A Legal Argument Against Homosexual Marriage

By JP Nunez

15 October AD 2019

health, wealth, reputation, marriage

For the past several decades, the Western world has been increasingly distancing
itself from its Christian roots. One of the clearest examples of this is its
abandonment of traditional marriage by the legal recognition of homosexual unions
as marriages. Until very recently, homosexual marriage was basically unthinkable in
our culture. Yet, the dominant view today is that homosexual unions are no
different from heterosexual ones.

In response, opponents of this trend maintain that marriage should be between a man
and a woman, but unfortunately, most of their arguments are weak and ineffective.
For example, some contend that our marriage laws should be explicitly based on
God’s will as revealed in Scripture, but that argument has little (if any) force in
a society that no longer cares about God or the Bible. Similarly, many people have
a vague idea that homosexual acts are in some sense unnatural, but they are unable
to articulate this belief in a clear or convincing way. Because of these weak
arguments, proponents of gay marriage often believe that they are obviously right
and that no intelligent, unbiased observer could possibly disagree with them.

However, that is not at all the case. There are other, better arguments against the
legal recognition of homosexual unions as marriages, and if we want to have any
chance of turning the cultural tide on this issue, we need to know them. We have to
be able to articulate and defend our position in a clear and convincing way without
appealing to vague intuitions or to sources that most people today would simply
dismiss as irrelevant. And that is my purpose in writing this article. I want to
summarize what I believe is the best philosophical case against the legal
recognition of homosexual unions as marriages, one that can stand its ground in the
marketplace of ideas and truly challenge the assumption that there are no
intelligent reasons to oppose the prevailing mindset, which favors homosexual
marriage.

The best way to tackle this issue is to take a two-pronged approach. First, we
have to look at the nature of marriage itself, and then we have to look at why the
government cares about it. When we do that, we’ll see two things: 1) Marriage by
nature requires one man and one woman; two people of the same sex simply can’t form
the kind of union that we call “marriage.” 2) Legal recognition of homosexual
unions as marriages is unrelated to and actually defeats the purpose of recognizing
and privileging marriage in the first place. While each of these points is
compelling on its own, when we put them together, we get a very strong argument
that nobody who approaches this issue with an open mind can ignore.

Biological Union
Let’s begin with the first part: what two men or two women do when they form
romantic relationships is not the same thing that a man and a woman do when they
get married. The key difference concerns the role of sex within marriage. Marriage
is a comprehensive union that unites two people on every level (physical, mental,
emotional, etc.), and sex is the physical level of that union. When a man and a
woman have sex, they unite physically; more specifically, they unite biologically.

That may sound odd. To understand it better, think of a biological act that our
bodies perform. It can be respiration, digestion, movement, or any other biological
act you may propose. Whatever you think of, it will almost certainly have these two
features: 1) It involves various organs working together for the good of the whole
organism, and 2) It takes only one person to perform it.
The first feature is easy enough to understand. What unites our organs as our
organs rather than just random body parts that simply happen to be connected to one
another is the fact that they work together for a greater good, the good of the
whole organism. For example, when you digest your food, everything from your teeth
to your intestines works together to break it down so your entire body can use its
nutrients. The second feature, however, may seem a bit trivial. Of course
biological acts are performed by only one person. That probably seems so obvious
that it should go without saying, but it needs to be said because there is actually
a key exception: reproduction. Reproduction can happen only when a man and a woman
unite and make their reproductive organs work together for a single goal, the goal
of producing a child who can carry on the genes of both parents.

This reproductive function is what unites a man and a woman when they have sex. By
coming together to perform this act, they become a single subject of a single
biological act. They don’t literally become one organism, but their bodies work
together for a single goal, just like the organs of an organism do for any other
biological act. Consequently, when a couple has sex, they unite in the closest way
possible on the bodily level.

Personal Union
This may not seem very romantic, but we have to remember that we’re not just
spirits that inhabit bodies; we are our bodies as well. That is why, for instance,
if someone hits your body, they are truly hitting you and not just an external
instrument that you use or inhabit. As a result, when a couple unites biologically,
it is not just two impersonal bodies that become one. No, since it involves two
bodily persons, it is the persons who unite, joining the physical parts of
themselves in the most intimate way possible.

And that is the role sex plays in marriage. As I said before, marriage is a
complete union of two people on every level, and sex, as a complete gift of one’s
body to another, is the physical element of that union. It is the physical
embodiment of the spouses’ love and commitment to each other.

The Big Objection

However, there is one big objection that just about everybody makes to this view of
sex when they first encounter it: if sex is supposed to be the act of reproduction,
how can it have any significance for infertile couples? To answer this objection,
we have to understand that the nature of a biological act does not depend on its
success.

For example, if I eat some food and then throw it up a few hours later, I have not
completed the biological act of digestion, but that does not mean I have not
performed it at all. No, the act of digestion is a process. It begins in the mouth
and ends in the intestines, and it takes time for the food to be fully broken down.
When the process is cut short by something like throwing up, that simply means that
it hasn’t been completed, not that it never occurred at all. If you throw up, your
body did in fact perform a biological act. It began to digest the food, even though
it was not able to finish.

