. In Scotland, we would expect guidance from our bishops on our response in the same way that Catholics in New York are being guided by their Archbishop.)

And now, the main course…

Now the first thing to say about this argument is that it’s based on an article in the Summa Theologiae which is addressed to the issue of repression of vice: as such, it only concludes that it is sometimes right to permit a morally wrong action. This would most obviously allow the absence of punitive legalization against homosexual activity in some types of society. But the issue of same sex marriage is different: it is not the toleration of an activity, but the legislative creation of a new institution or practice within society. This is relevant to ST Ia-IIae, 95, 2 where it is stated:

Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.

So it is one thing not to have a law, quite another to have a law which goes against the law of nature. Marriage, by the law of nature, is that between man and woman, the principal end of which is the rearing of children:

[I]n this way matrimony is natural, because natural reason inclines thereto in two ways. First, in relation to the principal end of matrimony, namely the good of the offspring. For nature intends not only the begetting of offspring, but also its education and development until it reach the perfect state of man as man, and that is the state of virtue. Hence, according to the Philosopher (Ethic. viii, 11,12), we derive three things from our parents, namely "existence," "nourishment," and "education." Now a child cannot be brought up and instructed unless it have certain and definite parents, and this would not be the case unless there were a tie between the man and a definite woman and it is in this that matrimony consists. (ST Suppl. IIIae, 41, 2).

Moreover, Aquinas argues that change in law is to be avoided:

Wherefore human law should never be changed, unless, in some way or other, the common weal be compensated according to the extent of the harm done in this respect. Such compensation may arise either from some very great and every evident benefit conferred by the new enactment; or from the extreme urgency of the case, due to the fact that either the existing law is clearly unjust, or its observance extremely harmful. ST Ia-IIae, 97, 2 (here).

From this one can conclude that Aquinas a) would not recognize the identity of SS ‘marriage’ as marriage; and b) would not welcome the innovation involved in creating a new institution to include SS relationships.

At best, what we have here is an argument for civil partnerships alongside marriage, and even that is doubtful given the fact that what civil partnerships do is to create an new institution whose function is the promotion of vice rather than simply permitting vice.

But perhaps it might be objected that this is all rather petty fogging: that the question here is not what can be reasoned, in a quasi-legalistic way from Aquinas, but rather from the underlying principles involved. And that principle is (arguably) that positive law has to accept second best in a society which isn’t ready for the fullness of Catholic truth. In our society –or at least in some theoretical society- it may be right to legislate for same sex marriage.

Here, we have to go back to the understanding of politics in the Graeco-Roman tradition. The politician is essentially someone who is devoted to the flourishing of his people; and the aim of legislation is the promotion of that flourishing.

It’s a Sic and Nonderful Life argues that, if the price of agreement in a diverse society, blinded to the principles of natural law, is agreement on the introduction of same sex marriage, then the state is right to do that:

 [Regarding a…] law allowing homosexuals to marry, [i]t is important to remember there is a difference between ecclesiastical marriage and civil marriage. In truth, I believe that in a liberal democracy the state in order to maintain earthly peace must understand marriage according to its citizenship; and thus it is possible that such a state would consider homosexual marriage valid according to universal rights. This cannot affect the Church; if the state attempted to force an ecclesiastical body or authority to recognize or perform such a marriage, it would be crossing the lines and interfering with its citizens' pursuit of the highest good. A Christian may and should vote his or her conscience regarding the issue, but the state's recognition of homosexual marriage should not spark civil disobedience.

In this third example, the compromise which is made by liberal democracy may be at odds with the beliefs of the Church, but it does not directly require the Church or its members to do something which is against their belief or forbid them from doing something which their beliefs require. In many ways, it shows the flexibility of liberal democracy to accommodate a diverse population in peace. http://sicetnonderful.blogspot.com/2011/09/rawls-augustine-and-liberal-democracy.html

In essence, this is true. A democratic government has to govern according to the lights of its people. So, for example, if a government found itself with a population that was committed to polyandry, it might well have to accept the existence of polyandry in positive law. If we now find ourselves with a population who are committed to same sex marriage, we may likewise find ourselves bound to accept its existence as a (positive) legal fact. But the difference between the pre-modern, Catholic view, and the modern, liberal view is that, in the case of the Catholic ruler (or member of a democratic nation), the attitude of the people is a constraint, a blockage on the achievement of the complete good that has to be reckoned with, sometimes has to be compromised with, but which is regretted. In the modern, liberal view, the government is substantially indifferent to human flourishing, and is only concerned with a procedure by which competing views of human flourishing can be practically reconciled and a peaceful result achieved. In the modern state, the government has no view on what actually constitutes flourishing, but simply negotiates a practical settlement between competing views.

The problem with It’s a Sic and Nonderful Life’s analysis is that it suggests the liberal analysis of the role of the ruler as an adjudicator without a view of what constitutes human flourishing. That liberal view is not identical to the point made by Augustine and quoted by the blog:

The earthly city, which does not live by faith, seeks an earthly peace, and the end it proposes, in the well-ordered concord of civic obedience and rule, is the combination of men's wills to attain the things which are helpful to this life. Cityof God XIX, 17

Augustine is there arguing that men gather together to seek only natural goods (rather than supernatural ones) in the earthly city; but that view says nothing about those goods being purely subjective or any view of them being unchallengeable by other citizens. There are practices which are genuinely ‘helpful’ to the attainment of natural flourishing, and those which are not. And same sex marriage is a practice which is not, regardless of what anyone else may think.

The liberal, relativist view is behind the consternation I have met several times in combox debates: how dare you even suggest what a good life for me might involve? The alternative, Catholic, but still democratic view is of a ruler with substantive and objective view of human flourishing, but with, built into that view, a full respect for the conscientious views and autonomy of individuals as part of human flourishing, including a forswearing of violent compulsion in favour of reasoned debate. Faced with a foolish and recalcitrant population, the Catholic ruler may be obliged to give them their head. But that is done with regret, and in the full knowledge that what they will do is against their own natural, let alone supernatural, interests as human beings.