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  • The Logic of the Court and the Prospect of Homosexual Marriage

    by Robert R. Reilly

    Supreme Court

    Next week, the Supreme Court will begin its consideration of two cases, one concerning the Defense of Marriage Act and the other California’s Proposition 8 Amendment, which may settle in the near-term the questions concerning the constitutionality of same-sex marriage. Both the Marriage Act and Proposition 8 define marriage as being between a man and a woman. The litigants, along with the Obama administration, claim that this definition denies a fundamental human right to homosexual couples. In order for this claim to be true, a marital union would have to be just as legitimately based upon a sodomitical act, as on a conjugal one. Can this be so? How might the Court decide on this?

    It turns out that the Court has already done much to prepare the ground work for the legalization of homosexual marriage through a series of extraordinarily misconceived rulings that have legitimized the separation of sex from procreation. In order to see them in their proper light a little history regarding the status of sodomy in America is necessary.

    Long before the invention of the word homosexual in the late 19th century, sodomy was morally regarded as a gravely disordered act, no matter by whom performed. In the Commentaries on the Laws of England, a hugely influential book in the American colonies and on the formation of the American legal system, William Blackstone wrote that “[Sodomy is] an offense of so dark a nature, the very mention of which is a disgrace to human nature, a crime not fit to be named (Vol. IV, 1769).”  Blackstone’s work was frequently cited in American jurisprudence.

    One of the more contemporary Blackstone citations came in Supreme Court Justice Warren Burger’s concurring decision in the Bowers v. Hardwick (1986) case, which upheld the constitutionality of an Alabama law against sodomy because, said Justice Byron White, the Constitution does not confer “a fundamental right to engage in homosexual sodomy.” Agreeing, Burger wrote: “…the proscriptions against sodomy have very ‘ancient roots.’ Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law…. During the English Reformation when powers of the ecclesiastical courts were transferred to the King’s Courts, the first English statute criminalizing sodomy was passed. Blackstone described ‘the infamous crime against nature’ as an offense of ‘deeper malignity’ than rape, a heinous act’…To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

    The Bowers ruling also pointed out that, “Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 states outlawed sodomy, and today, 24 states and the District of Columbia continue to provide criminal penalties for sodomy performed in private in between consenting adults” (Emphasis in original).

    But “cast aside millennia of moral teaching” is exactly what the Lawrence v. Texas ruling did 17 years later in 2003. This decision declared a Texas statute “forbidding two persons of the same sex to engage in certain intimate sexual conduct” unconstitutional, and, in the process, overturned the Bowers ruling in order to do it. The reasoning in Lawrence v. Texas needs to be examined closely because it clearly followed the logic and pattern of preceding decisions, except Bowers, regarding reproductive and sexual matters, and provided the basis for the challenge against the legal definition of marriage as being between a man and woman. It also distressingly revealed the level of intellectual poverty that has infected the legal profession as few of its members seem capable of grasping the relationship between morality and law. The critiques of court cases which follow here are not given to address the constitutional legal issues of whether due process or equal protection were jeopardized in some way, but to expose the underlying philosophical assumptions in the Justices’ reasoning.

    In delivering the opinion of the court, Justice Anthony Kennedy claimed that “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct” upon which the state should not intrude. The present instance in which two men were prosecuted by the State of Texas for admittedly engaging in anal intercourse, Justice Kennedy said, “involves liberty of the person both in its spatial and in its more transcendent dimensions.” Therefore, the Court asked itself, is it constitutional for a state to make “it a crime for two persons of the same sex to engage in certain intimate sexual conduct”? One would think that the answer would in large part depend on the moral character of the act in question, i.e. anal intercourse. The Court stated that, “the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” That may be well and good, but at least such a tradition should invite an examination of whether the “practice” in question is, in fact, immoral. However, the court never addressed this issue except tangentially.

    At least the Court showed some awareness that American sodomy laws historically “sought to prohibit noncreative sexual activity more generally,” but seemed clueless as to why anyone should wish to have done this or whether they should have. Rather, the Court put on display the inexorable logic behind a succession of cases which, step-by-step, went about separating sex from procreation or, more accurately, showing what the separation of sex from procreation means.

    First came Griswold v. Connecticut (1965), in which the court invalidated an 1879 state law which prohibited the sale of contraceptives. The Griswold ruling created a “right to privacy” for married couples upon which the state could not intrude. Therefore, according to its reading of the Constitution, married couples could legally obtain contraceptives.

    Step two was Eisenstadt v. Baird (1972), in which the Court found unconstitutional a law prohibiting the distribution of contraceptives to unmarried persons. The Court declared that, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The “right to privacy” therefore does not inhere in the marital bond, but in any individual adult, as marriage, it turns out, is nothing more than an “association between two individuals.”

    Traditionally, one would have thought that a decision to get married would have preceded “the decision whether to bear or beget a child,” or at least that those who decided to bear or beget a child would have understood that it was necessary to get married first. This does not seem to have occurred to the Court. But what of those who decide not “to bear or beget a child” and not to get married? How can the government possibly intrude upon something that you decide not to do? Well, only if you actually do decide to do something—which is to copulate with the expressed intention of not begetting a child. Do you possess a right to do this, along with a concomitant right to obtain the necessary tools to effect this purpose? Eisenstadt answered, yes. After all, in order to copulate, you need an “association between two individuals,” much like that of marriage, even if it only lasts half an hour. While it lasts, each individual preserves his or her “right to privacy.” In other words, contracepting an act of fornication is a right under the Constitution, just as it is in marital contraception.