And sex is like that. As long as an infertile couple does the same thing that a
fertile couple does when they have sex, they are still performing a biological act.
They are performing the first part of the whole process, and if the process cannot
be completed, that does not mean that what they did was not a biological act. It
was, but it just didn’t reach its goal. As a result, any heterosexual couple,
fertile or infertile, can unite physically and embody their marital commitment to
each other when they have sex.

The Real Problem

Once we understand this, it is pretty easy to see that homosexual couples cannot
unite in this way. They cannot perform the biological act of reproduction, so they
cannot unite physically the way heterosexual couples can. Consequently, they’re
unable to form the comprehensive, multi-level union that we call “marriage.” Sure,
they may be able to unite on all the other levels, but for a couple to be married,
they need to unite on all of these levels. Not a single one can be missing; if one
is, it is simply not marriage.

As a result, the problem is not that
married; rather, it is that they are
the same thing that straight couples
should not recognize their unions as
marriage something that is not truly
thing.
gay couples should not be allowed to get
unable to get married. They simply cannot do
do when they get married, so the government
marriages. To do that would be to recognize as
marriage, and that is obviously not a good

Why the Government Cares

Next, we have the second reason why we should not legally recognize homosexual
unions as marriages: it is unrelated to and in fact defeats the purpose of
recognizing and privileging the institution of marriage in the first place. To
understand this point, we have to reflect on the reason why the government should
care about marriage at all. Some people think that it has to do with the happiness
of the spouses, but that cannot be right. The government doesn’t recognize or
regulate any other relationships that impact our happiness (like those with our
friends and relatives), so why should it make an exception for marriage?

Instead, the government should care about marriage because it gives children the
best possible chance of growing up to become good, productive citizens, and that is
clearly something in which the government has great interest. Sociological studies
have shown that on the whole, children tend to do best if they grow up with both of
their biological parents in a stable marriage. Children with that kind of home life
usually have lower rates of delinquency and of subjection to sexual and physical
abuse, and they are typically healthier physically, emotionally, and mentally.1
Now, by binding mothers and fathers together and making it harder for them to
separate, marriage helps keep families together, and that in turn helps children
grow up to be healthier and better citizens.

Moreover, by keeping families together, marriage laws also help to create a good
marriage culture. Whether we like it or not, laws influence public opinion. Once
something becomes legal, more and more people will begin to do it, and after a
while, a whole new generation grows up with it as a normal part of their lives. As
a result, they accept it without much question. Think about racial integration, for
example. Segregation laws were struck down only a few generations ago, but already
the vast majority of Americans don’t think twice when they see people of different
races using the same bathrooms or sitting next to each other on a bus. Similarly,
by keeping families together, good marriage laws also make intact families a normal
part of people’s lives. Marriage becomes the natural aspiration of young boys and
girls. They want to grow up, get married, and have kids, all of which is conducive
to raising good citizens.

Society’s Best Interests

Once we understand all that, we can see that recognizing and privileging hetero-
sexual marriage is very much in society’s best interests. It is the best place for
children to grow up to be good citizens, so it should have a special place in our
society.

However, the same cannot be said about homosexual unions. As a couple, the spouses
cannot be a child’s biological parents. Typically, they cannot provide the best
possible environment for children to grow up. Consequently, legally recognizing
these unions as marriages would not serve the purpose of legal recognition of
marriage in general.

Counterproductive
But that is not all; we can go even further. Recognizing homosexual unions as
marriages is also counterproductive because it defeats the purpose of giving
marriage a privileged legal status. Heterosexual marriage is characterized by the
biological act of reproduction, so it has an intrinsic link to children that
homosexual relationships cannot have. Granted, homosexual couples can adopt, but so
can two sisters living together, yet nobody would say that a sibling relationship
has any intrinsic relation to children. Such relationships aren’t incompatible with
raising kids, but that is very different from being intrinsically related to it.
There is nothing about sibling relationships or homosexual unions that has any
inherent link to children.

Because of this, recognizing homosexual unions as marriages severs the link between
marriage and children. It enshrines in our laws an understanding of marriage that
has nothing to do with children. If we say that homosexual couples can get married
just like heterosexual couples, then we’re saying that they can form the exact same
kind of relationships. Because homosexual marriages are not inherently related to
having and raising children, by legalizing them, we are saying marriage in itself
cannot have any intrinsic link to children. As a result, we will be severing the
link between marriage and children in our culture’s understanding, and people will
become less inclined to consider marriage the proper place for bearing and raising
kids. This will then naturally lead to people being less reluctant to have kids out
of wedlock, which in turn will cause those children to be raised in less than
optimal conditions.

The Path is Clear

From all this, we can see that contrary to what many people believe, there are in
fact good reasons to maintain marriage as intrinsically heterosexual in our laws
and in our culture. Homosexual and heterosexual unions are simply not the same kind
of relationships. Moreover, the whole reason why the government cares about
marriage (the begetting and rearing of children) depends on its being between a man
and a woman, not two men or two women. Recognizing homosexual unions as marriages
actually defeats the purpose of legally recognizing marriage at all. The right path
is clear: homosexual unions should not be legally recognized as marriages.

Endnotes
1) Linda J. Waite and Maggie Gallagher, The Case for Marriage (New York: Broadway
Books, 2000), 130-35.