Starting off our discussions for 2013 is an excerpt from Jean Porter’s essay ‘The Natural Law and Innovative Forms of Marriage: A Reconsideration’ originally published in The Journal of the Society of Christian Ethics in December 2010. Those interested in this theme may also be interested in two of the Digby Stuart Research Centre’s research seminars later this term. Details are available here.
Like the scholastics, we are living through a period of rapid social change and corresponding institutional breakdown and reformation, including extensive and far-reaching changes in the practice of marriage. Like them, again, we are confronted with the twofold need to understand these changes and to direct and regulate them through social and legal mechanisms. How might the scholastics’ complex account of the purposes of sex and marriage serve to illuminate our own efforts to address these issues? Let me try to answer this question by setting out, in what will admittedly be a brief and preliminary way, what a natural law analysis of marriage might look like today.
This analysis begins at the same point as the scholastics did – namely, that whatever else we may want to say, we should recognize that both the sexual function and the conventions of marriage serve the purpose of procreation, broadly construed to include the education and socialization of children as well as their physical reproduction. Admittedly, this kind of appeal raises a host of philosophical issues that would need to be addressed in more detail than I can attempt here. Nonetheless, unless we discount the fact that we are mammals and complex social primates, it is difficult to see how a plausible analysis of sexuality and marriage could fail to take account of the role that these play in the human reproductive process. What is more, I would argue that a theological commitment to the goodness of creation implies that we as Christians have a particular stake in affirming the value of procreation and giving this value a central place in the interpretations and practices surrounding sex and marriage.
At the same time, however, this line of analysis leaves open the possibility that the institution of marriage can also serve other purposes, legitimate and worthy of promotion so long as they do not undermine the orientation of the institution towards procreation, comprehensively considered to include the extended processes of education and socialization. Indeed, it would be surprising if such a centrally important institution, shaped by a complex history and responsive to diverse social exigencies, did not serve a wide range of purposes both for individual participants and for the community as a whole. To a very considerable extent, these purposes will be recognizably analogous to those informing medieval marriage – to provide for the decent regulation and expression of sexual desire and to sustain a network of social relations. In addition, and as one expression of the latter purpose, marriage provides a framework for establishing claims for mutual support, personal and financial, and for securing society’s recognition of these claims – by enforcing demands for care and sustenance, recognizing that each spouse has a primary right to make health-care decisions for the other, and the like. Finally, marriage serves what many today would regard as a centrally important function of providing a framework for the public expression and support of interpersonal love.
The diverse purposes of marriage have, in their turn, provided a framework for reflection on the purposes of the sexual function itself. Admittedly, the lines of influence do not all run in one direction. It seems clear that both within Catholicism and in the wider society, changing attitudes towards sex, the emergence of the concepts of sexuality and sexual orientation, and the increasing centrality of an ideal of romantic love have all emerged and developed in tandem with the development of modern Western ideals and practices of marriage. Nonetheless, it seems safe to say that our modern experiences of married life have at least opened up possibilities for new ways of thinking about the place of sex in human life, and have made other ways of construing the sexual function less plausible.
These observations suggest the possibility of a natural law account of marriage which does not tie the teleological analysis of marriage narrowly to the purposes of the sex act, but enables us to expand and develop our understanding of the latter in light of our experiences with marriage. At the same time, if this is to be plausible as a natural law analysis, we need an account of the ways in which the diverse purposes of sex and marriage fit within a general teleological account of the life and functioning of the human organism. The critical point here is that sex and marriage need to be seen within the context of an overall pattern of life, one which we share with the other primates to some extent, even though it both informs and is transformed by our capacities for rationality. Certainly, on any plausible account of the place of sexuality in a mammalian species such as our own, sex will serve a reproductive purpose, but the fact that we are social primates as well as mammals points to a more complex account of the overall purposes of sex. That is to say, we are not only animals, which reproduce sexually, but social animals, for whom sexual exchange and interaction serve to express and cement social and personal bonds – indeed, to forge personal bonds, and hence to some extent and with many qualifications, to shape and to form personal identity.
How might we bring this line of analysis to bear on the proposed recognition of same-sex marriages? It seems clear, first of all, that if someone were to suggest that same-sex unions should constitute the only, or the paradigmatic form of marital union, this would be ruled out by a natural law analysis of marriage. But of course, no one is proposing that – what is envisioned, rather, is the extension of the institutional claims and restrictions of marriage to a class of unions which cannot fulfill the reproductive purpose of marriage, but which may well embody other aims served by that institution. This, it seems to me, is a very persuasive claim. We already extend the institution of marriage to include heterosexual couples who are incapable of reproduction, as is the case when both partners are elderly. These extensions are justified, it will be said, because for us marriage represents more than just a framework for sustaining reproduction and kinship bonds; it also provides a framework for expressing and supporting the mutual love of two people, and it would be cruel and perhaps even unjust to deny that support to those who are incapable of reproduction. Just so; and by the same token, refusing to extend this framework to same-sex couples appears to be arbitrary and therefore unjust, given the purposes of marriage as we understand and practice it today. We as individuals and as a society have a particular stake in promoting the reproductive functions of marriage, whatever else we do – but that does not rule out the possibility of recognizing, and indeed promoting other purposes, as our traditions and current conditions may suggest.