    But if married couples and adult singles who temporarily form a couple have a right to contracept, what about minors under the age of 16 years? What about their privacy rights? With impeccable logic, the Court took step three in Carey v. Population Services International, (1977), in which it found that it is unconstitutional to prohibit the sale of contraceptives to minors because minors are entitled to the same constitutional protections as adults. Everyone has the right to contracept.

    Step four chronologically preceded step three, but comes last in the inexorable chain of logic. Step four is, of course, Roe v. Wade (1973), in which the Court found that an unborn child is not a “person,” and therefore not sheltered by either due process or equal protection. The Court declared that the “right of privacy…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

    This ruling perfected the fissure created by the preceding separation of sex from procreation. As the Lawrence decision pointed out, “The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade.” Indeed, they were. If everyone has the right to contracept a generative sexual act, why should they be held accountable if the contraception fails and a child is generated? Hasn’t the child violated their right to privacy? What right had the child to intrude?

    Recall that the Eisenstadt case had said that there should be no “unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child” (emphasis added). Obviously, in a contracepted act of intercourse, a decision has been made not to beget a child. However, in apparent disregard for this decision, a child arrives anyway. What is one to do? If the child has already been begotten, can one’s “right to privacy” still cover the bearing of the child? Yes, said Roe v. Wade. One can decide not to bear a begotten child.

    Certainly, the legalization of abortion through this decision was an act of barbarity, as barbarism is defined as the inability or unwillingness to recognize another person as a human being. Abortion brings to completion the denial of procreative sex by nullifying its effects, which are seen as accidental. If you have an accident and conceive a baby, you can just clean up the mess by aborting it. The disavowal of the relationship between sex and procreation kills the child. The child is, or rather should have been, the incarnation of the love between the man and the woman. The denial of the child is the denial of this love. It also raises a troubling question: if the fruit of the tree must be destroyed, what does this say of the tree itself?

    As E. Michael Jones has written, sex outside the moral order leads to death. In abortion, this result could not be more explicit.  This can be stated another way, as it has been by Fr. James Schall, though not directly in relation to abortion: “the state can take, and the democratic state seems more and more inclined to take, the direction of…killing anything that stands in the way of its imposing its order on the souls of men, men too often willing to let it happen.” The child stands in the way of this imposition, as its presence is a refutation of the manufactured “right to privacy,” and suffers death as a result.

    If even the existence of a child cannot stand in the way of the imperative of contraceptive sex, what can? Can the definition of marriage as being between a man and a woman withstand its logic? In light of what it has already found, how can the Court exclude from the privilege of marriage those who exclusively devote themselves to sodomitical acts which by their nature are sterile? If there can no longer be laws against these acts, why can’t there be laws for them—as the foundation for marriage? There are very good answers to these questions, but the majority members of the Court in the cases cited above are unaware of them. The Court may find technical, jurisdictional reasons for limiting the damage from the two cases before it, but if it follows its now well-established line of reasoning, the results will be devastating.

    The separation of sex from procreation logically leads to the legalization of contraception, then next to abortion, and finally to homosexual marriage, and beyond. The logic is compelling, in fact, inescapable. Only the premise is insane.

    The views expressed by the authors and editorial staff are not necessarily the views of
    Sophia Institute, Holy Spirit College, or the Thomas More College of Liberal Arts.

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    • lifeknight

      Excellent article. The ruling of the Supreme Court will boil down to the final chapter on the assault of society upon Natural Law.

    • Alecto

      “It also distressingly revealed the level of intellectual poverty that
      has infected the legal profession as few of its members seem capable of
      grasping the relationship between morality and law.”

      With a majority of Catholics on the Court, one would think there would be some deference to that relationship. John Roberts has proven he not only wants to render concept of a link between morality and law null and void, but he has succeeded in dealing the final blow to the Constitution as supreme law of the land. I wish I could write I pray for him, and in a way I do. I pray that justice will be done to him. I would rather the tyrant appoint one of his own than be betrayed by a false friend.

      • Ford Oxaal

        For me, the jury is still out on Roberts. I read the opinions, and it seems to me things are set up to win the religious freedom war, while simultaneously throwing back to Congress the mess they created, as well as finally, at last, boxing in the commerce clause, and keeping the states from being blackmailed by the feds.

    • dch

      “Everyone has the right to contracept.”

      1. Yes they do and there is ZERO chance of that changing……..Absolutely Zero.
      2. Contraception and abortion have nothing to with marriage equality laws, these are totally unrelated issues under CIVIL law.

      3. Civil Same Sex Marriage ALREADY exists in nine states and is not going away; there is nothing opponents can realistically do about that.
      4. The next generation of adults (under-30) overwhelmingly support marriage equality – as they become the center of politics in the next 20 years anti-equality politics will become a nonstarter. (Ask a 21 year old about this subject and you will find that they are not bothered by other people’s sexual orientation.)

