The debate over the legality of sexual interaction between people of the same sex have reached a high pitch once again after the verdict of the Supreme Court in the Naz Foundation case.* One of the pressure points in the formulation of the penal provision which allegedly criminalises such sexual conduct is the use of words such as “unnatural” and “against the order of nature”. On the other side, there is the question of social morality. On a parallel note, thus, evaluation of same-sex sexual bonding against the legal understanding of naturalness and morality when it comes to sexual relationships. The following paper concerns itself with the inspection of the new natural law argument in this regard. Classically, thinkers from this school have maintained the claim to moral worth lies only with those forms of sexual activity as is capable of furthering a common marital good among the participants.+ However, the natural law jurists argued that all types of extra-marital union, including, homosexual coitus, were bereft of such virtuous quality. The author evalutes the strength of this line of argument, critically analysing the new natural law concept of marriage en route, and attempts to determine whether same-sex unions are indeed as natural as heterosexual marital relationships.
Traditionally, the opposition to the concept of same-sex union was founded mostly on considerations of morality, propped on religio-cultural foundations, mostly on principles of Judeo-Christian ethics. Theological arguments have lost their force in modern legal thought because of the obvious reason that these are immune to debate on standards of logic or affirmation on reliable methods of enquiry which would be acceptable to all irrespective of their belief in the authority sanctioned by religion and God. Of late, the arguments take two main forms, one of which is consequentialist in their approach and does not concern itself within the scope of the present paper. This paper will deal with the evaluation of the other argument which is, a revamped approach based on the theories of the jurisprudential school of natural law. The chief proponents of this line of argument are Germain Grisez, though his views owe their essence in the Judeo-Christian dicta regarding marriage and sexual relations in general, he does not base his arguments on theology, and John Finnis. According to Koppelman, this approach, which he ornaments “the New Natural Law argument”, is “the most sophisticated philosophical case against same-sex marriage that anyone has developed”. In this paper, the author intends to undertake a critical evaluation of the new natural law arguments against same-sex unions, analysing relevant literature for and against, and try to come to an understanding if the arguments are tenable for supporting their position.
THE NEW NATURAL LAW ARGUMENT – DEFINITION OF MARRIAGE
A fundamental development which is observed in the newer natural law theories is the attempt to constitute a more integral definition of the social institution of marriage based on its intrinsic worth. Marriage is no longer viewed solely as a good instrumental and pursuant to other goods, such as companionship, procreation or parenthood, but as a good in itself. The modern naturalists have tried to close what appeared to be gaps in the reasoning of their predecessors. For instance, when looking at St. Augustine’s treatment of the concept of marriage, it is understood that he considered marriage as an instrumental good which makes possible the propagation of the human race, and also the realization the good of companionship. He was of the opinion that marriage is good not “solely because of the procreation of children”, but felt inclined to defend the bond between sterile couples, by emphasizing the natural companionship or “societas” between the “two sexes”. Here Finnis and Grisez located a lack of grasp on the intrinsic good of marriage, which is something novel in itself, and does not require justification on the parameters of procreation and the like.
Grisez certainly seems uneasy with the ends of procreation and companionship being mentioned as separate ends of marital unions, very evident from his comments on St. Thomas’s explanation of marriage as a natural phenomenon where he posits procreation, along with parenthood as a primary end. This he tries to rectify by synthesizing the element of companionship between the two sexes with ‘offspring, fidelity and sacrament’ to arrive at a more adequate view of the communion of married life as a whole. Certainly wary of the objection that the marital union of heterosexual couples who are somehow unable to engage in sexual activities suited for procreation would not be justified by a theory which purviews procreation as a definitive element of marriage, the new naturalists advocated a definition which views marriage as having an intrinsic value and meaning, which is free from instrumentality with respect to any other ulterior object. The influence of the twentieth century Church teachings is very influential on Grisez’s reasoning. Finnis follows in close footsteps. So, the modern natural law theory views marriage as something which is a good – a common good for the spouses as a union and not as separate individuals – in itself, not exclusively directed towards extraneous ends such as procreation of children, parenthood and family, which are merely the fulfilment of the communion.
WHY NOT SAME-SEX MARRIAGE?
Now assuming the initial definition as a valid one, the primary question remains: is a same-sex union capable of achieving the good of marriage? Nay, say the naturalists. Pat comes back the challenge: why not?
Homosexual activities are classified as non-marital sexual conduct in nature in the first place along with adultery, casual encounters, masturbation and bestiality. The basic view is any sexual activity in which the participants cannot expect to fulfil the good attained by marital communion is not morally permitted activity. So what incapacitates homosexual couples from realizing such good?