It might be objected that this line of argument is indeed compelling with respect to the elderly, and other heterosexual couples who are incapable of having children. But there is something intrinsically immoral about a homosexual union, and that is why we should not recognize these unions as marriages. In response, let me say, first of all, that it does not strike me as obvious that we should necessarily refuse to recognize immoral unions as marriages, just because they are immoral. But bracketing that question, it is not clear to me why, on natural law grounds, we should characterize same-sex unions as per se immoral. This is, of course, a complex and contentious issue, and I will not attempt to address it in any detail here. Nonetheless, I do want to indicate, in what will admittedly be a summary way, three considerations in support of the view that same-sex relations are not intrinsically unnatural in a pejorative sense.
The first of these has already been the object of widespread discussion. For the scholastics, homosexual acts represent a perversion of the sexual faculty because they are intrinsically sterile. Thus, these acts are wrong for essentially the same reasons as a sex act rendered sterile through contraceptives is wrong. By the same token, if we do not have sufficient natural law grounds to rule out the use of contraceptives, then it is difficult to see why homosexual acts should be judged as necessarily immoral. This of course remains one of the most contentious issues in Catholic moral theology; without attempting to sort through these debates, let me just say that in my view, deliberately non-reproductive sexual acts are not ruled out, on natural law or other grounds. The reproductive purpose of sex sets a paradigm for understanding sexuality and giving it institutional expression, but that does not necessarily mean that this purpose must be expressed, or even retained as a possibility, in each and every sex act.
What about the claim that same-sex relations are intrinsically unnatural because they represent a violation of the natural complementarity of man and woman? The difficulty with this claim, it seems to me, is that it moves too quickly from the recognition of the naturalness of the distinction of sex, with its innate orientation towards reproduction, to the assertion that the gender roles through which we construe masculinity and femininity are immediate and inevitable expressions of our nature as a two-sexed species. But this does not follow, any more than the natural origins of marriage necessarily imply that our practices of marriage represent the only possible framework within which human reproduction can take place. Indeed, to a very considerable extent (although of course not completely) the conventions of marriage will determine the conventions of gender in any given society – that is to say, the ideals and practices shaping masculine or feminine roles will be largely shaped by our expectations about the proper ways in which men and women relate to one another in marriage. To the extent that this is so, ideals of the complementarity of the sexes will depend on a particular view of marriage, one in which clearly marked sex differences are central to the formation and strength of the marriage relation, and by the same token these ideals cannot provide an independent argument for the claim that marriage must consist in a heterosexual bond. An extension of the marriage relation to same-sex unions would imply greater flexibility in the construal of gender roles – but that would not necessarily be a bad thing.
At most, these arguments will serve to clear away long-standing objections to same-sex relations, but they still leaves open the question of whether and in what ways same-sex acts might embody and promote at least some of the natural purposes of sex. (Lest this seem too chilly a formulation, I should add that exactly the same question can – and should – be asked about foreseeably sterile sexual relations between heterosexuals.) In this case, I want to suggest, the obvious, popular answer to this question is right – that is to say, such acts can serve as an expression of deep interpersonal love, and deserve respect to the extent that they do. I think there can be no real doubt that same-sex couples can and do experience deep interpersonal love which they are moved to express sexually. The real question that arises at this point is whether we have good grounds, in natural law terms and theologically considered, for affirming and seeking to protect this love. I want to argue that we do. This, it seems to me, is one point at which ongoing reflections on the purposes of marriage have significantly altered our understanding of the purposes that sex itself can serve in human life. More specifically, I would suggest that the Christian conception of marriage as an expression of a sacramental bond between two persons has transformed our sense of the value of the personal bond itself – and eventually, of the value of the sex act as an expression of that bond.
