Arguments against same-sex marriage tend to fall into two categories. Some are theological in nature, appealing either to Scripture or to the concept of natural law. These approaches ultimately reject same-sex unions on the grounds that marriage is a divinely ordained institution reserved for one man and one woman. Such arguments have limited force in the public square, however, as they controversially assume that theological views may properly serve as a foundation for civil laws. Non-theological arguments are typically consequentialist in nature, insisting that legalization of same-sex marriage would have pernicious social ramifications. The difficulty with such arguments is that they lean heavily on predictive claims for which available supporting data is contentious.
In addition to critiquing the above arguments, proponents of same-sex marriage often defend their position by appealing to the concept of justice. To refuse homosexuals legal sanction of their unions is simply unfair, they argue. If heterosexual couples are permitted to marry, then it is only just that homosexuals should enjoy this same freedom. Critics of same-sex marriage have had little to say in response to this line of reasoning, perhaps creating the impression in some minds that this aspect of their case actually succeeds, as it is sometimes said, qui tacet consentire videtur (silence is understood to be consent). Here I would like to challenge this impression – not with a mere rebuttal of the pro-same-sex marriage argument from justice, but by arguing that same-sex marriage is essentially unjust. This will also provide a much needed alternative to theological and consequentialist arguments against same-sex marriage.
The Argument from Justice
A few preliminary remarks are in order. First, I will assume a general and widely recognized conception of justice as giving to each its due. There are, of course, many social, economic, and political contexts in which the concept of justice is applied, and in light of each, context-specific conceptions have been distinguished. Thus, we may refer to distributive justice, commercial justice, retributive justice, and procedural justice, to name a few. But what all of these ideas has in common is the concept of fairness or giving to each its due. My argument below pivots on this fundamental, long-standing intuition about the nature of justice.
Second, I will assume that a society's laws, rights, and privileges ought to reflect its shared values. In particular, those goods that are crucial to the flourishing of a society deserve greater respect and civil sanction than those which are not. And those social institutions which are essential to the very survival of human civilization warrant the greatest respect and civil sanction of all.
Lastly, I take it for granted that the most, or at least among the most, valuable goods in any civil society are the human beings that comprise that society.Footnote 1 Furthermore, by extension, the means by which humans come into the world also deserves special respect and civil sanction. That is, if the existence of human civilization is, to put it mildly, especially valuable, then the heterosexual union which alone can bring new humans into this world warrants significant honorific acknowledgment by any civil society. And the fact that every known civilization in human history has done just this is testament to the fact that this is a universally shared intuition.
As I have laid out these basic assumptions, I trust the gist of my reasoning is now apparent. Here is a formal summation of the argument:
1. Heterosexual union is the indispensable means by which humans come into existence and therefore has special social value (indeed, the greatest possible social value because it is the first precondition for the existence of society as well as its continuation).
2. What has special value to human society deserves special social recognition and sanction.
3. Civil ordinances which recognize same-sex marriage as comparable to heterosexual marriage constitute a rejection of the special value of heterosexual unions.
4. To deny the special social value of what has special social value is unjust.
5. Therefore, same-sex marriage is unjust.
Now for some disclaimers and clarifications. First, notice that the argument does not assume that the only purpose of marriage is procreation. Other traditionally recognized functions of sex, including relational unity, character development, and pleasure, may be heartily affirmed. For the purposes of this argument, all of these benefits could likewise be granted of homosexual relations. Moreover, I suppose that one could concede that procreation is not even a purpose of heterosexual relations. In fact, my argument does not require any notion of sexual or marital teleology. The crucial assumption regarding sex is straightforwardly factual, namely that heterosexual relations are the sole means by which humans come into the world and thus provide a unique and profound social good that deserves significant public recognition.