It is argued that homosexual acts cannot, like all other marital acts, attain the kind of unity experienced by heterosexual married couples, and for that same reason, it follows that engaging in any kind of non-marital sexual activity involves instrumentalization of the physical faculties of the participants for the purpose of mere sexual gratification, thereby, resulting in “dis-integrative manipulation of different parts of their one personal reality”. It is said that marital intercourse is something just more than mere experience, it is a symbol of the communion, which binds the couple into a single functional entity or reality, capable of actualizing and allowing the couple “to experience their real common good – their marriage with the two goods, parenthood and friendship, which (leaving aside the order of grace) are the parts of its wholeness as an intelligible common good even if, independently of what the spouses will, their capacity for biological parenthood will not be fulfilled by that act of genital union”. In a simplifed manner, it is said that homosexual conduct in itself is antithetic to the “intelligible good” as may be expected to be realized by heterosexual couples in a marital communion. So, as Finnis says, parenthood and friendship are part of the whole of the good of marriage, but are not definitive constituents in such manner that if one is absent, it would disintegrate the communion.
As understood before, if the spouses engage in intercourse irrespective of whether such activity leads to reproduction, it is not inconsistent with furthering their common good as a married union. How does that compare with when Finnis says “the common good of friends who are not and cannot be married (for example, man and man, man and boy, woman and woman) has nothing to do with their having children by each other, and their reproductive organs cannot make them a biological (and therefore personal) unit”? There are two parts to the disability that Finnis points out. Firstly, he says that any common good that a homosexual couple might realistically hope to achieve does not include procreation of children. One has to agree with that. For an act of intercourse to be morally acceptable, it has to aim at such a union which has procreation as its fulfilment. Is homosexual activity capable of such union? Answer has to be in negative. Therefore, Finnis continues, “… [b]ecause their activation of one or even each of their reproductive organs cannot be an actualizing and experiencing of the marital good … it can do no more than provide each partner with an individual gratification”. Finnis’ conclusion about the highest possible benefit that homosexual couples can hope to achieve may be criticized as overtly simplified and harsh. Homosexual conduct might contribute to the cause of emotional intimacy as much as heterosexual activity does. However, as the argument goes, mere emotional intimacy or expression of affection does not ensure the significance of a marital union. As Grisez says, sexual activity is not undertaken by people as a substitute or “in preference to conversation and mutually beneficial acts because it is the more expressive means of communicating good will and affection”, but “because it provides subjective satisfactions otherwise unavailable.” Pursuit of such satisfactions, if anything, stops short of having a meaning that a marital union between persons of different sexes might possess.
Therefore, it appears that, according to the new natural law argument, the heterosexuality of the married couple is a pre-condition to attaining the good of marriage. The question that is to be asked now is what is it about heterosexuality that makes it a defining element of marital good? What does Finnis mean indeed by the phrase “biological unit”? Perhaps heterosexuality is viewed as a standard of sexual complementarity that must be present for the good of marital communion to be realized. Because of their diverse sexual qualities, needs and abilities, the bonding of a male with a female might indeed prove to be fulfilling for one another and as a result, work as a necessary condition for a mutual commitment, which is open-ended and exclusive. To refute such an interpretation, one would need to ask if two persons who are of the same sex can be sexually complementary with respect to each other. Weithman promptly points out the requirement of sexual complementarity does not limit to reproductive attributes and capacities, but “might also refer to diverse sexual needs and desires, and capacities for giving and receiving love.” Therefore, two persons of the same sex need not necessarily be sexually identical and conjugal activity between them may work towards developing a mutual commitment and acquire qualities of open-endedness and exclusiveness – “since by sharing sexual activities, they share with one another ex hypothesi they share with no one else” – akin to that in a heterosexual union. If it be so, does it hold that “those acts cannot express or do more than is expressed or done if two strangers engage in such activity to give each other pleasure, or a prostitute pleasures a client to give him pleasure in return for money, or (say) a man masturbates to give himself pleasure and a fantasy of more human relationships after a gruelling day on the assembly line”?