      • Ford Oxaal

        State sanctioned marriage no longer exists (New York was the final state to cave to no-fault divorce in 2010). So all this talk of ‘marriage equality’ is strictly a matter of appearances.

      • Bono95

        I’m under 30, and I don’t believe in same-sex marriage for the simple reason that no matter what any law says, it just plain cannot happen. 2 men or 2 women cannot become 1 flesh and conceive children. As for sexual orientation, I believe that people who have same-sex attraction should NOT be insulted, injured, or treated like freaks. They should be loved and respected like all other human beings, but the should know or be informed in loving but firm matter that while SSA itself is not a sin, homosexual acts are gravely sinful and hazardous to the health of society and of individuals.

    • Ford Oxaal

      There is another, even more fundamental mistake (beyond divorcing sex from procreation) made by post ‘enlightenment’ societies: the so-called “social contract” is not between individuals, but between families. There are no stronger loyalties than to family. The family precedes the individual, and individual rights derive from family rights. Society exists for the well being of families (parents and their children — the next generation). The moral structure of society was bound to crumble under the mistaken notion that the individual is the kernel of society. The disastrous effects of this false premise finally showed up in American society as the nullification of marriage through no-fault divorce — as of 2010 the law in all 50 states. The question is how low the rate of intact families will go when marriage has no state support, and whether the intact family can survive, let alone thrive. The same sex marriage issue is an issue that would have never come to the fore had the marriage contract (until death do us part) remained somewhat in existence. Because society has already eliminated state sanctioned marriage, the effort towards so-called same sex ‘marriage’ is a charade of sorts, whose real goal is simply to normalize same sex attraction in the minds of the next generation. It is the attempt by the non-procreative class to co-opt the fruits (children) of the procreative class. And why not? The procreative class has already declared open season on its own children: prevent them, kill them, outsource them, and bankrupt them, all in the name of pleasures of the flesh for the sake of the individual enjoying the pleasures. As Christian morals fade, the progressive morals, including various forms of pederasty, come to the fore. But even under natural law (law discoverable through reason alone) there is an alternative path. It does however require the recognition that the social contract is between families, not individuals.

      • Phil

        Nobody is advocating pederasty.

        • Ford Oxaal

          Perhaps not explicitly. But what *is* being advocated is that non-procreative, same sex pleasures of the flesh are so laudable, so beneficial to all of society, that those activities and relationships which give rise to them must be enshrined at the same fundamental level as marriage itself, and in fact constitute a form of marriage. But in today’s society, you can walk away from a marriage with impunity — with no social or legal impediments. So what is really being advocated is the enshrinement of the pleasures themselves — not the fruits thereof, not the benefits of thereof, but just the pleasures. I ask you, if these wonderful pleasures have no negative consequences, and in fact, are so highly esteemed as to warrant the sanction of “marriage”, then why should they not be universally advocated and available to all? And premature boys are perfectly capable of part of such pleasures, no? And so while pederasty is not yet being explicitly advocated, the logic chain seems to lead there.

          • Phil

            I’d disagree. As a gay man who looks forward to my future marriage I’m not that interested in the pleasures of the flesh. If I just wanted to have sex with men I would hire prostitutes.

            What I really look forward to is developing a stable long-term relationship and raising my children to be mature adults. The debate is really about whether that should be endorsed through marriage, not whether society should endorse sexual pleasure.

            • Ford Oxaal

              So when you say long-term, do you mean lifelong? If so, then why do you feel the need for state sanctioned marriage? Under state sanctioned ‘marriage’, either party can just walk away from it and remarry. The way I see it, no-fault marriage is a charade, whose sole purpose is to legitimize illicit sexual acts such as adultery and fornication. For example, if I get “married”, and I discover my wife is joyless, and, I find what seems like fulfillment by committing ‘monogamous’ adultery, then I can unilaterally get divorced and remarried, and thus put on airs of a legitimate new relationship — and even have legal grounds to explain it to my kids. Or, if I get an unmarried woman pregnant, I might marry her to legitimize the act of fornication, without risk of being permanently held responsible for providing 24/7 support for my new family. Therefore, the general push for same sex marriage seems to me simply as a mechanism to add sodomy to adultery and fornication as the behaviors supported by the state. And this push comes at a time when the intact family, that which is best for children, is going extinct. Instead of extending the no-fault marriage license, we ought to eliminate it, either by admitting it is a charade, or by restoring it to something closer to “until death do us part”.

              • Phil

                Yes I do mean life-long.

                I disagree that the push for same-sex marriage is merely a mechanism that aims to legitimize certain sexual acts, because quite simply, all of those sexual acts are possible outside of marriage, and the people who are most interested in committing those acts are not interested in marriage. Also, do not forget that adultery still carries a social stigma and is considered a violation of the marriage terms.

                The push for same-sex marriage is really a push for legal and social recognition of families headed by same-sex couples. These families already exist, and suffer without the rights of marriage. The question facing you is whether or not alleviate their condition and improve the lives of their children.

                • Ford Oxaal

                  Would you agree that no-fault divorce nullifies marriage as a lifelong commitment?

