A law is unjust only if the distinction it creates is not essentially related to a legitimate purpose of law. But whatever one holds about the morality of homosexual acts, it is clear that the state does have an interest in promoting and regulating marriage as traditionally defined, and that the sexual relationships of same-sex couples are distinct in kind from that. So, even if—contrary to fact—the state did have an interest in promoting same-sex sexual relationships, that interest would be different from the one served by promoting marriage. And so the two types of relationships or arrangements should not be lumped together. Moreover, falsely to equate the two is to obscure the nature of marriage.

What is marriage? The traditional view of marriage is: the union of a man and a woman, who have consented to share their lives, on the bodily (sexual), emotional, and spiritual levels, in the kind of community that would be fulfilled by having and raising children together.

Two points need emphasis here. First, marriage is a bodily union, as well as emotional and spiritual. For in sexual intercourse—which consummates the marital union—the spouses become biologically one: they complete each other to form a single subject of a single biological action, the kind of action that could procreate, provided conditions outside their conduct are present. This biological union (a procreative-type act) embodies their procreative-type union (provided they have consented to share their lives in that kind of union).

Second, marriage is the kind of union whose fruition is procreation. It is the kind of union that would be fulfilled by having and raising children together; the union of the spouses is embodied, prolonged, and enriched by enlarging into family. Still, marriage is not a mere means in relation to procreation, but a sharing of lives (bodily, emotionally, and spiritually) that is good in itself—and so a man and a woman who have consented to such a multi-leveled union are genuinely married, and have an intrinsically fulfilling marital union, even if it turns out they cannot procreate together.

Now of course not all agree with the traditional definition of marriage. But the point I want to make is simply this: marriage, as traditionally defined, is a distinct type of community and not an arbitrary set. Unmarried cohabitators have a different type of relationship. Alliances to raise children also are not necessarily marriages: a group of celibate religious women running an orphanage, for example, are not married. And, plainly, same-sex sexual relationships are a different kind of relationship: they cannot become biologically one, nor is their relationship of the kind that would find its fruition in conceiving, bearing, and raising children together. (True, same-sex partners can form an alliance to raise children—for example, those from a previous marriage or produced by artificial reproduction; but that alliance is not an extension or prolongation of a bodily-emotional-spiritual union already begun, as is the case in marriage.)

Now it is precisely the distinctive features of marriage that ground the state’s interest in promoting and regulating it, and that make the general strength or health of marriage a public good. First, marriage is a distinctive way in which men and women are fulfilled, an irreducible aspect of their flourishing, and one that can be easily misunderstood. And so marriage needs cultural support—and can be harmed by cultural confusion about it. Clarity within the general culture about the value and nature of marriage enables young men and women, as well as those already married, to participate more fully than they otherwise would in this distinctive good—just as a clear public understanding of health or learning assists individuals and families to participate more fully in those goods.

Second, while good in itself, and not a mere means to an extrinsic end, marriage also provides the crucial social function of encouraging parents (and potential parents) to commit to each other and to whatever children they may have. A healthy and strong marriage culture will provide the safest and healthiest environment for children. For these reasons it is in everyone’s interest for the state to promote a sound understanding of marriage, and certainly to avoid obscuring its nature.

Since a same-sex couple is unable to form the kind of union marriage is, not granting same-sex couples marriage licenses is simply a decision by the state not to engage in a confusing and harmful fiction. Marriage is a certain kind of union. Denying a marriage license—or the privileges, protections, and obligations of marriage—to those who are unable to marry is not unjust discrimination. The state denies marriage licenses to threesomes or foursomes (refraining from declaring polyamorous groups marriages) and denies marriage licenses to twelve-year-olds (requiring valid consent for a marriage). These denials are not unjust because threesomes, foursomes, and twelve-year-olds are unable to form the kind of union that marriage is. But the same is true of same-sex couples. So, just as the distinction between eighteen-year-olds and twelve-year-olds is relevant to the purpose of marriage—because the former but not the latter are actually able to form the union that is marriage—in the same way, the distinction between opposite-sex couples and same-sex couples is relevant to the purpose of the marriage laws, because the former but not the latter can actually form the kind of union that marriage is.