My observations here will again necessarily be brief, but let me at least indicate what I have in mind. In the first place, once we grant that sex serves more than one purpose in human life, including the formation and expression of personal bonds, it is apparent that the expression of interpersonal erotic love can readily be interpreted as a natural purpose in these terms. This does not mean that romantic love is necessarily a cultural universal; like many other natural aspects of human existence, this phenomenon may well require a particular set of social conditions in which it can emerge and flourish. This brings me to a further point. So far as I have been able to determine, the scholastics do not include the expression of personal love as one of the purposes of sex. And yet, their overall account of the spiritual significance of sex and marriage suggests that our modern views may not be so foreign to them as we might think. The emphasis on the volitional and spiritual dimensions of marriage, taken together with the scholastics’ tentative yet clear recognition that sex within marriage can serve purposes other than the strictly procreative, both point in the direction of affirming the value of interpersonal love, and of the sex act as an expression of that love. At any rate, it seems overwhelmingly probable that modern ideals and practices of romantic love were given legitimacy and decisively shaped by the theological ideals and ecclesial practices of marriage that took shape in the period we are considering.
In my view, a natural law analysis of the purposes of sex and marriage does not foreclose the possibility of recognizing unions which are by their nature non-reproductive, but which allow for the expression of the mutual fidelity and interpersonal love of the partners – indeed, we have good theological as well as natural law reasons for doing just that. At the same time, a natural law analysis would rule out an interpretation of marriage according to which the expression of love should be the primary and regulative purpose of marriage as a social institution, to the neglect or detriment of its fundamental purpose as a framework for reproduction. There is a good case to be made that a current tendency to regard romantic love as the sole and sufficient basis for a marriage reflects the exigencies of a capitalist society in which family structures stand in the way of the processes of production and the accumulation of wealth. To the extent that this is so, we have good reason to resist these processes, or at least to try to hold them within due bounds. This, it seems to me, is the decisive front on which the battle for marriage and family must be waged – not legislative and court battles over same-sex unions, which are at any rate unlikely to have a significant impact on the overall shape of the institution of marriage.[i]
Notes
[i] An earlier version of this paper was delivered at the Spring 2006 Natural Law Colloquium at Fordham University School of Law, February 2, 2006. I am indebted to those present for many stimulating questions, comments, and suggestions. I especially want to thank Charles Reid and Eduardo PeZalver for their perceptive and very helpful responses to these remarks.
Steve Chalker. has a interesting piece. 15 January on his website oasis. also on red letters Christians. can we agree that the person who was born gay lesbian. is someone son/daughter. there is a interesting article in the Tablet 12 January 2013. please dont tell me, that those who were invited to come and meet with Jesus, dine with him. were white hetrosexual, women and men. whom one would find on the latest fashion magazine
if we only concentrate on the sexuality of the person. we are missing out on the bigger picture
those who oppose to gay marraige do so out of fear ignorance, fear of letting go of their power and control
I wish she had addressed the objection of those who oppose same sex unions because of the issue of the the “two in one flesh” analogy does not work in a same-sex genital union. Perhaps this is too much of a reduction to the biological complementarity of the physiological structure of the male and female genitals, but it is an issue I feel needs to be faced and addressed at least for those who are rooted in a biblical background on the meaning of marriage as a two in one flesh union almost demanding the unity that only a heterosexual couple can seemingly enact and symbolize or is this an element like procreation that is not essential to a newer understanding of marriage one of the elements that need not necessarily be considered for a natural law or theological argument?
Hi Robert,
Thanks for your comment. If ‘two in one flesh’ is an analogy, I’m not sure why it can’t also describe same-sex couples. The analogy isn’t concerned with genital union, but the merging of the lives of two separate individuals, is it not?
Thomas
I surely agree that the “two in one flesh” analogy expresses much more than a simple biological or physiological union of male and female, but for some reason I can’t seem to be able to separate that bodily union made up of the complementary genital structures of man and woman as totally unrelated to or even unnecessary for the fulness of the same sex “two on one flesh” characteristics like intimacy, love, friendship, etc. Does not the two in one flesh, biological act of husband and wife almost be seen sacramental (effecting what it it signifies) in a way that no other physically union of two individuals of the same sex can? I am not sure some kind of a two in one flesh act of a same sex couple could be described as a lesser a secondary sign as compared with a heterosexual two in one flesh all things being equal (love, commitment, friendship, intimacy cnew292@ etc.) . Some would argue that is the “second class citizenship” solution.
