Yesterday Iowa became the third state in the Union where individuals can receive a legal document purporting to confer on two people of the same sex the legal status of a married couple. A combination of judicial fiat and executive imposition has produced a result that strikes at the heart of the moral understanding that supports the existence of civil and political society not only in Iowa, but everywhere in the United States. A new law has been enacted in Iowa without the consent of the people.
As elsewhere, a combination of factors has produced this tyrannical act. However, I think the main contributing factor is a profound, and in some cases willful, misunderstanding of the nature of the issue involved. The judges promoting homosexual marriage pretend that their opinions are justified by the equal rights argument used to attack the regime of racial discrimination in the United States. But the equal rights argument only applies where the criterion for discrimination has no objective validity. When a minor league baseball team holds tryouts for a new pitcher, someone with a bad arm cannot claim an equal right to be made part of the bull pen. The assertion of right arises from a standard or rule that reflects the substantive requirements of the activity in question.
Every assertion of fundamental right similarly involves the invocation of a standard or rule that governs the human activity with respect to which the assertion is made. The standard or rule establishes the rightness of the activity. The nature and extent of the asserted right depends in turn on the nature and extent of the authority that governs its rightness. Under our constitutional system the ultimate authority for positive law is the will of the people, as expressed in laws enacted by legislatures composed of their constitutionally elected representatives. Judges have no authority to enact new laws. They may only apply laws properly enacted by the appropriate legislative body.
How then do the Iowa judges purport to establish as law a practice that contradicts and overturns existing legislation? They may do so only if and when existing legislation contradicts a higher law. The highest form of human positive law in Iowa (the State constitution) provides no explicit basis for overturning existing Iowa's existing marriage legislation. But using a specious application of the equal rights argument, the Iowa judges appeal to the still higher legal authority from which the people themselves derive their right to representative self-government, i.e., government based upon the consent of the governed. This is the authority of substantive rightness, which is the basis for the concept of unalienable right that underlies both the people's right of self-government and every individual's claim to equal treatment under the law. But unalienable right arises (as the term suggests) with respect to actions or activities that are inseparable from the human existence and identity of the individual. It is not only about what individuals are free to do. It is about what they are substantively required to do in order to preserve their human existence and identity. Unalienable right is therefore grounded in the obligations connected with human self-preservation. Since it is right to fulfill these obligations, every individual has the right to do so. Respect for moral obligation thus constitutes the rightness of the right.
Every assertion of right therefore assumes some such ground of rightness. The ultimate and most general assertion of rightness arises in the context of the standard or rule that constitutes the human existence and identity of each individual. The American Declaration of Independence alludes to this standard when it asserts that "all men are created equal and endowed by their Creator with certain unalienable rights." On account of this standard, government must be based upon the consent of the governed. As they exercise the sovereign authority they acquire on account of this requirement of justice, the people cannot violate it, not without destroying their claim of sovereignty and vitiating the lawful authority of what they do. Where it can be shown that marriage legislation involves such a violation, the Courts may rightly reject it, on the grounds that the people are obliged to respect the exercise of unalienable right (that is the fulfillment of the obligation to act rightly) by individuals seeking the legal status of a married couple.
Obviously this means that before a right to marry can be understood and asserted we must understand the rightness of marriage, which is to say the connection between the activity the institution of marriage regulates and the human obligation it fulfills. The individuals forming the marriage bond formalize an existing or prospective relationship. But so do individuals who join a club, or form a business partnership or a political association. However a special purpose or intention distinguishes the bond of marriage from other contractual private associations, one that is special in the precise sense that it relates not only to the preservation of the individuals, but also of the species as a whole on which their identity as individuals partially depends.
In the debate over homosexual marriage, much is made of the emotional bond established by mutual consent. But all human friendship involves such a bond. No institution is required to regulate emotionally formed human friendships. Indeed the element of coercion involved in institutionalizing an emotional relationship in some degree contradicts the freedom of choice and action that makes real friendship such a cherished (and rare?) experience.