According to same-sex “marriage” proponents, the public interest served by marriage laws is the stability of households. For example, in striking down California’s pro-marriage constitutional amendment called Proposition 8, Judge Vaughn Walker claimed: “The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace.” Stability of households might of course be a legitimate public aim, but laws to promote that (and to provide benefits and privileges for stable households as such) are not marriage laws. Such laws, benefits, and so on, would—if applied justly—have to be given also to groups who do not have sexual relationships and groups not pledging permanence and exclusivity.

Clearly, though, same-sex “marriage” supporters want much more than certain benefits and privileges. Discussion of concrete benefits such as hospital visitation, inheritance rights, and so on, is really a side issue—such benefits could be secured by other means for individuals who need them (for example, a durable power of attorney for health care, a will, etc.). Nor—contrary to how it is usually portrayed—is the same-sex marriage proposal aimed at tolerance, since persons with same-sex attractions are already free to engage in private sexual behavior and to establish for themselves long-term romantic and sexual relationships. Rather, what proponents of same-sex “marriage” principally desire is the social affirmation and endorsement of homosexual relationships as such. Judge Walker indicated this point clearly in his Proposition 8 decision: “Plaintiffs [some same-sex couples] seek to have the state recognize their committed relationships . . . . Perry and Stier seek to be spouses; they seek the mutual obligation and honor that attend marriage.”

So, the proposal is for the state to promote something called marriage, and that marriage is to be understood in a way that will include same-sex partners. This sounds like old news. But what, on their view, is the thing called “marriage,” and why should the state promote it? What distinguishes marital unions from others, such that the state should promote them? One cannot just pronounce that these couples will now count as married; there must be something one means by “being married,” something held in common by all married couples. But the same-sex “marriage” position cannot provide a coherent account of what that something is.

If marriage is not a bodily, emotional, and spiritual union of a man and a woman, of the kind that would be fulfilled by procreation, then what makes a union marriage and why should the state support it? It is not simply a union that is formed by a wedding ceremony: that would be a circular definition. Nor is every romantic and sexual relationship a marriage, and certainly there is no point in the state promoting all such relationships. Perhaps one will say that it is a stable, committed, and exclusive romantic-sexual relationship. But how stable would a romantic-sexual relationship need to be in order to be a marriage? Suppose John and Mary have a romantic-sexual relationship while college students but plan to go their separate ways after graduation: is that stable enough to be a marriage? If not, why not?

Or suppose Joe, Jim, and Steve have a committed, stable, romantic-sexual relationship among themselves—a polyamorous relationship. On what ground can the state promote the relationship between couples, but not the relationship among Joe, Jim, and Steve? The argument here is not a slippery slope one. Rather, the point is: There must be some non-arbitrary features shared by relationships that the state promotes which make them apt for public promotion, and make it fair for the state not to promote in the same way other relationships lacking those features. Without this the distinction is invidious discrimination. The conjugal understanding of marriage has a clear answer: (a) marriage is a distinct basic human good, that needs social support and that uniquely provides important social functions; (b) marriage’s organic bodily union and inherent orientation to procreation distinguish it from other relationships similar in superficial respects to it. But the same-sex marriage proposal’s conception of marriage has no answer. In fact, its conception of marriage is actually an arbitrarily selected class, and so the enactment of this proposal would be unjust.

The problem is not solved if one adds to one’s description or definition of marriage, that it must be a permanent commitment (as Judge Margaret Marshall did in her decision striking down Massachusetts’ marriage law: “It is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage”). For it is fair to ask: why should the commitment be exclusive and permanent? The college students’ relationship (lacking permanence) and the celibate monks’ relationship (lacking exclusivity—others can join the religious order), both form households and contribute to social stability. In contrast, the conjugal understanding of marriage allows a clear answer to these questions: since marriage is a bodily and procreative-type union, and an irreducible basic good, it is non-arbitrarily distinct from other types of relationships. The promotion of this kind of relationship, for its own sake (because it is a basic good), and for the sake of children generally (since a strong marriage culture provides a safe haven for children), makes it in accord with justice to recognize, as marriage, only a relationship between a man and a woman, pledged to be permanent and exclusive. The conjugal conception of marriage is just and coherent; the same-sex marriage proponents’ conception of marriage is unjust and incoherent.

Patrick Lee is John N. and Jamie D. McAleer Professor of Bioethics at Franciscan University of Steubenville.