                  • Phil

                    I agree that it does, but its up to the individual themselves to decide whether or not they want the commitment.

                    • Ford Oxaal

                      So we agree no-fault marriage is “toothless”. My next question is whether you believe marriage *should* be “toothless”? And I have to say, I really appreciate your engagement in this conversation, so thank you.

                      • Phil

                        I don’t think it is really correct to ask whether marriage is toothless or not. By toothless, I presume you mean that modern marriage laws make it too easy for couples to divorce. I do not think this is a problem, because it is undeniable that many people do fall into unhappy marriages and it is better for such people to separate. To make it more difficult for them to marry would simply trap them into a bad life.
                        If we want to give marriage real teeth, we would need to reinforce the respect it is given socially and culturally so that people take their marriages much more seriously and are less likely to make questionable couplings. While making marriage and divorce more difficult could effect this change, it would only be a means to an ends.

                      • Ford Oxaal

                        Well, I think we should set up real punishments for bad choices. So we disagree on this. Broken families are a societal disaster in every possible way.

              • http://twitter.com/pdmcguirelaw Paul McGuire

                If you father a kid by an unmarried woman you are already going to be held responsible in most states regardless of whether or not you marry her. If she knows who the father is and after you leave ends up on public assistance you can be sure that the state will come after you for child support based solely on your biological connection to the child. You might be able to escape that if you are lucky and another man steps up and marries the woman, thus taking on the responsibility of raising the child.

                If you married her first and then separated you would likely be required to pay spousal support as well as child support. Of course how long you are required to pay spousal support depends on how long you were married before you then leave her.

                Still, your suggestion that no fault divorce makes it painless to escape a marriage is not supported by reality. Often the cost of legal representation to terminate the marriage is quite high, especially when you have children or joint property that needs to be dealt with. Then, as mentioned above, you have child support and spousal support obligations that are in many states enforced upon threat of jail time (in some cases failure to pay child support can result in criminal penalties).

                The main result of the recent move away from children being raised exclusively by married couples is that states have developed ways to ensure that men pay child support for the children they father whether the child is born within or outside a marriage.

                • Ford Oxaal

                  In New York, all my wife could get from the guy who fathered her first child, broke her heart, and put pressure on her to end the life of the third party she now carried, and who would later become my adopted daughter, was birth expenses. But these are particulars that will evolve, and may have evolved since. My point is that the fornicator who gets a girl pregnant is able to marry the girl, avoid having his brains blown out by the girl’s shotgun wielding father, and then later escape having to ***be there*** for his new family. Monetary ‘support’ is just his crass, cowardly way out. The fornicator is able to use marriage for his own selfish ends, and society is left with his handiwork — a single mom and impoverished child. I therefore see no-fault marriage as encouraging injustice without doing much of anything to advance justice. Similar story for the adulterer. As if money can in any way make whole the damaged parties as well as the damage done to society. So no, reality does support my contention that no-fault divorce makes it painless, relatively so, for the fornicator and adulterer to do his deed. And at enormous cost to society. This is the context in which we see entering, stage left, advocates for same sex marriage.

            • robert reilly

              Here is the problem. Spousal love requires becoming “one flesh.” This is not a matter of “who says,” but of how we are constituted by nature. Anything else is counterfeit. To make the counterfeit official, as in legal same-sex marriage, is to substitute the unreal for the real. If you cannot become “one flesh” with the person whom you love, that is Nature’s way of telling you that the character of your love is not spousal, but something else.

              Love has its proper expression according to its subject and object – sisterly love, parental love, conjugal love, the love of friendship are each distinct and are expressed accordingly. A child does not love its father with parental love, because the child is not the parent of its father. It may seem silly to state something so obvious, but this is what must be done when reality is being contested.

              Love always seeks the well-being of the loved one. This is true in all sorts of love, whether between parents and children, between children themselves, or between friends of the same gender. Sexualizing the love in these relationships would be profoundly mistaken since none of these loving relationships is or could be spousal in character. Therefore, sex between parents and children, between siblings, or between unmarried friends, or between friends of the same gender is objectively disordered and will inflict harm on the parties involved no matter how they “feel” about it. Non-conjugal sex, by its nature, is opposed to the loved one’s well-being.

              • Phil

                I’m sorry, but the idea that idea that spousal love depends on becoming ‘one flesh’ – ie, having sex – seems rather shallow. Ultimately it is as meaningless as psychoanalysis. What would it entail besides shared intercourse, in non-religious terms? I would not want to be in a relationship that was solely built around sex.

                I do agree that love is expressed differently according to the relationship, but I do not see why a spousal relationship could only be possible in a heterosexual relationship.I understand how sex would be important as an expression of love between partners and an expression of their commitment, but the idea that that is only possible with certain kinds of sex seems rather contrived, since that idea depends upon specific notions of Nature or Propriety that have nothing do with the material circumstances or ramifications of the sexual act. To take on that idea would require some intricate mental gymnastics.

                • robert reilly

                  Spousal love so depends upon it that a marriage is not considered to have taken place until it is consummated. Becoming “one flesh” is not shallow. Everything else is — sexually speaking, when compared to it. It is so profound that new life springs from it, and only it.
                  “Solely built upon sex”? Coitus in marriage “consummates” the relationship; it doesn’t create it, and it does not reduce it to just sex.