Even if the answer is given in the negative, Lee and George would argue that no amount of mutual affection realized in a non-marital bond would succeed to match the significance of what a marital union stands for, i.e., it would continue to be a pursuit of an illusory good. Why does then sexual conduct outside the scope of marriage fail to achieve whatever it is that a married couple can hope to? The naturalists have always been of the opinion that the real significance of marital union does not lie merely in the mutual provision for sexual pleasure – pleasure by itself has been denied of containing any intrinsic worth, unless it forms part of a “genuinely fulfilling activity”, or any kind of care and affection which would be but a variant of the good of friendship, for the realization of which intercourse cannot be said to be the most prudent means. According to Lee and George, the missing link can be found by inquiring into the ideal meaning of sexual acts as a symbol – “what sexual intercourse between a man and woman is in reality”. So, it appears that all kinds of sexual acts, marital or non-marital, seek to achieve all that intercourse between a man and woman can potentially achieve. But as discussed above, the qualities of open-endedness and exclusiveness cannot be exclusively attributed to the fact of heterosexuality of a couple.
Procreation, the naturalists say, is another such achievement. Indeed so, if we trace back Finnis’ words as observed earlier. Parenthood, he says, is part of the intrinsic good of marriage. In the words of Grisez, “Parenthood is the specific, intrinsic perfection of marriage”, and that “[t]heway children come to be sets requirements for marriage”. It appears that the value of reproduction a heterosexual couple bring into the good of marriage contributes to the realization of their communion as a functional unity. It is very consistent with the condemnation of acts of intercourse which do not culminate into seminal discharge of the male organ into the female organ, like acts of sodomy, coitus interruptus or using deliberate contraception among even heterosexual married couples, or acts of masturbation, because they are not conducive to procreation, and thus lead to disintegrative instrumentalization of the organs for purposes other than furthering the marital good. Homosexual unions cannot even be said to have the potentiality of reproduction as a result of their sexual activity, thus are inherently lacking in the capacity of affording the said value to any attempted conjugal relationship.
But is it always the case that two persons of different sexes tying the knot guarantee the importation of the value of procreation to their unity? This is the question that makes way for the oft-resorted to sterility argument. One fathoms that the status of procreation as an end of marriage in the earlier natural law definitions of marriage had left the opportunity for criticism on these lines. Because if parenthood is posited as an end of marital union, how does it account for marriages where one or both participants are for one reason or another deficient for the purpose of giving birth to children? It is to block this gap that the natural law argument developed on the lines that parenthood is not an extrinsic end of marriage but very much a constituent of the intrinsic worth of the institution. While not even the staunchest of natural lawyers would say that marital intercourse must always culminate in conception of a new embodiment of life, because such a result is not always in the control of the participants, one can always say that acts of intercourse which are not fruitful in the procreative sense were undertaken with an intent to procreate in a manner which has the potentiality of procreation. So, from procreation being viewed as an end of marriage it came to be understood as a function of marriage. Thus, it might follow that marriage is an institution which enables the participants to experience and actualize themselves as a unity one of the functions of which is procreation. Such a hypothesis would indeed disqualify same-sex couples from the scope of marriage.
And yet, if homosexual couples are excluded, what qualifies the sterile heterosexual couples? Can it indeed be said that sterile couples are capable of constituting a union which has a function of procreation? For sake of argument, the class of couples who are referred to as “sterile” may be divided into three categories: firstly, sterile couples unknowingly so – who do not have knowledge of the sterility of either of the participants, secondly, sterile couples knowingly so post consummation – where at the time of consummation none of them are sterile or there is no knowledge of the sterility of either of them, but it is only after some length of time when such knowledge is revealed, and thirdly, sterile couples knowingly so pre-consummation – where the fact of sterility is known before consummation of marriage.
In the first case, it might be said that the heterosexual married couple engages in a conjugal union with the intent to procreate. But can their acts of intercourse be said to be undergone in a manner conducive to the fulfilling the function of reproduction? Apparently, the answer is not all that straightforward. I’ll hold onto the question for now. Progressing to the second case, there is no doubt that as long as the knowledge of sterility does not come to the fore, the couple can be presumed to have the intent to procreate by means of conjugal union. It is also clear that when they can be said to possess that knowledge, there cannot be any reasonable intent to procreate. Even in the third case, the participants come together from the very outset of their conjugal journey without any reasonable intent or hope to procreate through bodily union. So the element of intent can be eliminated from being a definitive one for qualifying a heterosexual couple as capable of fulfilling the function of reproduction.
Let the focus be shifted back then on the expression “a manner conducive to the fulfilling the function of reproduction”. Can it be said in all the three cases above that intercourse between the married couple is conducted as a means to bring about the perfection of marriage in giving birth to new life? It might be argued that “even when some biological condition happens to prevent that unity resulting in generation of a child”, the institution of marriage is “shaped by its ordination to children”, because “marriage must exist before it is perfected by actual parenthood”. Is it then the fact that a man and a woman have mutually fulfilling reproductive faculties which make it a pre-requisite for qualifying them eligible to enter into a marital bond? If so, one can always argue in case of couples who are affected by the disability to reproduce by way of biological factors at a later stage of their communion that at the time when they entered into the bond they fulfilled this basic qualification. So, even if they are not blessed by parenthood, it does not denigrate the status of their unity.