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The argument we advanced for man-woman marriage in Part One of this article is sometimes obscured even by proponents of conjugal marriage. It is sometimes argued that the state’s interest in marriage is simply to ensure that as many children as possible are raised in “an optimal setting,” and that this interest justifies “restricting” marriage to opposite-sex couples. But the fact that intact homes are the optimal setting for child-rearing does not by itself justify a policy of recognizing only opposite-sex partnerships as marriages. For a good end (ensuring optimal care for children) would not justify the means (excluding same-sex “marriage”) if it could be shown that the means were unjust—and denying marriage to such couples, if they were able to form a true marital partnership, would be unjust.

If this argument is advanced as the central one—rather than as a secondary confirmation—then it is misleading. For, in that case, the impression is given that the state itself has created marriage—for the extrinsic purpose of child-rearing. In fact, however, marriage is indeed naturally oriented to and fulfilled by conceiving, bearing, and raising children, but not as to an extrinsic end—and this orientation belongs to marriage independently of any action on the part of the state. In a profound sense, marriage is a “pre-political” institution, albeit one that the law and the state rightly recognize, regulate, promote, and protect.

Moreover, if advanced as the main argument, the “optimal setting” argument locates the center of debate in the wrong place. For even if it could be shown that another type of alliance (for example, two men and a woman, religiously active families, or very wealthy families) would tend to produce better child-rearing outcomes, it would not follow that these alliances were also (or alone) real marriages; and the state’s duty not to confuse true marriage with other arrangements—as we will show—would still obtain. Hence the real ground for the state’s duty to restrict marriage licenses to opposite-sex couples—who are of the age of consent, and have other relevant qualifications—is not an extrinsic goal of marriage, but the actual nature of marriage itself. While the optimal setting argument has a confirming evidential force, advancing it as the central argument diverts attention from how marriage is most centrally related to procreation: marriage is intrinsically (and not merely incidentally or instrumentally) related to procreation.

The state does have a legitimate interest in promoting and regulating marriage; indeed, it is obligated to do so. The state exists in order to promote ends that (a) serve all within that society, and (b) can effectively and appropriately be pursued by political society (unlike ends that can best be pursued only by individuals, families, or voluntary associations). Such ends constitute the public good, and clearly include defending against external attacks, preserving internal order, facilitating transportation, providing a judicial system for the fair resolution of disputes, etc. But in virtually every political society, the promotion, protection, and regulation of marriage has been understood as part of the public good. This is partly because regulating marriage, and so distinguishing between who is and who is not married, is a task the state cannot escape. For, though marriage is more than a contract, it still is one (it is more, not less, than a contract), and so the state must adjudicate some disputes about marriage, inheritance issues, child custody, and property when spouses separate. For this reason, among many others, privatization of marriage is a practical impossibility. Further, it is abundantly clear that healthy marriages provide social benefits to all.

But the most important reason that the state should protect and promote marriage—including family, which is marriage in its fullest fruition—is that it is itself an irreducible human good, a distinctive and irreplaceable way in which human persons (men, women, and children) can flourish. Hence the strength or weakness of marriage as a social institution profoundly affects the well-being of everyone in a political society.

The state can effectively and appropriately promote marriage. It does so principally by influencing the public understanding of marriage through its laws and regulations. The public understanding and appreciation of marriage—the marriage culture in a given society—greatly influences people’s capacities to participate as fully and richly as possible in this intrinsic human good. Looked at another way, by conveying a gravely distorted view of marriage, the state can weaken and even undermine its members’ capacities for full and rich participation in this important aspect of human flourishing. So, it is not only appropriate but also morally obligatory that the state promote and protect marriage.

But to do so, the state must promote real marriage, not a counterfeit. The state must not obscure the nature of marriage by equating it with other arrangements which differ essentially from marriage. Suppose the state (through its educational curricula) endorsed disinformation and sophistry—counterfeits of the pursuit of knowledge. By doing so, the state would gravely harm the moral environment by which society helps or hinders the moral development and character of its members. The state would send the message that one need not respect the good of truth, that it is normal and acceptable to subordinate one’s reasoning, in disregard for truth, to the attainment of other ends—which, of course, is just what sophistry is. In that way, the state would gravely damage the interests and violate the rights of its citizens. By the same token, by re-defining marriage so as to include same-sex partnerships, the state would convey the message that marriage, instead of being an objective interpersonal union both good in itself and intrinsically linked to procreation, is a relationship principally defined by emotional connection, the exchange of sexual pleasure, and shared housekeeping—all important but nonetheless ancillary features or entailments of genuine marriage. This would undermine the public understanding of marriage and erode respect for the genuine human good of marriage. In a misguided effort to “expand” access to marriage, the state would make it more difficult for people to enter into and live out true marriages. For marriage is the kind of human good that can be chosen and realized only by persons who have some basic understanding of what it essentially is.