                  Nature, by the way, is not a contrivance; it is what is. Same-sex marriage is the contrivance, based upon a denial of what is.

                  • Michael Paterson-Seymour

                    Consummation has never been required to constitute marriage.

                    “Nuptias non concubitus, sed consensus facit” [It is not sleeping together, but agreement that makes marriage. [ Dig. 50.17.30 Ulpianus 36 ad sab]

                    Pope Nicholas, writing to Boris I of Bulgaria in 866 may well have had this passage in mind:: ““according to the laws (leges), the consent of those whose union is arranged should be sufficient.”

                    Pope Alexander III (1159-1181) in answering a case propounded to him by the Archbishop of Salerno, declared that if consent de praesenti [“de præsenti” is, of course, an ellipsis for “de præsenti tempore” – “words in the present tense”] was expressed by such words as these Ego te accipio in meam et ego accipio te in meum [I accept you as mine and I accept you as mine] whether an oath was interponed or not it was unlawful for the woman to marry another and if she should contract a second engagement by promise even although followed by sexual intercourse she should be separated from the second and should return to the first husband. [Corpus Juris Canonici Decretales Gregory IX lib iv tit iv cap iii]

                    The same doctrine is repeated by the same pope in the famous decretal “Veniens ad nos G,” which is too long to cite, but the curious will find it at Decretales 4.1.15

                    • robert reilly

                      I was speaking of common law, and certain state laws, but, as I am sure you know, an unconsummated marriage can be annulled.
                      “Can. 1697 Only the spouses, or one of them even if the other is unwilling, have the right to petition for the favor of a dispensation from a marriage ratum et non consummatum.”

                      In some state laws, one of the conditions for establishing the existence of a common law marriage is its consummation.

                      In some state laws, the marriages from other countries are generally, I believe, considered to be “valid where consummated.”

                      Anoother secular example from UK law:
                      “Grounds on which a marriage is voidable.
                      A marriage celebrated after 31st July 1971 shall be voidable on the following grounds only, that is to say—
                      (a)that the marriage has not been consummated owing to the incapacity of either party to consummate it;
                      (b)that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it.”

                      If it is voidable, it is said not to have taken place. Therefore, the consent did not constitute it.

                      • Michael Paterson-Seymour

                        “an unconsummated marriage can be annulled.
                        “Can. 1697 Only the spouses, or one of them even if the other is unwilling, have the right to petition for the favor of a dispensation from a marriage ratum et non consummatum.”"

                        No, it can be dissolved by dispensation. Thus, the Council of Trent says, “If anyone shall say that a marriage contracted, but not consummated, is not dissolved [dirimi] by the solemn religious profession of either one of the parties to the marriage, let him be anathema.” (Sess XXIV Can vi) This presupposes a marriage to dissolve.

                        Of course, incapacity invalidates a marriage, just as a sale is void, if the subject-matter of it has perished.

                        You are confusing the perfection of a legal act (marriage) with the fulfilment of the obligations that the act creates.

                      • robert reilly

                        Right, I shouldn’t have said annulment in respect to canon law, as “dispensation” is the proper term But, again, I am not addressing canon law in the article.

                      • robert reilly

                        FYI — interesting point from a canon lawyer:
                        “In canon law, once the contracting parties exchange consent before a duly authorized minister, their union is termed “ratum” (legally recognized). All the legal effects are present after the ceremony, and the law presumes that consummation takes place.
                        In the case of two baptized parties, the effect of consummation is to render the marriage “sacramental” and to create an indissoluble bond between them.”

                  • Phil

                    I’m, sorry, but again, that seems meaningless. I agree that consummation could strengthen and validate the marriage, but I disagree that it is of primal importance because it does not have a practical effect effect on the marriage. What would really be important would be the affection between the parents and their ability to live with another, because it is that which truly allows the marriage to succeed. This is similarly the most important thing in the parent-child relationship because it allows the child to mature and be a full participant in society.

                    The idea of Nature must always be viewed with suspicion, because the property of ‘natural’ alone does not have any real consequence. There must be some bad effect to truly make it wrong: the unnatural modification of living organisms is wrong because it could cause dangerous defects; the unnatural ending of a pregnancy is wrong because it ends a human life; the unnatural consumption of feces is wrong because feces is harmful to the human body. In regards to homosexuality the claim of its unnaturalness is unqualified: what are the bad effects that constitute its wrongness?

                    Also, historically, the idea of nature has fluctuated, and has frequently been used simply to validate some other notion. In the 19th century, for example, it was claimed that women were ‘naturally’ less intelligent and inferior to men.

                    The common problem with the ideas of consummation and nature is that they only have value as ideas. That is what I mean when I call them contrived, because their specialness is totally dependent upon approaching them from a certain theoretical perspective. Outside of the theory, they do not mean anything.