But then, what about couples who are so disabled before they tie the knot, whether they have the knowledge or not? Now this question is often attempted to be answered by the “one-flesh” argument. When Finnis says “[t]he orgasmic union of the reproductive organs of husband and wife really unites them biologically”, the reason is “[a] husband and wife who unite their reproductive organs in an act of sexual intercourse which, so far as they then can make it, is of a kind suitable for generation, do function as a biological (and thus personal) unit and thus can be actualizing and experiencing the two-in-one-flesh common good and reality of marriage, even when some biological condition happens to prevent that unity resulting in generation of a child”. Now how does Finnis’ expression “a kind suitable for generation” match against the understanding of “a manner conducive to the fulfilling the function of reproduction”? If a heterosexual couple are sterile or past the age up to which they are expected to be fit for procreational activity at the time the participants wed each other, their communion lacks the potentiality of parenthood from the very beginning in any probability whatsoever. Therefore, any union between them cannot be said in consonance with being in any way actually facilitative to fulfilling the function of parenthood. Then, there is only one way left in which the expression “a kind suitable for generation” can be interpreted as “a manner conducive to fulfilling the function of reproduction”: heterosexual intercourse as a form of sexual activity representing the function of procreation.
The quality of heterosexuality of the couple stripped to its bare minimum leads to the understanding that it is the mere form of activity that is capable of fulfilling the function of procreation which enables the husband and wife to fulfil their destiny of being a biological unity. So, though the couple are not engaging any activity which would actually facilitate procreation but because they are engaging in the type of conduct that has the potentiality to facilitate the said function, they are adding some value to the good of marriage. Lee and George seem to express the same understanding:
“People who are not temporarily or permanently infertile could procreate by performing exactly the same type of act which the infertile married couple perform and by which they consummate or actualize their marital communion. The difference between sterile and fertile married couples is not a difference in what they do. Rather it is a difference in a distinct condition which affects what may result from what they do.”
But the question is, what value? For as Koppelman says, “A sterile person’s genitals are no more suitable for generation than a gun with a broken firing pin is suitable for shooting”. What value can a sterile couple with prior knowledge of sterility expect to add that a same-sex couple cannot? The new natural law arguments do not seem to take into account the element of value in this aspect, in the same vein when enquiry is made into the value of homosexual conduct in furthering the good of friendship or that of contraceptive sex. The following analogy resorted to by Lee and George might seem interesting in the context:
“Suppose Smith has a temporary digestive disorder so that, although he can eat, he frequently vomits, and thus many of his meals are not digested. As a consequence, when Smith sits down to eat a meal he cannot be sure whether this particular one will result in increased nourishment. Still, he continues to eat, and his meals as a set are ordered to his nourishment. When Smith eats he is exercising his digestive system: what he does is the same for every meal, though many individual instances do not result in nourishment. He is engaging in nourishing activity, even if this particular act does not nourish, because he is performing the behaviour that is in his power, which is capable in some instances of nourishing. One could say that he is performing a nourishing-type act.”
Now, the first problem with the analogy is that the act of eating and intercourse are not like, in so far as the number of actors included. Secondly, supposing Smith cannot fulfil the function of nourishment by the act of eating, would he consider it a valuable type of activity associated with the function of nourishment? Any prudent person would resort to artificial methods of nourishment, rendering the action of eating a valueless utility. Forwarding the same reasoning, if the act of intercourse is reduced to a valueless utility in cases of sterility in married couples, the procreative argument against same-sex marriage does not seem to hold.
Grisez argues that “sodomites violate the body’s capacity for self-giving”. But then, consider the case where either the male or the female participant in a marriage possesses the capacity to procreate and the other does not, and there is mutual knowledge of such fact. Does it not make the former susceptible to the same allegation? He or she could have given himself a higher chance of fulfilling his or her potential of bringing about the perfection of the marital union entered into by that person with another fertile person.