What, then, of the argument advanced by Justices Walker, Marshall, and others regarding infertile heterosexual couples? It should by now be obvious how weak this argument is, that it stems from a remarkably simplistic view of how marriage could be related to procreation. The basic argument is: if marriage were intrinsically oriented to procreation, then couples who cannot procreate (the sterile or elderly) could not be married; but they can be married; therefore, etc. No reason is ever given why one should think that the first premise (the if-then proposition) is true. In fact there are numerous reasons why this proposition could be false. And there is only one reason it could be true: namely, if marriage were—either as a community or as an institution—merely instrumental in relation to procreation, a relationship created simply as a means toward an extrinsic goal. But plainly, as we have shown above, it is not. The comprehensive, multi-leveled union of husband and wife is both intrinsically good and the kind of relationship that would be naturally fulfilled by enlarging into family. Since marriage, thus understood, is good-in-itself, and not a mere means, men and women can marry even if they do not, for any number of reasons, have children.

Thus, the familiar argument rehearsed by Justices Walker and Marshall, which asks how the institution of marriage can be primarily about procreation if infertile couples are still eligible to marry, is easily answered. The answer is that the institution of marriage is not primarily about procreation as an end or goal distinct from marriage. The institution is directly about the marital communion itself, which in its fullest fruition is family; and so it is about children, but principally as members of families. True marriage can exist even where children do not come of the union, but it always remains the type of union that would naturally be fulfilled by children, were they to come. And precisely such a relationship has intrinsic value for the men and women who commit to it as spouses and live it out.


Patrick Lee is the John N. and Jamie D. McAleer Professor of Bioethics and Director of the Institute of Bioethics at Franciscan University of Steubenville. Robert P. George is McCormick Professor of Jurisprudence at Princeton University. Gerard V. Bradley is Professor of Law at the University of Notre Dame Law School.

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Those who support defining marriage in such a way as to include same-sex partnerships deny that marriage has any intrinsic relation to procreation. When striking down Proposition 8 (which re-established conjugal marriage under California law after it had been invalidated by that state’s supreme court), Judge Vaughn Walker curtly argued: “Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse.” The same argument was advanced earlier by Chief Justice Margaret Marshall in her majority opinion in Goodridge v. Department of Public Health, the ruling that struck down Massachusetts’ conjugal marriage law; replying to the contention that marriage’s primary purpose is procreation, Marshall confidently replied that:

This is incorrect…. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married.

But this argument—that since infertile couples can marry, marriage is not oriented to procreation—is radically unsound.

In this essay we will show how to answer the argument denying an intrinsic link between marriage and procreation, and we will explain why the state is obliged, for the sake of moral truth and the common good, to recognize and protect marriage as a man-woman community naturally oriented to procreation. We will show that this argument presupposes a false dichotomy regarding marriage: that it must be either (1) a mere means in relation to procreation as its extrinsic end, or (2) a partnership that, though perhaps more emotionally intense than most friendships and typically marked by the presence of sexual relations, is nonetheless like other forms of friendship inasmuch as it bears no intrinsic relationship to procreation. And we will describe a better understanding of marriage—one that is in fact historically embodied in our law and in the philosophical traditions supporting it. On this understanding, marriage is a sexual union of the type that is especially apt for, and would naturally be fulfilled by, having and rearing children together, but whose value, precisely as such a relationship, is intrinsic (as an irreducible aspect of integral human fulfillment) and not merely instrumental (as it would be if marriage were properly understood as only a means to procreation and the rearing of children).