                    • robert reilly

                      Once we know what something is, we can know what it is for. Its purpose is within it. It has a nature — meaning it is ordered to certain ends.
                      How does this pertain to the issue of same-sex marriage? It has to do with the procreative and unitive powers of our sexual organs. What are they for? Today, we seem to know what every other part of our body is for, except our genitals. Is there any other part of our bodies about which we claim to know so little? Is there any doubt as to what our hands are for, or our eyes, nose, or ears? Each of these appendages or organs has a functional structure that dictates its proper use. How is it that we know this about all the other parts of our bodies, but the genitals? This is a case of selective epistemological amnesia.

                      In using or treating any part of our body, the critical question is: what are the ends to which the nature of the thing directs it, and is the action outside of, or within those ends? For instance, our lungs are for breathing. Breathing oxygenates our blood through the alveoli. If anyone suggested that our lungs are for imbibing water, they would be set straight in short order and informed that water in the lungs would lead to drowning and death. If they nonetheless insisted that water is good for the lungs and applied this teaching to themselves, they would soon be asphyxiated.

                      No one has really been tempted to do this. However, people have found a great deal of pleasure in smoking cigarettes. This has been shown to be a misuse of the lungs, because the tars and nicotine from the tobacco smoke cause lung cancer. Therefore, we can say with some confidence that the end or purpose of the lungs is not pleasure from smoking. The purpose of a thing cannot be fulfilled in an action which leads to its destruction. On the basis of this, the government has taken vigorous steps to dissuade people from smoking. Laws have been passed prohibiting young people from buying cigarettes and requiring the labeling of cigarettes as injurious to health.

                      However, no one today can publicly suggest that our genitals are not made for sodomy or even, without becoming the objects of obloquy, point out the health consequences of this unclean practice. Well before HIV/AIDS arrived on the scene, the life expectancy of practicing homosexuals was substantially below that of the heterosexual male population because of the deleterious health effects of this behavior. What things are have a way of fighting back against those who deny what they are and who act in such a way as if they weren’t.

                • Ford Oxaal

                  I would agree with you that shallow and meaningless are the operative terms which well describe a relationship based on sexual acts — with one exception. This exception can be stumbled upon using even the dimmest light, that of empirical groping (science). We see through science that a child has unique DNA which is the result of a male and female becoming “one flesh”. In this context, and only in this context do sexual acts take on meaning beyond selfish pleasure, and raise the prospect of lifelong service to spouse and offspring. Marriage is what enshrines this.

                  • Phil

                    I agree that it the idea of male and female becoming “one flesh” is an apt metaphor for procreation. I also acknowledge that procreation is ultimately the purpose of sexual intercourse. However, we differ in that:

                    1) I do not think that the fact that sex exists for procreation is cause enough to condemn nonprocreative sex, in secular terms. The endorsement of non-procreative sex could be problematic because it enables promiscuity, which is an issue since it spread STDs and lowers the amount of stable families. However, this is a question to be answered on an individual level, and if the individual does not have promiscuous non-procreative sex then the material problems associated with it disappear.
                    In a secular context, I would dispute the idea that sex could be ‘selfish’ – after all, what interests would selfless sex serve? They could serve God’s interest, but God, in this instance, is not relevant. They could serve the children’s interest, in that procreative sex would bring children into the world, but the problem with that notion is that the real issue is not whether the sexual partners are having the right kind of sex, but whether they want to have children in the first place. If they want to have children, they have other means available to them.

                    2) It is certainly easier to have children through natural procreation, and children with biological parents certainly do have an easier time understanding their biology. But those two facts alone are not enough to prohibit parents from having children through other means, because it does not prevent parents and children from loving each other and it does not prevent parents from being good parents. In any case, within a few decades this will be a moot point since it will soon be possible for same-sex couples to have children who are biologically related to both of their parents, though I doubt that the Catholic Church will support that procedure.

                    The fact that heterosexual couples are able to reproduce naturally does empower their marriage. It does raise the prospect of lifelong service to spouse and offspring, and it is perhaps the simplest way to effect this.

                    But of the two factors, reproduction and lifelong service, it is the service which is more important for secular marriages, because it is the service which really influences family and social mechanics. There are other ways to achieve this ideal besides reproduction and they are open to same-sex relationships.

    • Michael Paterson-Seymour

      It is worth noting that in France, where the crimes of blasphemy, sodomy and witchcraft [le blasphème, la sodomie et la sorcellerie] were abolished without a debate on 26 September 1791, both the Court of Cassation on 13 March 2007 and the Constitutional Council on 28 January 2012 refused to recognize a constitutional right to same-sex marriage on equality grounds.

      The argument that prevailed was simple. The Civil Code contains no definition of marriage, but generations of jurists have found a functional definition in the rule that that a child conceived or born during the marriage has the husband for its father. This rule goes back at least to the Roman jurist Paulus – “is est pater quem nuptiae demonstrant” (marriage point out the father) [Dig. 2, 4, 5; 1] That establishing the legal bond between fathers and their offspring is the purpose of civil marriage was the opinion of the four most authoritative commentators on the Civil Code, Demolombe (1804–1887), Guillouard (1845-1925), Gaudemet (1908-2001) and Carbonnier (1908–2003) all writing long before the question of same-sex marriage was agitated.

      This is reflected in a resolution of the Senate in 2005, “The presumption of paternity of the husband rests on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple’s children… it is, in the words of Dean Carbonnier, the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value.”