Also, my argument does not imply a denial of any civil rights of homosexuals. What it implies is that homosexual unions do not deserve the same level of civil sanction as heterosexual unions, such as the latter enjoys through marital contracts. This does not deny anyone's civil rights because marriage is not a right but a privilege. Civil rights include, for example, basic freedoms of speech, assembly, and legal representation when one is accused of a crime. They apply to all citizens regardless of their race, age, religion, or sexual orientation. By contrast, civil privileges, such as the freedom to operate an automobile, practice law, or join the armed forces, are contingent upon such factors as age, sensory functionality, and demonstration of certain physical and/or intellectual aptitudes. Marital contracts, like all such privileges, must be applied for and certain criteria must be satisfied in order for applicants' requests to be granted, including a minimum age requirement and applicants' demonstration that they are not closely related.Footnote 2
Thirdly, I want to highlight the fact that the argument in no way suggests that the institution of same-sex marriage would constitute a denial of all value of heterosexual unions. I do not consider this to be the case, nor does the argument have this implication. If same-sex marriage becomes a widely accepted practice or even as common as traditional marriage, there is no reason to believe that the latter would lose all social sanction. But this fact is consistent with my basic claim, which is that same-sex marriage undermines the unique social sanction which heterosexual unions deserve, precisely because what they contribute to society is uniquely valuable, viz. the production of new human beings. So the problem is not that the institution of same-sex marriage implies that there is no value in heterosexual unions. Rather, it is their special value that is denied, and this is sufficient to constitute a serious breach of social justice.
Finally, my argument in no way implies, nor should it be taken even to suggest, that proponents of same-sex marriage intend to reject or undermine the special value of heterosexual union. On the contrary, I suspect this thought never enters the minds of most same-sex marriage proponents, whose aim is simply that homosexual couples enjoy public affirmation of their mutual commitment, particularly in the form of such benefits as immigration, tax breaks, bereavement leave, social security survivor benefits, veteran's discounts, and hospital and prison visitation privileges.Footnote 3 But however strongly homosexuals and same-sex marriage advocates might acknowledge the unique procreative value of heterosexual unions, this does change the fact that the institution of same-sex marriage, insofar as it is a public recognition of such unions on the same level as heterosexual unions, is in itself a de facto denial of the special value of the latter.
Perhaps an analogy will help here. The Purple Heart is awarded to American soldiers who have been wounded or killed in battle while serving our country. Suppose a proposal was made to extend this award to all military personnel who see battle, not just those who are wounded or killed. Those who advocated this change might argue as follows. ‘We believe that all soldiers who fight for their country are entitled to a Purple Heart. After all, they too demonstrate extreme courage and commitment, usually just as much as those who are wounded. And by extending this award to all who serve in battle we by no means intend to diminish the valor of those who are wounded. On the contrary, we affirm and honor their service as much as anyone.’ Surely such an argument misses the point that extending the Purple Heart award in this way defeats the purpose of honoring those who have made a special sacrifice for their country, significantly greater than other soldiers because of the physical harm they have endured. And even the purest intentions of those who would advocate for such a change would not diminish the fact that altering the application of the award would be unjust. So it goes in the case of advocating for same-sex marriage. One can fervently deny any intention to diminish traditional marriage and its special contribution to society. But, as history has all too repeatedly shown, the absence of intention to do injustice is no guarantee that an individual's actions or a government's laws are just. And the institution of same-sex marriage constitutes yet more proof of this fact.
Objections and Replies
I now want to address several possible lines of criticism of my argument. Some might take aim at the first premise by denying that heterosexual unions are an indispensible means of creating new human beings. While the existence of human beings as a species and the preservation of our kind throughout history has so far been a consequence of heterosexual unions, it does not follow that this must always be the case. Given the continuing advances of reproductive technology, it is conceivable (no pun intended) that in the future heterosexual union could become all but irrelevant to the propagation of our species. Already ex utero conceptions are a commonplace in the context of in vitro fertilization, so coitus is no longer necessary for human reproduction. And developments in genetic engineering, particularly through cloning technology, might eventually bring the day when not even the combination of a female egg and a male sperm is necessary.
