Should homosexual couples have the legal right to marry?

KWOK WING KIN1

The issue of the legal right to marry of homosexual couples is heat in the past decade. More and more states recognized the homosexual couples’ legal right to marry. In the states that have not recognized the legal right, there have been hot debates. Indeed, fighting for the legal right to marry is important to the movement of homosexual. If this right is admitted in most countries, then the homosexual couples enjoy almost the same legal status with the heterosexual. Besides the advantage for the homosexual, the success also indicates our society has a great step forward in equality. It will encourage us to eliminate other unreasonable discriminations, I believe.
In part I, I would first point out what are different in nature between homosexuality and heterosexuality, and to look if these differences can be justified for prohibit homosexual marriage. If it is found that homosexuality is inferior than heterosexuality or homosexuality is immoral, the private homosexual act can still be allowed but there is no reason for the state to permit same sex marriage, which is in public realm. Conversely, it will be unjust that the state does not allow the same sex marriage regardless of the equality.
In part II, there may be some counter arguments for supporting same sex marriage due to some consequence of the approval. Some people may find that the consequence will harm the whole society. They will be proved to be a myth, even it is true, it should be ruled out by the principle of equality.
I .differences between the homosexuality and heterosexuality
To find out the answers of the above questions, I would compare the differences between the homosexuality and heterosexuality. The differences will be listed, I would examine them one by one, to find if they are justified to prohibit the marriage .The difference popularly recognized are:
  1. Heterosexuality is natural while homosexuality is unnatural
  2. Homosexuality sex act is a kind of treating the bodies as instruments which damage personal integrity ,while the marital sex act of heterosexuality is not
  3. Heterosexual marriage is procreative while homosexual marriage is not(reproductive act)
  1. Heterosexuality is natural while homosexuality is unnatural
The people who against homosexuality usually think that homosexuality is unnatural. Harry Jaffa, a constitutional historian and political philosopher Harry Jaffa is one of them. He think that the homosexual act “violate the order of nature” to use “men as if they were women, or women as if they were men.”2 For Jaffa , the basic moral discrimination must be grounded in unchanging human nature. However, the homosexuality can be an unchosen condition and ordeal for many homosexuals. Nature has contributed to making many people attract to their same sex. Thus, it is self-contradictory to prove that homosexual is immoral due to unnaturalness.
Even that it is unnatural, it is worth to question that why naturalness is a criteria for morality. Wearing naval ring is unnatural use of the naval, yet is it a matter of morality? As Stephen Macedo, the Director for the Center for Human Values at Princeton University argues that “Apart from the human good, according to nature there are only conventions grounded in nothing more than variable habits and agreement.3 Thus the habits and agreement are only reflection of some peoples’ view, they are not justified to judge whether the matter is moral or not.
  1. Homosexuality sex act is a kind of treating the bodies as instruments which damage personal integrity ,while the marital sex act of heterosexuality is not
This idea is come from the “new natural law” theorists, such as Robert P. George and Gerard V. Bradley. They hold this idea and think that all nonmarital sex acts like sodomitical, masturbation, which “is not for the intrinsic good of marriage itself “ 4and “is wholly instrumentalized to pleasure or some other goal-damages personal (and interpersonal) integrity by reducing persons’ bodies to the status of means to extrinsic ends”5 Nevertheless, marital sex act, which is sexual acts of the reproductive type can consummated and actualize the two-in-one flesh communion of persons. It will be discussed more in next section.
We can divide this statement to be two part: the end and the means, such as “pleasure” and “instrumentalization” that George and Bradley suggested, are problematic separately of nonmartial sex act. Let us focus on homosexuality sex act.
George and Bradley claim that homosexuality sex act is for “pleasure”, “desired experience”. They do not think pleasure is bad but “depend on the moral quality of the acts in which pleasure is sought and taken”6 Then it will be the question of the act that is the means of the end. Thus there is no conflict about whether the end can be intrinsic good.
For “instrumentalization”, George and Bradley it is to treat the body “as a pleasure-inducing machine”7 and “alienate one part of the self, namely, one’s consciously experiencing (and desiring ) self, from another, namely, one’s bodily self. But these parts are, in truth, metaphysically inseparable parts of the person as whole.” 8
The argument can be divided into three parts as follows:
  1. Homosexual act is merely using (or wholly instrumentalizing ) the body for pleasure or experience
  2. Wholly instrumentalization cause an existential alienation of the body, that is disintegrate the person
  3. Thus, homosexual act is wrong
To response this argument, I would first like to ask that why marital sex act is not instrumentized the bodies for the intrinsic good of marriage. The sex is also the means in the marital sex act. George and Bradley may agrue that nonmarital sex act is “wholly” instrumentalized. But why does partially instrumentalization in marital sex act is allowable for them? Furthermore, will this partially instrumentalization harms the instrinsic good of marriage?