      In short, the public purpose served by marriage is to make filiation clear, certain and incontestable. To date, no better, simpler, less intrusive means than marriage have been found for ensuring, as far as possible, that the legal, biological and social realities of paternity coincide.

      • Ford Oxaal

        So are you for or against same sex marriage and why?

        • Michael Paterson-Seymour

          If the functional definition of marriage is that the child conceived or born in marriage has the husband for father, is it not obvious that it is manifestly inapplicable to a same-sex couple?

          As for opposite-sex infertile couples, to establish a screening process would be burdensome, expensive, intrusive and litigious, especially given current advances in reproductive medicine and assisted reproduction. Laws are enacted for the general case and anomalies are the price that legislators pay for simplicity and certainty.

          Moreover, infertile opposite sex couples can “make as if they have procreated” through adoption. They present to the child, and to the wider community, the model of the natural (procreative) family, which, some experts assert, makes the establishment of the parental bond between the adopters and the adopted child possible or, at least, easier and spares adopted children the additional difficulty of having to integrate into a “non-standard” family, however loving.

          • Ford Oxaal

            So this definition of marriage is basically “tag the father” so we, society, can fit the child into a property rights context, and perhaps even impose a duty on the father in terms of providing for that child. This is also why various societies named the child in such a way as to identify the father. (Everyone knows who the mother is.) And upon this definition, same sex marriage is a contradiction of terms.

            • Michael Paterson-Seymour

              I agree.

              It is central, not only to property rights, but to the parental rights of the father to the custody and education of his children. In many jurisdictions (France, for example, and those countries that have adopted the Code Napoléon ) there are mutual, life-long obligations of financial support, in case of need between ascendants and descendants.

              • Ford Oxaal

                I think there is a case in Kansas right now where the state is pushing off on this line of thinking. Very nice — I am always interested in reading what you have to say — obviously you are well-read, right down to the metal.

    • 7may

      Of course homosexual “marriage” is illogical, immoral, absurd and insane. Anyway you look at it it makes no sense. Let’s leave aside morality for a second though. Homosexuals are “discriminated” against and want the “right” to marry. Ok. So now how can any other form of union be denied if homosexuals are given “marriage rights”? I don’t see how any other group can be denied “marriage rights” if homosexuals are given “marriage” recognition. If homosexuals are “discriminated” against any other group that would like marriage privileges has to be given it also, otherwise they will be “discriminated” against. If they aren’t all this equality bs will be just shown for what it is:special privilege given to homosexuals. Why can’t a brother marry his sister so he can give her his health insurance?And why would homosexuals be allowed to have health insurance while a brother and sister could not? A mother and son could not, a friend and his twenty other friends could not? There are so many other scenarios one could mention. And of course, let’s forget nature and let’s forget that marriage is primarily a union of two opposites for the procreation of the species. That doesn’t matter anymore in a morally relevant immorally irreverent society. Let’s just call a spade a spade and say what is happening. The world has become obsessed with homosexuality and granting homosexuals ‘rights” and no logic or reason is stopping it. Let’s hope that in a future age of reason and logic this will be looked at for what it is: Another one of the many periods where humanity has descended into the the depths of insanity.

    • http://twitter.com/pdmcguirelaw Paul McGuire

      It is also important to recognize the simple truth that The Supreme Court has never conditioned the right to marry on the ability to procreate. In Turner v Safely, 482 U.S. 78 (1987) The Supreme Court held that incarcerated prisoners—even those with no right to conjugal visits—have a fundamental right to marry because “[m]any important attributes of marriage remain…after taking into account the limitations imposed by prison life . ..[including the] expressions of emotional support and public commitment,” the “exercise of religious faith,” and the “expression of personal dedication,” which “are an important and significant aspect of the marital relationship.”

      Similarly in Zablocki v. Redhail, 434 U.S. 374 (1978) the Supreme Court struck down a Wisconsin statute that barred residents with child support obligations from marrying. The Court distinguished between the right to marry and the separate rights of “procreation, child birth, child rearing, and family relationships.”

      And the Court has held that the liberty interest in an individual’s choice of marriage is so fundamental that it prohibits filing fee barriers to divorce–barriers that would seem unobjectionable, or even desirable if the right to marry were tied to the State’s interest in
      responsible marital procreation. Boddie v. Connecticut, 401 U.S. 371, 380 (1971)

      Both Zablocki and Turner followed the ones you discuss chronologically. So considering this, it seems poor form to focus the majority of the arguments in favor of upholding Prop 8 on the belief that marriage is somehow uniquely connected to childbearing because that argument has already been made to the court and rejected. The proponent’s brief in Perry (Prop 8 case) spend a good portion of their argument laying out how the Supreme Court has already long since moved beyond the idea that marriage is exclusively about procreation.

