In a prior essay in Crisis I offered an explanation concerning how the exchange of conjugal rights, understood in natural, canon, and civil law traditions as mutual moral rights for actions naturally ordered to the procreation of children, can be recognized as a necessary condition for a valid marriage. Hence, if a person is certainly and irreparably incapable of engaging in natural intercourse with another, then that person would be incapable of exchanging conjugal rights with the other (as one cannot give a right to the impossible), and consequently would be incapable of contracting a marriage between them. Accordingly, the same legal traditions mentioned above have recognized certain and irreparable impotence as grounds for declaring a marriage null or void. By analogy, I argued that every woman may be considered in a condition like impotence relative to every other woman, and every man may be considered in the same condition relative to every other man. Presently, I will raise and respond to various objections that might be brought against the position I have offered.
Objection: You are trying, ad hoc, to come up with a principle that excludes gay people from marrying each other. This is just bigotry.
Reply: The principle makes no reference to “gay people” or to “gay marriage,” but it has much to do with sex. Virtually everyone on either side of the discussion thinks that marriage has something to do with sexual rights of some kind, even if the term “rights” is not used explicitly. There is an expectation that those who marry at least may (are now within their rights to) engage in intercourse without any stigma of fornication, and there is an even stronger expectation that the spouses are to respect the just claim (right) the other has concerning fidelity. Hence, the issue of conjugal rights is important in some way for everybody. But it is also important to clarify and to understand regardless of the question of same-sex “marriage.” In both civil and canon law, impotency had been recognized as an impediment to marriage for centuries before any state even considered the possibility of recognizing “marriage” between persons of the same sex.
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Accordingly, perhaps the simplest and most effective way to respond to the charge of bigotry is to point out that the capacity of the couple to engage in natural intercourse in relation to each other (i.e. the absence of the impediment of impotence) is a requirement for a valid marriage regardless of the sex, sexual attraction, or professed sexual orientation/identity of either person. The certain and irreparable incapacity to engage in, and to exchange rights concerning, an action which by its nature is ordered to the procreation of children is equally an impediment to marriage for the opposite-sex couple as for the same-sex couple. This is one true sense of marriage equality that can be consistently maintained in light of natural law, canon law, and (traditional) civil law.
Objection: Most people do not think in terms of marital rights, especially when they are marrying each other. Most people marry for love or companionship, no one (except a canon lawyer) thinks about exchanging rights over the bodies of each other for actions per se ordered to the procreation of children!
Reply: This objection confuses the motives people have for marrying with what is essential for marital consent. The issue is not about what people explicitly think when they are exchanging marital consent. Rather it is about a condition that is necessary for that consent to be marital. Even if most people who marry do not think in terms of “conjugal rights” or “actions that are per se ordered to the procreation of offspring,” they typically do think that by entering into marriage their acts of natural intercourse are different from fornication and that they now have the right to expect sexual fidelity from the other. If their thinking is true, then marital rights have been exchanged and the couple had to intend that exchange at least implicitly. They may have been motivated to make that exchange for many and varied reasons, some good and some bad, but what they did (exchange conjugal rights) may be distinguishable from why they did it.
Objection: Law “contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married.” (Chief Justice Marshall, Massachusetts Supreme Court, Goodridge vs. Department of Public Health)
Reply: Everything within this objection can be accounted for by distinguishing between rights to conjugal intercourse, which are not concerned with the question of fertility per se, and the use of those rights. Fertility is not a condition of marriage, nor is it grounds for divorce, because fertility is not essential to the object of marital rights.
Marital rights include within their object natural intercourse, the kind of act that has always counted as consummating a marriage. Marital rights do not include rights to a child or rights to the other being fertile, neither of which can be presumed to be in the direct power of either spouse to effect. Ordinarily, what can be presumed to exist between a man and a woman at the time of their marriage is the capacity to engage in the kind of human action that per se has a natural ordination toward procreation. Fertility or infertility is determined in relation to that kind of action. In fact, clinical diagnoses of infertility are made after six months to a year of regular engagement in natural intercourse. Hence, most (non-fornicating) couples will never know the status of their fertility until well into their married life. But determining that status (which, it is important to keep in mind, often changes) ordinarily does depend upon their ability to engage in natural intercourse, which is consistent with that ability’s priority for marriage.
The fact that people who have never consummated their marriage, and never plan to, may be and stay married is perfectly explained precisely in light of conjugal rights. One may have a right and not use it. While marital rights are not reducible to mere property rights, an illustration from the latter can be useful. One might acquire rights over a house yet decide not to occupy it either temporarily or indefinitely. But even before or if he never occupies, the owner could claim a violation of his rights if an uninvited person took up residence. The basic comparison with marital rights, the freedom to use them or not, and their potential violation is obvious, but a difference with mere property rights should be noted. As moral rights, husband and wife do owe something to each other in their conjugal rights. On the negative side they owe to each other not to commit adultery. On the positive side they owe to each other to grant the conjugal act when it is reasonably sought. Hence, the object of the conjugal right considered here is a human act, that is a deliberate and voluntary action, not a mere piece of property.
