November 22, 2004

"Marriage" and natural law

My recent response to IrishLaw about same-sex marriage has provoked a very thoughtful return response--which I'm not sure I entirely deserve given the sarcastic tone of my post.

Despite Anthony Rickey's suggestion that IL refrain from making the "much weaker" argument that marriage between a man and a woman is "some form of natural right," IrishLaw sticks to her guns:

Indeed, I could have stopped there, but I don't believe the only reason we have a right to marriage is because it's currently on the books. In other words, I don't think we'd suddenly stop having a right to marriage even if we all decided to repeal those laws tomorrow (or if the courts suddenly decided they were all unconstitutional somehow). . . . I do believe there are natural rights, which if abridged by law would be by unjust law.
[Comment on Anthony's post.] I appreciate ILs candor, and I sympathize with her clear recognition that actually arguing for the existence of natural law--let alone its precise boundaries--is a very difficult thing to do.

When the question is whether constitutional or statutory law permits or prohibits a thing, it can be very hard to persuade each other. When the question is whether there's a natural right to marriage defined as the union of one man and one woman, I think it's virtually impossible. IrishLaw may not be John Finnis, but that's not the reason her arguments fall far short of persuading me. Maybe because natural law is simply given (it's "anterior" to not only the state, but to all of human civilization), it doesn't depend on reason or empirical evidence in the same way that constitutional or statutory law does. Attempts to persuade others using these tools alone are bound to fail, because in the end, the proponent of natural law has to ask that we simply believe it. In this way, natural law is a lot like religion--both are founded on a certain amount of faith.

I don't want to say that natural law does or doesn't exist. I only want to say that if man/woman marriage is a natural right, but SSM is not, IrishLaw is unlikely to persuade me by appealing to history, tradition, and reason. For every argument that IL comes up with, someone like Fool's Blog or Heidi Bond will be able to persuade me that it doesn't compel the natural-law conclusion that IL favors.

In fact, no argument like this will ever be successful, because the conclusion ultimately depends on a leap of faith.

This might be the best reason of all for the government to get out of the "marriage" business altogether. By that I mean just drop the word entirely from the law. Use "civil unions" instead. While we are deeply divided about what "marriage" is, we are mostly in agreement that the tax code should treat people equally, that laws governing inheritance shouldn't be biased against gays, and so forth. Perhaps through some sheer stroke of good luck, we mostly agree that equal protection of some sort is the law of the land, whether because of natural law, the constitution, or statute. Fine. Let's focus on what we agree about. The government does not have to take a position on "marriage," but it can (and should) act to ensure that the laws don't systematically deprive gays (or opponents of SSM, for that matter) of equal protection.

If the only way we can do this is to lower our sights to the mundanities of the tax code and employment benefits law, and away from metaphysical questions about "marriage," then we should do this, and be satisfied.

Posted by Carey at November 22, 2004 09:14 PM