      • robert reilly

        Yes, I get the point, but my article is not a legal one for the court. It is an exposition of the philosophical premises behind the Court’s thinking in reaching the conclusions to which you refer – showing that they are more or less inevitable if you do separate sex from procreation.
        You are right that no court has ever made the ability to marry contingent on the ability to procreate. But common law holds, and has always held, that a marriage is not valid until it is consummated. Until consummation, it is subject to annulment. In legal terms, the spouse requesting an annulment of marriage on the grounds of impotency must prove that the impotence or physical incapacity in the partner is permanent and incurable, and was so at the time of the marriage. Any attempted union between two males or two females easily meets these criteria for annulment. (Infertility, on the other hand, is not a ground for annulment.)
        The ability to marry is not contingent on fertility, but it is contingent on potency, on consummation – on becoming “one flesh”. On that requirement alone, the case for same-sex marriage should fail.

        • mally el

          Exactly Robert! Protecting this maariage from political interference was the reason behind the Court’s decision in the 1960s. They believed that marriage was alll about gender – male and female – and not about race, class or anything elase.

      • Michael Paterson-Seymour

        It is a fallacy is to suppose that the purpose of civil marriage is procreation, which is manifestly false. The law makes special provision for marriage in extremis (CC Art 169) and even for posthumous marriage (CC Art 171). This would be unintelligible, if procreation were the primary purpose of marriage and a posthumous marriage confers no rights on the surviving spouse. It does however confer incontestable inheritance rights on children of the couple previously born, both to the defunct and his or her ascendants; in other words, it establishes filiation, the juridical bond between father and child

        The law assumes the fact of procreation and uses marriage to regulate its consequences and, in particular, to ensure, as far as possible, that the legal, social and biological aspects of paternity coincide. This includes legitimation by subsequent marriage

        • http://twitter.com/pdmcguirelaw Paul McGuire

          Well the primary argument made by the supporters of Prop 8 at the Supreme Court was that it is rational to differentiate between same sex and opposite sex couples for marriage because opposite sex couples have the ability to naturally procreate. Supporting inheritance rights of children, however, is important for both same sex and opposite sex couples because some same sex couples do raise children either from a previous marriage, through adoption, or through a surrogate. Those children, once raised by a same sex couple should have the same protections from marriage as children raised by opposite sex couples.

          • Michael Paterson-Seymour

            But the filiation of a child from a previous marriage is already determined by that marriage. In the case of adoption, filiation is constituted by the decree.

            How can the filiation of a child possibly be affected by the marriage of a couple of the same sex?

    • cestusdei

      We need to prepare ourselves. The homosexuals will not tolerate any deviation from their agenda. They will swiftly impose their “right” on everyone, especially the children. A new dark age is dawning.

      • Scott Waddell

        I agree. Obviously the Christian should fight and play to win, but we have to prepare for the worst. After all the legal blocks to same-sex “marriage” have been swept away (which seem likely in Reilly’s analysis), then comes the social pressure. I expect most employers to start adopting “diversity” mission statements. We might be able to survive with prudent silence for a while, but as you say, evil “will not tolerate any deviation”. Meaning there will be demands for full-throated public approval and we will end up with something similar to England’s Test Acts in the 1600′s as a condition for employment or holding public office higher than Town Dog-Catcher.

        • Bono95

          Prudent silence is exactly what St. Thomas More used on “The King’s Great Matter”. Because silence implied agreement according to the English legal system, it was a violation of justice for Henry VIII to have his greatest friend and advisor arrested and imprisoned for 15 months. More remained quiet on the matter until it was clear that those “trying” him were all either hell-bent on getting him executed or were coerced and threatened by those who were bent on it. Only then did he finally discharge his conscience. More had even avoided discussing it with people he knew who had or hadn’t taken the oath of Supremacy, he simply remained steadfast in his position and prayed privately for both those who did and those who didn’t swear. May he do likewise for us all now and inspire us with his example.

          • Scott Waddell

            Good point. I recall an early but instructive case in the Brooks Brothers’ incident where a young man was fired by his manager who got one of those same-sex “marriages”. The man tried to keep his mouth shut and do his job, but his manager badgered him until he caved and revealed that he didn’t regard it a true marriage. Now, the usual suspects played this down as just a kink or anomaly, and that, “He’s young, he’ll find another job.” (conveniently forgetting that every future employer asks if you have ever been terminated from a job and if so, what were the circumstances.) I think this is the model the believer in true marriage has to prepare for should the societal juggernaut to crush all opposition continue.

      • Theorist

        I would kill for the old dark age.

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    • dk

      As stated by Andrew Sullivan–the earliest and most relentless advocate of homosexual marriage–”We are all sodomites now.”

      • Bono95

        Every human being, except the Virgin Mary, is a sinner of some sort, but that doesn’t mean we should do nothing about it or use that fact as an excuse to behave badly. We are all called to be as holy as we can be and to avoid sins and temptations, whether we’re sodomites, heterosexual adulterers, thieves, murderers, perjurers, satanists, liars, cheaters, terrorists, gluttons, sloths, egotists, etc ad nauseam. And we’re not alone in trying to achieve holiness and through that Heaven. #1 we have God, who wants us all to be in Heaven with him and will help us to get there if we only cooperate with his will, and #2 we have Mary, the angels, the saints, and our brothers, sisters, and neighbors on earth to pray for us and give us whatever other help we need.

    • CarolinaSistah

      I don’t know of a time I’ve enjoyed reading posts as I have these. Props to all of you for dialogue extraordinaire in its respectfulness and intellect.

      • Bono95

        Thank You :-)