Objection: So instead of a test for fertility, there should be a test for sexual potency.
Reply: Even if fertility were a necessary condition for a valid marriage, which it is not, it still would not follow that a pre-nuptial test should be administered by anyone. In the same way, even though the capacity to consummate the marriage (not the actual consummating of the marriage) is a necessary condition for a valid marriage, it does not follow that a pre-nuptial test should be administered in any way. Personal privacy concerns make such an idea extremely repugnant both morally and politically. That alone is sufficient to answer the objection. Furthermore, such a test (whatever form it might take) would be completely unnecessary and even counterproductive in comparison to the ordinary presumption in favor of marriage capacity for adult men and women. To reverse this presumption would be analogous to a reversal of the presumption of innocence in criminal proceedings. Just as more harm overall would be done to individuals and to justice to reverse the latter presumption in law, so we could expect proportionate harms to result from reversing the presumption of consummative capacity by requiring men and women to prove it before entering into marriage.
However, just as the presumption of innocence is overturned in the face of evidence convicting beyond a reasonable doubt, so the presumption of marital capacity can be overturned in the face of evidence proving beyond a reasonable doubt that irreparable impotence existed prior to contracting marriage. Such evidence is in fact what must be presented in certain cases where a declaration of nullity is sought on the grounds of impotence. Marriage enjoys the favor of law on this point, meaning that the marriage is presumed valid until proven otherwise. This is reasonable given that most men and women are able to consummate their marriages. Hence, it is the exception that must be proven. On the other hand, there can be no reasonable presumption of consummative capacity between persons of the same sex, as every same-sex pairing is already publicly and certainly known to be incapable of natural intercourse.
Objection: But persons of the same sex can have children, through reproductive technologies and by adoption, just as infertile couples, and even impotent couples.
Reply: Adopting children, technologically “producing” children, or even conceiving children by natural procreation neither presupposes nor establishes a spousal relation. People frequently accomplish these actions outside of marriage. Furthermore, having the ability to do any of those actions is not a necessary condition for entering marriage. As mentioned before, marital rights are not exchanged in reference to children per se, but in reference to the human act of natural intercourse. Again, this is important because married couples as such ordinarily have no immediate control over the production of a child. The rights a man and a woman give and receive that establish them as spouses relative to each other must have as their object some act they are capable of accomplishing, over which they have control.
Even if in a particular case the highly uncertain modern reproductive technologies were able to guarantee success, that would have no bearing on what is naturally and essentially distinctive of the marital relationship. While the natural purposes of marriage are not necessarily opposed to all forms of technical assistance, the rights that distinguish marriage from other relationships should be available to (should be within the ordinary power of) the average man and woman not only in a particular time and place, but throughout history and in varied circumstances of cultures, scientific or technological advancements, social or economic classes, political or legal systems, etc. Otherwise, we are not dealing with the same marriage reality that can be recognized as the common heritage of mankind and as more than a contemporary legal construct.
Objection: This position is just too cruel. It denies marriage to people who love each other based on technicalities.
Reply: Everyone who thinks that “marriage” refers to a kind of human relationship involving the voluntary consent of those entering it must also think that there are conditions that must be met in order to establish that relationship. (Those entering the spousal relationship must consent to something. The Goodridge re-definition of marriage as “the voluntary union of two persons as spouses, to the exclusion of all others” is tautological.) Whatever conditions one recognizes, some relationships, even loving ones, will be excluded. I have focused on one condition (the exchange of conjugal rights) that can account for what distinguishes the marital relationship from all other relationships. I have shown how that same condition is also possible only among opposite sex couples (but not all opposite sex couples), and how it can be defended as a necessary condition for marriage in the face of objections. Offering that defense has involved nothing cruel or irrational.
What is ultimately at stake in the current marriage debate is the procreative order itself. Recent advocacy for public approval of same-sex “marriage” may be more of a symptom of our widespread inability to recognize the procreative order than a foundational cause of that inability. After decades of cultural and legal normalizing of contraception (obscuring the procreative order in its beginning, regarding its proper act), abortion (obscuring the procreative order regarding its proper effect), fornication and easy divorce (obscuring the procreative order regarding its proper context), it is no wonder that we find it so difficult adequately to appreciate that order. As citizens, politicians, and even justices, we would do well to remember that this is an order that no human person or society invented, but it is that upon which every individual and nation depends for its existence and well-being. Consequently, we have no choice regarding authority over the procreative order of things. Our choices concern only whether we will recognize and protect it in law, whether we will fail to do so, or whether we will think that it is irrational to care.
Editor’s note: The image above titled “The Village Wedding” was painted by Thomas Falcon Marshall in 1845.