To this objection I have three replies. First, while in vitro fertilization is indeed quite common today, it is far from being the standard means of human reproduction. Moreover, this technology does employ the combination of male and female germ cells. Second, the envisioned situation in which the combination of egg and sperm is rendered obsolete is merely a theoretical possibility at this point. And if current cloning technology is any indication, it might never be possible in reality. Human cloning experiments have yet to yield any documented successes beyond the embryo stage. And there is good reason to think it will be a very long time – if ever – before cloning technology could result in a healthy human being, even if it could produce a viable fetus. Until then, heterosexual unions do remain the indispensable means by which human beings come into this world and all societies are preserved. Lastly, even if in the distant future genetic engineering made heterosexual unions reproductively obsolete, this would not change the fact that human civilization began through heterosexual unions and that for millennia such unions have been the indispensible means of human propagation. For this reason, for as long as our species lasts, we will all be indebted to heterosexuality in the most profound sense.
A second objection to my argument might focus on the fact that not all traditional marriages produce children. In fact, some married couples cannot reproduce for a variety of reasons, whether due to medical problems or advanced age. So, from the standpoint of justice, how would permitting homosexual marriages be any different than allowing marriages involving infertile heterosexual couples? Robert P. George has effectively addressed this concern by noting that while some traditional marriages might not be reproductive in effect, they are nonetheless reproductive in type. In a passage that gestures toward the sort of argument from justice I am making here, he notes that ‘Reproductive-type acts have unique meaning, value, and significance because they belong to the class of acts by which children come into being. More precisely, these acts have their unique meaning, value, and significance because they belong to the only class of acts by which children can come into being’ [George, Robert P., ‘“Same Sex Marriage” and “Moral Neutrality”’ in Homosexuality and American Public Life, ed. Christopher Wolfe (Dallas: Spence Publishing, 1999). p. 144]. So the fact that some heterosexual couples are infertile does not diminish the fact that heterosexual unions provide a unique and great social good and that, consequently, recognizing same-sex marriage would be unjust.
Also, it must be borne in mind that the lack of precision in doling out special honors to certain groups is not sufficient grounds for abandoning all such honors. For example, to use another military analogy, Veterans Day honors all American veterans, including those who, like my own father, never saw combat but did office work while in the service. And war memorials, such as the Vietnam War Memorial in Washington, D.C., sometimes list the names of soldiers who died of natural causes, such as heart attacks or disease, whether during battle or in bivouac. In these cases, we affirm the propriety or at least the unavoidability of including such people in this honor despite their lack of perfect exemplification of the ideals recognized by the memorial. So, again, lack of perfect precision in bestowing special social honors and privileges is not grounds for rejecting them altogether.
A third objection to my argument addresses the assumption that legally recognized marriages are the only means by which heterosexual unions can be publicly endorsed. Can't the concern of this argument be satisfied by permitting same-sex marriage while giving heterosexual marriages an ‘extra’ sanction or acknowledgment to preserve their special role in society? In other words, aren't there other ways to recognize and affirm the unique social benefits of heterosexual unions? This objection raises practical issues in a way that the previous objections do not. And it is tempting to embark on a discussion of some of these issues, such as what form such an additional endorsement of traditional marriage could take or the difficulty of ensuring that, with the legalization of same-sex marriage, some higher level of social sanction of traditional marriage could be established. But the most direct way of meeting this objection might be simply to note that if same-sex marriages are permitted, then any extra endorsement of heterosexual marriage would be merely symbolic and therefore trivial. Only truly significant benefits accorded to heterosexual married couples are sufficient to justly honor the special social value of such unions. If the current social benefits of marriage are extended to homosexual couples, then it's hard to imagine what substantive advantages or privileges could be reserved for heterosexual unions. For this reason it appears that any such ‘extra endorsement’, from a public policy standpoint, would amount to little more than damning with faint praise.
Conclusion
I have argued that same-sex marriage is essentially unjust, because to the extent that it is legalized it constitutes an elimination of the special sanction of traditional marriage, as warranted by the unique and significant social goods that heterosexual unions provide. For this reason, same-sex marriage should be strongly opposed, at both state and federal levels, irrespective of any theological or consequentialist considerations which might be relevant to the subject.
