Abstract
Does the contemporary Natural Law position that only heterosexual couples are capable of marriage rest upon an “arbitrary and irrational distinction between same-sex couples and sterile heterosexual couples?” Anderson (Ethical Theory and Moral Practice 16 (4):759–775, 2013: 759). There are many who think so. In a recent article in these pages, Erik Anderson offers his case that these critics are correct. In what follows I examine Anderson’s argument and conclude that, whether or not one ultimately agrees with the New Natural Law account of marriage, the distinction found there between same sex couples and sterile heterosexual couples is neither arbitrary nor irrational.
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Notes
I will follow Anderson’s practice and refer to these contemporary Natural Law proponents—John Finnis, Germain Grisez, Joseph Boyle, and Robert George, among others—as NNLs (new natural lawyers) and to their moral theory as NNL.
Girgis, Anderson, and George explain, “…[I]t is a remarkable fact that there is one respect in which this highest kind of bodily unity is possible between two individuals, one function for which a mate really does complete us: sexual reproduction. In coitus, and there alone, a man and a woman’s bodies participate by virtue of their sexual complementarity in a coordination that has the biological purpose of reproduction—a function that neither can perform alone. Their coordinated action is, biologically, the first step (the behavioral part) of the reproductive process. By engaging in it, they are united, and do not merely touch, much as one’s heart, lungs, and other organs are united: by coordinating together a biological good of the whole that they form together. Here, the whole is the couple; the single biological good, their reproduction” (Girgis et al. 2012: 26).
see, e.g., Koppelman 1997.
The qualification “fairly” comes with Anderson’s “as suited to” formulation in mind. Some may find Anderson overstating here the NNL position that the intercourse of a fertile couple and that of an infertile couple are similar in kind and, together, are different in kind from anything homosexual couples are capable of.
Anderson 2013: 774
This phrase is introduced on p.767 of his article and used repeatedly thereafter.
One may question whether the wolves–poisoned or not–ever engage in acts of hunting, properly speaking, or whether they are simply engaging in instinctive hunting behavior. Whichever position one takes on this issue, the question to consider here is whether the poisoned pack, doomed to failure, can meaningfully be said to be engaged in acts (or behaviors) of a hunting kind. While the NNLs understand and accept the act-behavior distinction—they do speak of the “marital act” as well as “the behavioral part of the reproductive process (coitus)”—this distinction is not relevant to the part of their argument being considered here. The claim under consideration here is that sterile heterosexual couples can, and homosexual couples cannot, engage in acts of a reproductive kind, understood here as the behavioral part of the reproductive process. (Girgis, Anderson, George 2012: 26, 74–75). See, too, Girgis, Anderson, George 2013.
The goal, stipulated by Koppleman, is increasing the likelihood of the patient’s survival.
One may (as an anonymous referee has) point to the future-oriented nature of medical training and claim that a surgeon who will never again perform surgery (say, because he is suffering from Parkinson’s disease) but who nevertheless “works on” a corpse cannot be said to be performing acts of a medical kind. Unlike the medical student, it may be argued, this (former) surgeon is not honing his skills for future use on real patients and so the intelligible connection to medical acts found in the medical students’ work on a corpse is not present here. And since this is true of the surgeon, then it is likewise true, mutatis mutandis, of the permanently infertile heterosexual couple; in neither case do we find the appropriate act of an X-kind since there is no connection to, nor derivative intelligibility from, acts of X-ing. This objection, however, does not withstand scrutiny. That the surgeon in such a case is indeed performing acts of a medical kind could be ascertained by asking him why he is choosing to work on the cadaver, carefully and precisely, instead of, say, playing shuffleboard. If he were to respond with something like “to see if I can still do it,” then one would see that the cadaver “surgery” has an intelligibility and meaning that (i) is related to real surgery, and (ii) that his other options, like shuffleboard, lack. This is so despite the fact that he will never engage in surgery again. Here, his acts are manifestly acts of a surgical kind. A similar case could be constructed for a permanently grounded pilot, also suffering from Parkinson’s disease, continuing to work in a flight simulator. Why, one may wonder, does he do that instead of plant a garden? Again, his answer may point to a derivative intelligibility in the former option that is not present in the latter. That intelligibility would seem sufficient to count his act as an act of a piloting kind. That is why it is chosen. The choices in these two cases are either arbitrary and baffling, or they are understandable because of something intelligible in the acts being performed. The obvious answer, it seems to me, is the latter.
Note that this is the case even if the man knows the lake has no fish. Imagine him simply trying out some new tackle, casting and retrieving over and over again as he tries to become familiar with his new equipment, knowing all along that the lake is sterile. Much, if not all, of what he does is just what he would do if there were fish in the lake and he were trying to catch them. Now it may be interesting to investigate whether one can be fishing without knowing one is doing so, or whether one can be fishing while knowing that success is impossible, but neither of these questions is the question at hand. The question at hand is, “Can one be engaged in acts of a fishing kind without being engaged in acts of fishing? Is such a distinction sensible?” Affirmative answers to these two questions allow one to distinguish between what a fisherman trying to catch fish is doing, and what that same fisherman is doing when practicing his craft on a body of water which he knows holds no fish. In contrast, negative answers to these questions leave inexplicable the actions of this practicing fisherman. Indeed, what precisely is he doing if not engaging in acts of a fishing kind? In this way, then, it seems quite reasonable and grounded in reality to claim that one can be engaging in an act of an X-kind even if one is not X-ing.
Or acts of reproduction/reproducing, or acts of procreation/procreating, etc. Whatever one’s preferred formulation for specifying acts of X-ing in this context, the claim being defended is clear.
References
Anderson E (2013) A defense of the ‘sterility objection’ to the new natural lawyers’ argument against same-sex marriage. Ethical Theory Moral Pract 16(4):759–775
Finnis J (1997) Law, morality, and sexual orientation. In: Corvino J (ed) Same sex: debating the ethics, science, and culture of homosexuality. Rowman and Littlefield, Lanham, pp 31–43
Girgis S, Anderson R, George R (2012) What is marriage? Encounter Books, New York
Girgis S, Anderson R, George R (2013) What makes a marriage? Love, sex, or comprehensive union <http://www.thepublicdiscourse.com/2013/12/11634/>. (Accessed 3/18/14)
Koppelman A (1997) Is marriage inherently heterosexual? Am J Jurisprud 42:62–70
Koppleman A (2010) Koppleman vs. George on same-sex marriage http://balkin.blogspot.com/2010/02/koppelman-vs-george-on-same-sex.html. Accessed 1/6/2014)
Lee P, George R (2008a) Body-self dualism in contemporary ethics and politics. Cambridge University Press, Cambridge
Lee P, George R (2008b) What male–female complementarity makes possible: marriage as a two-in-one-flesh union. Theol Stud 69:641–662
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Tully, P.A. Arbitrariness, Irrationality, and the Sterility Objection: A Reply to Anderson. Ethic Theory Moral Prac 18, 135–144 (2015). https://doi.org/10.1007/s10677-014-9513-0
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DOI: https://doi.org/10.1007/s10677-014-9513-0