Sunday, October 18, 2015

The Natural Law of Marriage and the Obergefell Decision: Four Possibilities

For those of us who believe there is a natural law of marriage, there are four possible ways to respond to the decision in Obergefell v. Hodges declaring same-sex marriage a constitutional right.

The first possible response is the oppositional position.  We might argue that by nature only the marriage of one man and one woman can be a real marriage, because this is the only kind of marriage that fully satisfies the two natural ends of marriage--conjugal bonding and parental care of children.  Consequently, the decision in Obergefell is opposed to the natural law of marriage, because the legalization of same-sex marriage teaches us that same-sex marriage can fully satisfy the two natural ends of marriage, and this is a lie.  Those who take this position will have to try to overturn or evade the decision in Obergefell.  Most of those who profess to believe in the natural law of marriage--people like Ryan Anderson and Robert George--assume that this is the only possible position to take if one believes in natural law.

But there are other possibilities.  The second possible response to Obergefell is the compatibilist position.  One could argue that the traditional proponents of natural law have failed to see how same-sex marriage is compatible with the natural law of marriage, because same-sex couples can secure the two natural ends of marriage--conjugal love and parental care--without weakening heterosexual marriage.  As I have argued in previous posts, this turns on an empirical question: Will the legalization of same-sex marriage destroy opposite-sex marriage and harm the children of both heterosexual and homosexual parents?  If the answer is no, then the compatibilist position will be confirmed.

The third possible position is the covenant marriage position.  In three states--Lousiana, Arkansas, and Arizona--people seeking marriage licenses must choose between "covenant marriage" and "standard marriage."  Standard marriage is the sort of marriage that has been adopted in all states since the 1950s, which allows for no-fault divorce.  Covenant marriage does not allow for no-fault divorce.  Prior to the 1950s, those married couples seeking a divorce had to prove that one of the couples was guilty of adultery, abuse, or abandonment.  Prior to 1960, divorce was extremely rare.  Since 1960, divorce has become common because of the no-fault divorce laws. 

According to Ryan Anderson, this is what has destroyed the culture of real marriage.  "By providing easy exits from marriage and its responsibilities, no-fault divorce helped to change the perception of marriage from a permanent institution designed for the needs of children to a temporary one designed for the desires of adults" (Truth Overruled, 40).  "Same-sex marriage is a consequence, not a cause, of the collapse of our marriage culture.  We have heterosexuals, not gays and lesbians, to blame for decades of marital instability, with the consequent harm to women, to children, and especially to the poor" (161-62).  Remarkably, however, Ryan says nothing about covenant marriage as the way for the law to teach that only marriage without no-fault divorce is real marriage. 

Those seeking a covenant marriage are required to go through marriage counseling before their marriage.  They must be counseled that marriage is a permanent commitment between a man and a women and a commitment of the spouses to care for their children.  They must sign a statement affirming this.  A spouse seeking a divorce must first go through marriage counseling.  A divorce is granted only when the other spouse has committed adultery, or has abused the spouse or the children, or has committed a felony, or has engaged in substance abuse, or when the spouses have been living separately for at least one or two years.

I am not sure whether the Obergefell decision will be interpreted as challenging the constitutionality of covenant marriage laws.  I assume that in Louisiana, Arkansas, and Arizona, "standard marriage" will be opened up to same-sex couples, and "covenant marriage" will continue to be an option for heterosexual couples.  One can argue that this is not an unconstitutional discrimination against same-sex couples because it serves the rational purpose of promoting real marriage as securing biological connection, sexual complementarity, and stability; and those heterosexual couples who refuse to accept the principles of real marriage are not given a "covenant marriage" license.  This removes the contradiction in the position of those like Ryan Anderson, who argue that opposite-sex marriage laws rightly teach the ideal of real marriage, but then he allows opposite-sex couples to get a marriage license even when they are forming families without the biological connection, sexual complementarity, and stability of real marriages.  Under these conditions, excluding same-sex couples from a marriage license is an arbitrary discrimination with no rational basis, and thus unconstitutional violation of the Privileges or Immunities Clause and the Equal Protection Clause of the Fourteenth Amendment.

The defenders of real marriage should promote the adoption of covenant marriage law in all of the states.  To avoid the religious connotations of "covenant," the law might distinguish between "real marriage" and "standard marriage."  This would allow the law to teach the ideal of real marriage, while allowing opposite-sex and same-sex couples equal access to "standard marriage."

The fourth possibility for those who believe in the natural law of marriage is the privatization position.  Throughout most of human history, marriage has been a private contract that did not require a license from a government.  By returning to that system, state governments would withdraw from the controversy over marriage and would not favor one form of marriage over another.  Individuals and groups could promote real marriage by enforcing this as a social norm.  And if real marriage is rooted in natural law, as I think it is, then we can predict that real marriage will be the preferred form of marriage for most human beings because it satisfies their natural desires for conjugal bonding and parental care more fully and effectively than any other form of marriage.


Lorenzo said...

"Real" versus "standard" marriage is not going to fly. "Covenant marriage" actually works much better, since covenant has perfectly reasonable legal meanings.

Also, privatising is not as good an option as folk think, because having recognised marriage forms greatly cuts down on transaction costs.

Anonymous said...

You keep repeating "two natural ends of marriage--conjugal bonding and parental care of children." But this is question begging; it confuses the ends of the institution with the subjective ends of the participants. Instead, marriage is an institution designed to prevent the problems that result from the production of children. Love is just a means to keep the parents together to help prevent these problems. The main social problem marriage is designed to prevent is externalization onto society of the costs of caring for children, such as the need for orpanages, state funded child support, street children, etc.