Secondly, if they just oppose that “those acts effect an existential alienation of the body from the conscious self by simply using the body as an experience-inducing machine9, why the homosexual sex act falls into this category. Beside pleasures, experience, aren’t there some human goods that can connect to the homosexual act, like mutual self-giving, shared intimacy, as same as that in marital sex act? This judgment is implausible and degrades the value of the homosexual act.
As George and Bradley defense their view points from the attack of Macedo, which uses chewing gums as a analogy, they say that “People ordinarily, if usually unreflectively, chew gum as part of larger projects, just as rocking in a chair, twirling a pencil, or going for a walk are characteristically parts of larger projects.” Then, it is reasonable to think that even chewing gum is part of larger project, why all homosexual acts are mere for pleasure, but not are parts of “larger project”?
Thus the premise, proposition (1) is hardly to be true. And the conclusion, proposition (3) cannot be right.
Until this point, we find that the homosexual act cannot be proved as immoral; still it is not sufficient to prove that homosexuality couple should have legal right to marry. In the follow section, I will refute the argument that homosexuality is inferior than heterosexual in the matter of marriage.
  1. Heterosexual marriage is procreative while homosexual marriage is not
For this position, I will discuss two arguments: one is from George and Bradley, another one is from Margaret Somerville, an ethicist and academic. Former suggest marriage as a two-in-one-flesh communion of persons .Latter argues marriage as culture.
Marriage as a two-in-one-flesh communion
Marriage, considered not as a mere legal convention, but, rather, as a two-in-one-flesh communion of persons that is consummated and actualized by sexual acts of the reproductive type, is an intrinsic (or, in our parlance, “basic”) human good; as such, marriage provides a non-instrumental reason for spouses, whether or not they are capable of conceiving children in their acts of genital union, to perform such acts.10 George and Bradley argue.
We can analyze their position as follows:
  1. Marriage as a two-in-one-flesh communion of persons.
  2. The communion is consummated and actualized by sexual acts of the reproductive type.
  3. Marriage is an intrinsic human good;
  4. Thus, marriage provides a non-instrumental reason for spouses to perform the sexual acts of the reproductive type, even the spouses are sterile, it is not a matter.
Proposition (1) itself is uncontroversial in literal meaning, the problem is the condition of this proposition, that is proposition (2).Proposition (2) is doubtful, however it is the key element of the position. Proposition (3) is unproblematic. Proposition (4) is used to against the analogy of sterile couples and homosexual couples, but this proposition is arguable.
Proposition (2) is mysterious. The definition of consummation is “physical union
of male and female genitalia … leading to the ejaculation of semen from the penis into the female reproductive tract.”11Then, what is the importance and ground to confine the communion by this kind of consummation?
George and Bradley would tell us that “Consummation has traditionally (though, perhaps, not universally) been recognized by civil as well as religious authorities as an essential element of marriage.” Furthermore, they also say that
By contrast, many other people perceive quite easily the special value and significance of the genital intercourse of spouses…They are therefore confident that sodomitical acts cannot be marital … Thus, as a matter of common sense, they deny that marriage, as a moral reality, is possible for couples of the same sex.
Nothing more than “tradition” and “majority” is their reason. Apparently, tradition and majority views need not be true. Polygamy had been also a tradition in many places in the past, then why they do not like to sustain this tradition? Definitely, it is because that we think that polygamy bad for woman, bad for their equality. As same as polygamy, if the requirement of consummation in marriage will lead to the unfair treatment of same sex marriage, which is discriminating the homosexuality, then it is worth nothing to uphold this tradition. Majority view also cannot be justified to suppress the right of minority, and why the content of marriage is monopolized by the heterosexuality? Although the reality is that heterosexuality is the majority, their view of marriage cannot be a reason to ban the same sex marriage, given that homosexuality is not immoral.
Therefore, the meaning of “two-in-one flesh communion” for society (not for religion) should be metaphorical, an emotion union that is completed in various ways, which include the mutually satisfying orgasmic acts of spouses. The insistence of consummation will be appeared to be mysterious and religious. And it do not benefit the discussion, since the state should be neutral and refrain from the religious views.
For proposition (4), George and Bradley hold the position they do not care the capacity of reproduction, but whether the sexual acts are reproductive type. Also, they point out that even procreation, should not consider as the end of the marital sex act.12They rule out homosexual marriage to be possible, by the barrier of reproductive type sexual acts, not the fact that homosexual couples cannot reproduce. Then it will face the same question mentioned in the above “two-in-one flesh communion” argument that is lacking the ground and appeared to be mysterious.
