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jean porterStarting 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.