The institution of marriage necessarily involves an element of obligation. The individuals involved must agree to be constrained in their relationship by rules and expectations that at every moment contradict, or at the very least cast doubt on the notion that their actions are freely performed on account of the emotional tie between them. This ever present whiff of constraint is what leads some couples to shy away from marriage. They sense that it involves something inconsistent with the precious reality of the freely formed and sustained friendship that they cherish toward one another.
Yet we recognize this element of obligation and constraint as an essential feature of the marriage institution. Marriage is established in the first instance by a binding promise or vow. Though at first freely made it is thereafter supposed to constrain and command the behavior of the marriage partners. Unlike other vows of intimate, private friendship however, this one is a public commitment which places at the disposal of the marriage partners an apparatus of law and enforcement that signifies a public interest in what is up to that point a private and personal relationship. What explains this public interest? What explains the implication of legal coercion otherwise so alien to the very idea of a friendship sustained by love, freely given and received?
The answer of course is simple and has been obvious to common sense throughout human history. As a legal and public institution marriage has nothing to do with satisfying the emotional needs of the parties involved, except insofar as those needs arise from and relate to the activity of procreation. The coercive elements of marriage reflect the existence and fulfillment of obligations that naturally arise from the activity of procreation- the business of conceiving, bearing and rearing human offspring. Apart from this activity, marriage can have no justification as a legal institution distinct from other contractual human associations and activities ( such a business partnerships, professional firms and other such private enterprises.) But the public interest in this activity does not arise solely from the need to regulate consequences of procreation. It arises from the obligation of each individual, and the society as a whole, to the preservation of the human whole (the species) which any given individual or society partially represents.
Ironically, this fact explains a misunderstanding that continually bedevils the debate over homosexual marriage. It has to do with the relationship between what we imprecisely refer to as sexual activity and the marriage institution. The contemporary concept of sexual activity simply refers to physical relations that involve the pleasurable stimulation of the physical organs and senses otherwise involved in the act of procreation. Obviously once the term is applied to homosexual behavior, the actual connection with procreation is gone, and even the reference to sex becomes equivocal. (It once signified the particular syndrome of responses associated with the moments of life that most acutely and especially aroused the sensual awareness of the sexual difference. This awareness is precisely and necessarily absent from homosexual relations.)
The conceptual connection between procreation and the institution of marriage gave rise to a customary association between marriage and sexual activity. Those who intended to procreate were expected to marry. As a public institution, marriage necessarily acquired the respectability associated with institutions subject to public approbation and support. Sexual activity not connected with procreation, and therefore not conceptually connected with marriage, enjoyed no such respectability. For those who valued public respect, the conventional rule arose that sexual activity outside of marriage was not respectable. Respectable people who wanted to have sex therefore felt obliged to get married.
As is often the case with conventional wisdom, this maxim represented a misplaced kernel of truth. It preserved the element of coercion necessarily connected with the concept of marriage, but lost sight of the logical rationale for it. The necessary logical connection is not between sex and marriage, but between marriage and procreation.
Insofar as the push for homosexual marriage is part of the homosexuals' quest for public acceptance and respectability, this misunderstanding accounts for it. But because it is a misunderstanding of the marriage institution it results in what is presumably (for those sincerely seeking public respect) an unintended consequence- the conceptual annihilation of the marriage institution. This conceptual consequence will inevitably lead to calls for the abolition of legal marriage, since without the conceptual connection with procreation there is no public interest justification for its existence. By the same token, however, it destroys the rational basis for asserting that there exists an unalienable right to marry that trumps the sovereign will of the people when it comes to legislation on the subject. In my next posting we will take a more extended look at this self-contradictory result. In the process we will more fully explore the transcendent moral obligation of society as a whole that the institution of marriage is intended to fulfill. We will see how the present push for homosexual marriage denies this obligation in a way that threatens the very idea of the unalienable individual rights legitimate government exists to secure. Even more ominously, it involves disavowing the compact or covenant that is the basis for civil society as such, and so portends its moral and material dissolution.