Marriage as culture
The nature of marriage as the societal institution that represents, symbolizes and protects the inherently reproductive human relationship” , Somerville suggests. She argues that the primary purpose of marriage is “to protect the inherently procreative relationship of opposite-sex pair-bonding or to protect an intimate relationship for the purposes of its procreative potential”13 rather than “to give social and public recognition to an intimate relationship between two people”. However, is it really most of the people thought about? As a common sense, the primary reason of the couples to be married is the latter. Also, there is a increasing trend that not to have baby after getting married or to have a baby outside marriage. Therefore, the connection of marriage and procreation is not as strong as Somerville suggests.
Somerville may response that the approval of same sex marriage will lead to “no institution that establishes a social-sexual ecology of human reproduction and symbolizes respect for the transmission of human life through sexual reproduction.” I would like to challenge that why the transmission of human life need to be biological, that is through human reproduction. Why it cannot be done by adoption orphan or reprogenetic technologies.(though it is a worry for Somerville ). And the well-being of the family can also be promoted in homosexual marriage. Thus, the culture built around the marriage can be mostly maintained.
II Consequentialist counter arguments
After part I, I have finished the proof that homosexual marriage cannot be treated as immoral or inferior. Nonetheless, there are other argument that concern about the consequence that be brought after the permit of same sex marriage. They mainly focus on the use of reproductive technology, slippery slope: drawing the line on polygamy, incest, bestiality.
The use of reproductive technology
In her article, Somerville continue argue that “there would, also, probably be a duty to provide access to the means for “collaborative non-coital reproduction” (procreation through the use of reproductive technologies).”14 and “after all, if exclusion of same-sex couples from marriage is found to be discrimination by way of comparison with opposite-sex couples, not providing same-sex couples with the means for procreation…when procreation is possible between opposite-sex couples, is a related discrimination.”15
However, if the use of certain reproductive technologies are problematic (maybe ethically), then the infertile couples will face the same problem, not only homosexual couples. And the real matter in the use of reproductive technology is to identify that which kind of technology should be prohibit to use, for example, cloning. The prohibition should be based on some reasons that for protecting human good. Thus, the restriction in the use of reproductive technology will not be discrimination to homosexual couples or infertile couples.
Slippery slope: drawing the line on polygamy, incest, bestiality
Some traditionalists would like to link up homosexuality with polygamy, incest, bestiality. They think that the granting of legal right to marry to homosexual couples will “start down a dangerous path with no reasonable stopping point” 16However, homosexuality is totally different with polygamy, incest, bestiality. As John Corvino states that”there is little evident that moral acceptance of gay relationships will incite a wave of support for incestuous relationships, for instance.”17 Hence, the homosexuality, polygamy, incest and bestiality should be reviewed independently.
Conclusion
In part I, the homosexual marriage has been proved that it is not intrinsically immoral or inferior to heterosexual marriage. In part II, the consequentialist counter arguments have been examined and they should not be the reasons to restrict same sex marriage. In the end, homosexual couples should have the legal right to marry and the success will be a great step forward in the history of civil rights movement.
Reference:
  1. HARRY V. JAFFA, ORIGINAL INTENT AND THE FRAMERS OF THE CONSTITUTION: A DISPUTED QUESTION (1993)
  2. Stephen Macedo, Homosexuality and the Conservative Mind, 84 Geo. L.J. 285-300 (1995)
  3. Robert George and Gerard Bradley, Marriage and the Liberal Imagination, 84 Geo. L.J. 310-320 (1995)
  4. consummation. (1977). In Webster’s New Collegiate Dictionary.
  5. Margaret A. Somerville, The Case Against ‘Same-Sex Marriage,” April, 2003, www.marriageinstitute.ca/images/somerville.pdf, accessed on September 10, 2007.
  6. John Convino, Homosexuality and the PIB [Polygamy, Incest, and Bestiality] Argument, 115 Ethics 501-534 (April 2005)
1 University number:  BEcon&Fin III
2 HARRY V. JAFFA, ORIGINAL INTENT AND THE FRAMERS OF THE CONSTITUTION: A DISPUTED QUESTION 256 (1993)
3 Stephen Macedo, Homosexuality and the Conservative Mind, 84 Geo. L.J. 265 (1995)
4 Robert George and Gerard Bradley, Marriage and the Liberal Imagination, 84 Geo. L.J. 314 (1995)
5 Id, at 314
6 Id. at 316
7 Id. at 314
8 Id.
9 Id. at 318
10 Id. at 301
11 consummation. (1977). In Webster’s New Collegiate Dictionary.
12 George and Bradley, supra note 4 , at 314
13 Margaret A. Somerville, The Case Against ‘Same-Sex Marriage,” April, 2003, p4
www.marriageinstitute.ca/images/somerville.pdf, accessed on September 10, 2007.
14 Id. at 7
15 Id.
16 John Convino, Homosexuality and the PIB [Polygamy, Incest, and Bestiality] Argument, 115 Ethics 502 (April 2005)
17 Id. at 504