That’s an interesting and neglected perspective Robert. Briefly, I think there are two possible theological responses, but I’d very much welcome your thoughts on the following:
(a) The idea of sexual complementarity as male and female together making one flesh risks a pagan copulative ontology which Christian theology veers towards with Aristotelianism, but which it also rejects. In ‘The Symposium’, Plato argues that each sex is incomplete until it finds its sexual other and copulates with it, but Thomas Aquinas offers a quite different argument which I don’t think he manages to square with Greek sexual ontology. Thomas argues that humans are sexually differentiated because we are not created solely for the purposes of procreation, and therefore sexual difference is not what defines us as persons. As male and female each of us is a whole person entire in ourselves, created primarily for the life of the intellect which is orientated towards God, and our generative capacity as male and female is only significant when we are engaged in procreative activity. (SCG IV, 11, 5) Of course this did not stop him adopting a thorough-going paganism in the sexual ordering of the universe and of society, but I would argue that’s a point at which Thomas lets Aristotle get the better of his theology. One argument that flows from this would support Humanae Vitae – human sexuality can’t be separated from its procreative function – but it wouldn’t support the Theology of the Body movement which ontologically sexualizes us in all our characteristics and relationships. That’s just neo-paganism in Catholic garb. However, if one accepts (as Church teaching does) that the sexual relationship is unitive even when it’s not procreative (e.g. in an infertile or elderly couple), then the argument against same-sex marriage becomes more difficult to justify. I have a copy of a letter that Cardinal Cormac Murphy O’Connor wrote to somebody when he was Archbishop of Westminster, saying that one reason why the Church couldn’t accept artificial contraception was because it would then have problems defending its opposition to homosexual relationships – an interesting admission!
(b) I think we need to rediscover a sacramental ecclesiology which reminds us that the relationship between the sexes in Genesis is actually transformed in Ephesians 5, when it becomes the prototype for the relationship between Christ and the Church. The author starts off talking about husbands and wives, but he seems to tie himself in verbal knots and ends up saying that it’s really about Christ and the Church. If the theological meaning of marriage refers primarily to Christ and the Church, then human marriage is derivative rather than originary. If marriage takes its sacramental meaning from the relationship between the resurrected body of Christ and the mystical body of the Church (made up of men, women and children), then surely any lifelong committed human sexual relationship based on mutual love, fidelity and commitment can be a sacramental expression of that primary sacrament of Christ and the Church? Again, Theology of the Body with its sexual interpretation of the Mass as a union between an essentially masculine bridegroom and a symbolically feminised and collective Bride loses its way here.
I’d be interested Robert for you and others out there to contribute to and challenge these suggestions, because they are quite key to my recent research. Where am I not seeing things that I ought to see in arguing along these lines, that would defend theology of the body and essential heterosexuality in marriage?
Tina Beattie.
So many questions already from this post. I will focus (briefly) on three.
1. I agree with Jean Porter that teaching that the sexual intercourse of infertile couples is moral opens the door to the question: on what basis is it moral? The basis is that the procreative meaning of sex is not the only one; there is also the unitive one (mutual love, fidelity etc). The fact that procreation is possible only a few days a month even for fertile couples and that intercourse on infertile days is regarded as moral boosts this argument. That applies also to same-sex unions.
2.Bob Nugent’s question about “two in one flesh” fits in here. The Hebrew word here does not intend only the physical body but the whole person. “Two in one person” is a more culturally-nuanced translation, and the unitive dimension enters in again. The “two in one person,” of course, is a metaphor (or analogy if you like) and needs interpretation, but (given the growing solidity of the notion of sexual orientation) I have no doubt that it applies also to same-sex unions. Todd Salzman and I have argued for the deconstruction and reconstruction of the magisterium’s notion of “complementarity” In this context into “holistic complementarity” that includes the physical, the personal, and the sexual orientational. In this context, same-sex complementarity is perfectly possible.
3. I believe the solution to the moral questions about same-sex marriage is to be found in the broad notion not of procreation but of marriage. There are teachings by Pius XII and Paul VI that are relevant here. Both teach that procreation is a good but not an essential good without which marriage could not exist. Procreation can be avoided for “serious reasons,” “just reasons,” “even probable reasons,” and couples can use the infertile periods to have intercourse and avoid conception. When Catholic moral teaching reached this point, Joe Selling once argued, it also reached an impasse. And the impasse opens onto the question of same-sex unions in which procreation is not possible. But, of course, as we are seeing more and more, adoption is, which opens onto the important notion of “parental complementarity.”
Just some thoughts sparked by the discussion up to now. Thanks for the opportunity.
Mike Lawler
Dear Jean,
Your “reconsideration” sounds like a recantation of everything that you have written about natural law, mainly under the pressure of political correctness (you’re “evolving” as the now say in the White House) !
Earlier, I was very impressed with your book, “Nature as Reason” because you were bringing “nature” back into natural law — in the teleological sense of “natural inclinations to the proper acts and ends of human beings” as rational and social animals. You once admirably resisted the pressures of the modern natural law thinkers to focus only on the rationality of the moral law (the Kantianizing of natural law). Now you are repudiating everything that you have done and written — “nature” does not matter when it comes to gender roles (“fathers” do not have be men, “mothers” do not have to women) or sexual complimentarity or the natural function of sexual organs. What happened? It seems like you’ve been pressured by your peers without giving any real reasons to repudiate your previous positions. Disappointing … please reconsider your reconsideration.