Why Same-Sex Couples Possess No Conjugal Rights

Often in discussions on whether the term “marriage” should be reserved for relationships between persons of opposite sex, advocates for same-sex “marriage” claim that there is no distinguishing characteristic in male/female commitments that would make only those commitments truly marital. The obvious response that children come only from opposite sex relationships is quickly dismissed since few are willing to deny that elderly or otherwise infertile men and women can truly marry as much as the young and fertile. Since everyone accepts the infertile male/female couple, only bigotry or animus can be at the root of the refusal to recognize as marital the commitments between persons of the same sex.

Indeed, it is argued, two men or two women are just as capable of fulfilling the commitment, expressed in one traditional formulation, “to have and to hold, from this day forward, for better or for worse, for richer, for poorer, in sickness and in health, to love and to cherish, until death do us part.” Is there anything implied in that commitment that only opposite sex couples can accomplish?

If there is something that only opposite sex couples can do, and which could be a necessary condition for a valid marriage, recognizing that reality could go a long way in responding to the charges of irrationality and bigotry. I believe there is an identifiable, necessary condition for any valid marriage that can be stated in a relatively simple manner, and which provides a rational principle that can be used to respond to various objections from proponents of same-sex “marriage.”

Only persons of the opposite sex are capable of giving and receiving moral rights, in relation to each other, for actions that by their nature are ordered to the procreation of children. Natural, canon, and civil law traditions have long recognized such rights as “conjugal” or “marital” rights. While some might be averse to the unromantic and legal sounds of “rights” in the intimate context of marriage, it may be that a recovery of the concept and language of “conjugal rights” is precisely what is needed in order for defenders of marriage to present an intelligible and consistent case for the impossibility of same-sex “marriage.” I want to suggest that the exchange of conjugal rights is so necessary for any true marriage, that without an understanding of those rights it is not possible to give a consistent account of either the distinctive relationship of marriage itself or the history of marriage across cultures and legal systems.

How should we understand and explain conjugal rights? As described, conjugal rights are first of all moral rights. The qualifier “moral” is very important here, and it should be understood as significant for marriage in several ways. Marriage is moral because it is concerned with human action. Specifically, it takes human action to establish a marriage, namely deliberate and voluntary consent, and the object of consent is concerned with (rights to) human actions naturally ordered to the procreation of children. Through their manifested marital consent a man and a woman mutually exchange rights for such actions. In doing so, they establish themselves as spouses relative to each other. This spousal relation now allows the couple and the rest of society to speak of the couple’s procreative actions as something other than fornication–an important moral distinction, at least historically. Similarly, the same rights are morally relevant in case they are violated. Hence, intercourse outside of marriage is now adultery. So the spouses themselves are morally obligated to fidelity, and their rights demand a moral respect by everyone else.

There is another important truth concerning the moral status of marital rights. As moral and natural, these rights are not established, created, or conferred by the state. The state may have good reasons to recognize and support marital rights in various ways. It may even have good reasons to place limits on which contracts it will legally recognize as involving marital rights (as when it places conditions of age as necessary for a lawful marriage). Moreover, the state may also have good reasons to intervene in ways that somehow interfere with marital rights, as when a judge places a restraining order on a violent spouse. But in principle the rights themselves can be established independently of state support, and people have been exchanging marital rights prior to the existence of any modern state.

The moral rights that distinguish the marital relationship from all other relationships have a distinct object, namely human actions which by their nature are ordered to the procreation of children. This is an important and often misunderstood object. These same actions can be described (as they are in the canonical tradition) as actions which are per se apt for the procreation of offspring, or actions naturally procreative in kind. Such an act is the kind that in common estimation is recognizable as the type of natural human activity a couple engages in if they are “trying to have a baby.” While capable of great precision, Saint Thomas Aquinas sometimes described this simply as “the natural union of male and female.” This union is the kind of act that if conditions are favorable will naturally lead to pregnancy. In this way it makes sense to speak of the conjugal act being per se apt for the procreation of children.

While there is no need to elaborate on the details of such an action, it is necessary to make some clarifications. Conjugal rights are not rights to a child. Producing a child is not within the direct power of the couple. What is within their direct power, supposedly, is natural intercourse. This point is crucial for making sense of how infertility is not an obstacle to matrimony. An infertile man or woman may be perfectly capable of exchanging moral rights in relation to natural intercourse even if that intercourse will never in fact result in the passive conception of a child. Does this mean that such intercourse is not per se apt for the procreation of children? No, it need not mean anything more than conditions are not (or perhaps never will be) sufficiently favorable for the couple’s conjugal act to terminate in pregnancy.

But it remains true that any conjugal act as such is the kind of action that has a natural ordination towards procreation. Hence, we say that infertility is a defect in relation to natural intercourse, or that contraception is against the natural ordination of such intercourse. If a natural ordination towards procreation were not proper to the conjugal act, infertility would be an absurd concept, and contraception would always be pointless. Blindness is a defect only in relation to the organ naturally ordered to sight.

A corollary of understanding the object of conjugal rights as including the human act of natural intercourse is that one must have the capacity to engage in natural intercourse in order to be able to exchange conjugal rights. One cannot give a right to the impossible. Hence, if prior to contracting marriage, a person is certainly and irreparably incapable of intercourse, then that person is incapable of exchanging marital rights, and incapable of entering marriage. Such a certain and irreparable incapacity is the kind of impotency that natural, canon, and civil law traditions have recognized as special grounds for considering or declaring a marriage contract null or void. If conjugal rights in relation to natural intercourse were not essential to the marital relationship, then many centuries of legal thought and practice concerning the impediment of impotency would be unintelligible. Even the concept of consummation itself, recognized in the same legal traditions, depends upon a presumption of potency.

Here it is necessary to make an important distinction regarding impotency. Traditionally, impotency is called absolute if one would be incapable of natural intercourse with anyone. It is termed relative if one would be incapable of natural intercourse with a certain person. Now in a case of doubt, concerning either absolute or relative impotence, the moral and legal presumption is in favor of marriage capacity. This presumption is most reasonable, as it is based upon the common experience of human beings that most men and women, however diverse, are capable of consummating their marriages. Hence, until certain evidence shows otherwise, any adult man and woman ordinarily would be presumed potent in relation to each other and therefore capable of entering marriage in that respect.

The critical point for the marriage debate is that every same-sex pair, without exception, is certainly and irreparably incapable of natural intercourse, and therefore certainly and irreparably incapable of exchanging moral rights in relation to each other for actions which by their nature are ordered to the procreation of children. Another way of approaching this truth is to say that every woman is in a condition analogous to relative impotence regarding every other woman, and every man is in a condition analogous to relative impotence regarding every other man. The same man may be perfectly potent in relation to a woman, and therefore capable of marriage in principle, yet with every other man there is something like the impediment of relative impotency. I say “something like” because the categories of potency and impotency are conceptually and traditionally proper in reference to male-female relationships. Nevertheless, speaking of a condition analogous to relative impotency between all persons of the same sex seems very suitable not only for illustrating why same-sex “marriage” is impossible but also for responding to charges of bigotry or animus for those who recognize that impossibility.

To that specific objection and to others I will devote attention in a forthcoming essay in Crisis.

Editor’s note: The image above titled “Signing the Register” was painted by Edmund Blair Leighton (1853-1922).

Joseph Arias

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Joseph Arias is Assistant Professor of Theology and Dean of Students at the Graduate School of Christendom College in Alexandria, VA, where he serves as faculty advisor for students concentrating in moral theology. He is also an adjunct professor for the Department of Theology at Christendom College in Front Royal, VA.

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