The Empirical Falsifiability of Kennedy's Natural Law Reasoning for Gay Marriage

Natural law reasoning is an empirical science insofar as it makes falsifiable predictions about the failure of laws that deny human nature.  So, for example, if one agrees with Robert George and others that the monogamous marriage of a man and a woman is the only kind of marriage that can secure the two natural ends of marriage--conjugal bonding and parental care of children--and that same-sex marriage is not real marriage because it cannot secure these two natural ends, then one can predict that legalizing gay marriage will fail because it cannot satisfy the natural human desires for marital bonding and parental care.  Justice Kennedy agrees that marital arrangements are to be judged by whether they can achieve these two natural ends, but he argues that same-sex marriages can be as successful as opposite-sex marriages in securing these two ends.

Now that Obergefell v. Hodges has established gay marriage as a national constitutional right, we can begin to accumulate the evidence for deciding between these two falsifiable predictions--George's prediction that gay marriage will fail and Kennedy's prediction that it will succeed.  But in the responses to the Obergefell decision that I have seen, I have not seen many people making this point.

Consider the symposium on Kennedy's opinion at the First Things website, which shows the wide range of responses from conservative Christians and Jews.  Many of the writers here insist that they are defending truth against the lie of the LBGT agenda.  The lie, according to Patrick Deneen is "that the conjugal view of marriage has as little basis in reason or nature as denial of basic rights to people based upon the color of their skin.  The analogy's success has relied upon the loud and insistent demand that we not notice, nor regard as relevant or germane, the fact that men and women are different, and most importantly, that their sexual union is oriented toward reproduction."

Here Dineen rightly points to the central constitutional argument in Kennedy's decision.  In Loving v. Virginia (1967), state laws prohibiting biracial marriage were struck down as violating the 14th Amendment's protection of liberty and equality.  It was declared that marriage was "one of the vital personal rights essential to the orderly pursuit of happiness by free men," and that this included the right to marry someone of a different race.  When some homosexuals argued that excluding same-sex couples from marriage was unconstitutional for the same reason that excluding biracial couples from marriage was unconstitutional, the Court rejected this reasoning in Baker v. Nelson (1972).  Kennedy's decision overturns Baker v. Nelson in declaring that same-sex couples have the same right to marry as biracial couples.

The debate over biracial marriage was part of the debate over slavery prior to the Civil War.  Abraham Lincoln's critics argued that his appeal to equality of rights in condemning slavery as morally wrong would dictate an equal right to biracial marriage.  Lincoln responded, particularly in the Lincoln-Douglas debates of 1858, by insisting that he had never argued for the equal right of white men to marry black women.  This is often cited as showing Lincoln's racism, but the careful way in which he spoke suggests that he could not endorse biracial marriage in 1858, because of the racial bigotry of his times, although future changes in cultural attitudes might eventually make it possible to have something like the Loving decision.  This is the sort of moral and constitutional progress over time that Kennedy relies on.

But while conservative Christians today accept the legalization of biracial marriages as moral and constitutional progress, they reject the reasoning by analogy that would extend this to gay marriages, because legalizing biracial marriages in Loving still adhered to the traditional definition of marriage as between a man and a woman.

Now, at least, we can clarify if not resolve this debate by looking at the evidence.  Now we can look at our experience with one-race heterosexual marriages, two-race heterosexual marriages, and same-sex marriages to see how well they achieve the natural ends of marriage--conjugal bonding and parental care.

My prediction is that same-sex marriages can at least approximate opposite-sex marriages in securing these natural ends.  In the First Things symposium, Wesley Hill points to this idea.  He refers to a book by the gay journalist Jonathan Rauch--Denial: My Twenty-Five Years Without a Soul.  Rauch says that his life as a solitary homosexual was empty until he decided that he had a right to marry.  "They and he have found, at last, a name for his soul.  It is not monster or eunuch.  Nor indeed homosexual.  It is: husband."

Hill says that that last sentence of Rauch's book "left a lump in my throat."  "His portrayal of marriage as the main place to find dignity, belonging, and the end of loneliness sounds eerily similar to the view of marriage promoted in otherwise orthodox, traditional Christian churches.  In countless sermons, songs, Bible studies, and informal pew-side conversations, I heard that message like the peal of a gong: singleness equals alienation, marriage means home."

So is gay marriage "eerily similar" to heterosexual marriage in the natural needs that it satisfies? 

If the writers for this First Things symposium are right, the constitutional right to same-sex marriage will not end Rauch's loneliness and lead him home, because it's impossible for same-sex marriage to fulfill the natural desire for conjugal bonding.  Nor will same-sex marriage fulfill the natural desire for parental care, because it's impossible for a same-sex couple to provide properly for the well-being of children.

And yet, of the 23 writers in this symposium, Mark Regnerus is the only one to explicitly state a falsifiable prediction of gay marriage's failure: "marriage is a conservative institution and ultimately indestructible.  Hence an attempted alteration of the sort we are witnessing won't work."  He predicts that while the rate of gay marriage will rise over the next few years, the rate will decline dramatically over the next 15 years as gays discover that gay marriage doesn't work.

Regnerus is an interesting case, because he's a sociologist at the University of Texas who has published a study claiming to show that young adults reared by gay parents are not as well off as those reared by heterosexual parents. He found those raised by gay parents were more likely to have problems — welfare dependence, less education, marijuana use — than young adults from stable families led by heterosexuals. But he later acknowledged that his study didn't include children raised by same-sex couples in a stable relationship, and that provoked criticisms from people who claimed that this was a flawed and biased study.  He was one of the people offering expert testimony in the Michigan case that was appealed to the Supreme Court and became part of the Obergefell decision.  In his testimony, Regnerus said that there is not enough rigorous research to justify any firm conclusions about the effects of gay parenting on children.  In any case, this points to the possibility that empirical research could settle some of the debate over gay marriage.

Here is his original article.  Here is his response to his critics.  And here is a piece in Slate on the debate over his research.

There is another falsifiable prediction here.  Robert George and others predict that when the governmental licensing of marriage is not restricted to the "real marriage" of a man and a woman open to reproduction and caring for children, this will destroy the traditional institution of marriage.  Oddly, this contradicts George's argument that marriage is created not by government but by nature.