A very cognate argument run by Grisez and others is the characterisation of homosexual activity as disintegrative, because “[f]or want of a common good that could be actualized and experienced by and in this bodily union, that conduct involves the partners in treating their bodies as instruments to be used in the service of their consciously experiencing selves; their choice to engage in such conduct thus dis-integrates each of them precisely as acting persons”. In view of the analysis so far, the reason preferred behind the denial that homosexual couples are capable of a common good akin to that of heterosexual couples was the absence of the physical faculties which enable procreation. However, it is now understood that the mere condition of heterosexuality of the couple does not make it in any way morally more eligible for entering into a marital bond in so far as the function of procreation is regarded as an essential part of the intrinsic worth of marriage. Thus, a homosexual couple is in no way less capable of actualizing and experiencing a mutually fulfilling communion, which is a common good. Therefore, as long as conjugal activity in a same-sex union strives to pursue the realization of a common good as a unity, “a case can be made that their joint sexual activity, even if neither coital nor procreative, can still deepen their union and preserve their integrity”. This in turn would ensure that their unity would not be restricted to the realm of being an instrument of their personal reality, but a part of it.
Acknowledging that the above criticism of the natural law argument essentially depended on the emphasis on value afforded by the factor of sexual orientation towards the good of marriage as opposed to the form, it could still be argued on that the form itself provides some value in the societal context. Finnis opposes legalisation of same-sex marriages on an assumption that doing so will threaten the institution of marriage itself and also the concept of traditional family, as if it will translate into the endorsement by the State of a kind of activity which runs against the spirit of heterosexual unions in a sense that citizens would feel encouraged to adopt an alternative preference to performance of sexual acts, which would in turn threaten the obliteration of the procreative type of sex and marriage. However, such an argument would almost be a consequentialist one, speculative in character and based on empirical claims, which does not quite bear on the question of intrinsic worth with respect to conjugal relationships.
*Suresh Kumar Koushal and anr. v. Naz Foundation and ors., Civil Appeal No. 10972 of 2013 (S.C.).
+See generally Grisez, infra note 4.
Linda C. McClain, Deliberative Democracy, Overlapping Consensus, and Same-Sex Marriage, 66 FORDHAM L. REV. 1241, 1246 (1998).
Andrew Koppelman, The Decline and Fall of the Case against Same-Sex Marriage, 2(1) U. ST. THOMAS L.J. 5, 15, 25 (2004).
Id. at 16.
Douglas W. Kmiec, The Procreative Argument for Proscribing Same-Sex Marriage, 32(1) HASTINGS CONST. L.Q. 653 (2004).
Germain Grisez, The Way of Our Lord Jesus, Volume 2 – Living A Christian Life, Chapter 9-A-1-b http://twotlj.org/G-2-V-2.html.
Id. at Chapter 9-A-1-c.
Id. at Chapter 9-A-1-b.
John M. Finnis, Law, Morality and “Sexual Orientation”, 69(5) NOTRE DAME L. REV. 1049, 1065 (1994).
Id. at 1069.
Id. at 1066.
Koppelman, supra note 2, at 20.
Grisez, supra note 4, at Chapter 9-E-3-e.
Paul J. Weithman, Natural Law, Morality, and Sexual Complementarity, in Sex, Preference, and Family: Essays on Law and Nature 227, 229-230 (David Estlund & Martha Nussbaum eds., 1997).
Finnis, supra note 7, at 1067.
Weithman, supra note 13, at 239.
Finnis, supra note 7, at 1067.
Patrick Lee & Robert P. George, What Sex Can Be: Self-alienation, Illusion, or One-flesh Union, 42 AM. J. JURIS. 135, 152-153 (1997).
Id. at 153. See also JOHN FINNIS, NATURAL LAW & NATURAL RIGHTS 95-97 (2d.ed. 2011).
Lee & George, supra note 18, at 152.
Grisez, supra note 4, at Chapter 9-A-2-b.
Id. at Chapter 9-A-2-d.
Grisez, supra note 4, at Chapter 9-E-3-e.
Finnis, supra note 7, at 1065.
Includes cases where the female partner is past menopause or where she is unable of further conception because of pregnancy.
Finnis, supra note 7, at 1068.
Grisez, supra note 4, at Chapter 9-A-2-f.
John M. Finnis & Martha Nussbaum, Is Homosexual Conduct Wrong? A Philosophical Exchange, 209 New Republic 12 (Nov. 15, 1993), http://www.scribd.com/doc/83337329/Finnis-Nussbaum-Is-Homosexual-Conduct-Wrong-a-Philosophical-Exchange.
Finnis, supra note 7, at 1068.
Lee & George, supra note 18, at 150.
Koppelman, supra note 2, at 24.
Lee & George, supra note 18, at 151.
Grisez, supra note 4, at Chapter 9-E-3-e.
Finnis, supra note 7, at 1066-67.
Koppelman, supra note 2, at 21.
Finnis, supra note 7, at 1070.
See Mark Strasser, Natural Law and Same-Sex Marriage, 48 DEPAUL L.REV. 51, 57-63 (1998).