The key is to understand the specific type of community marriage actually is—in particular, how it is bodily, sexual, and of a type that would naturally be fulfilled by procreation. In every society, we find something like the following type of relationship: men and women committed to sharing their lives together, on the bodily, emotional, and spiritual levels of their being, in the kind of community that would be fulfilled by procreating and rearing children together. That such a distinctive type of community—marriage—does exist in every society is undeniable. There are, of course other relationships similar in some ways to marriage. For example, men and women may cohabit, regularly have sex together, and view the possibility of having children as a possibly attractive optional “extra,” or perhaps instead as a burden to be avoided. Or, by contrast, two or more individuals may form an alliance for the sake of bringing up children—two sisters, for example, or several celibate religious men or women. But these relationships are not marriages, and no society recognizes them as marriages. Marriage is that type of community that is both a comprehensive unity (a unity on all levels of the human person, including the bodily-sexual) and a community that would be fulfilled by procreating and rearing children together. Moreover, there is an intrinsic link between these two aspects of the community; the comprehensive (and therefore intrinsically sexual) relationship is fulfilled by, and is not merely incidental to, the procreating and rearing of children.

These points can be clarified. First, the bodily, sexual aspect of the relationship is part of and is inherently linked to the other aspects of the marital union. The sexual communion of a man and a woman establishes a real, biological union—a one-flesh union is an accurate description of it—for in this act they are biologically a single agent of a single action. Just as an individual’s different organs—heart, lungs, arteries, and so forth—perform not as isolated parts, but in a coordinated unity to carry out a single biological function of the whole individual (circulation of oxygenated blood), so too in coitus the sexual organs of the male and those of the female function in a coordinated way to carry out a biological function of the couple as a unit—mating. Hence coitus establishes a real biological union with respect to this function, although it is, of course, a limited biological union inasmuch as for various other functions (e.g., respiration, digestion, locomotion) the male and female remain fully distinct.

Now, the human body is part of the personal reality of the human being, and not an extrinsic instrument of the conscious and desiring aspect of the self. So the biological unity just described can be a truly personal unity and a part (indeed, the biological foundation) of the comprehensive, multi-leveled (biological, emotional, rational, volitional) union that marriage distinctively is. When a man and woman make a commitment to each other to share their lives on all levels of their being, in the type of community that would be fulfilled by cooperatively procreating and rearing children, then the biological unity established and renewed in sexual intercourse is the beginning or embodiment of that community we know as marriage. Unlike other forms of friendship, the marital community is structured by norms of monogamy, exclusivity, and the pledge of permanence, partly because of the intrinsic link between it and procreation. The sexual communion of spouses is the bodily component proportionate to, indeed part of, the kind of multi-leveled personal community they have consented to in marrying.

Second, such a community is extended and naturally fulfilled by procreating and rearing children together. The child is the concrete fruit and expression of their marital commitment and their love for one another; indeed, each child born of the marriage is the union of the spouses made concrete and prolonged in time. So the cooperative rearing of their children does not establish a new type of relationship, but rather deepens and naturally fulfills the relationship that they have established precisely in marrying. Rearing children is to tend to the marriage, to cultivate its fruit, to serve the good of the parents’ marriage by and through each act of service to each child. As a form of human relationship, marriage is indeed, then, intrinsically oriented to procreation—but not as a mere means in relation to an extrinsic end. The union of the spouses to one another in a relationship whose distinctive structure is what it is because of its aptness for procreation and the rearing of children is no mere instrumental good, but is rather good in itself—an intrinsic fulfillment of those united in the relationship. And it is for this reason that a marriage is and remains a marriage—a true marriage—even if procreation does not result and even if the spouses know that it will not result. With or without children, spouses are in a relationship of the type that is especially apt for procreation and would naturally be fulfilled by their having and rearing children together—their children (if they were to have children) would be embodiments of their marital communion. The marital communion of the spouses is good in itself, and as such provides a non-instrumental reason for conjugal relations, whether or not they are capable of conceiving children; but it is also naturally fulfilled when it becomes part of a larger community, the family.

Given these two points regarding the nature of marriage, it is clear why marriage is the union of sexually complementary spouses. Same-sex partners, whatever the character or intensity of their emotional bond, cannot form together the kind of union that marriage is. To marry, a couple must, in principle, be able to form a real bodily union—not just an emotional and spiritual union. Same-sex couples are unable to do this: the sexual acts that persons of the same sex can perform on each other do not make them biologically one, and so cannot establish the bodily foundation for the multi-leveled union that is marriage. And to marry, a couple must form the kind of communion that would be naturally fulfilled by conceiving and rearing children together. Same-sex couples cannot form this type of union: they (two or more) can form sexual arrangements, and can also form alliances for child-rearing, but the one relationship is distinct and not inherently linked to the other.

Also, given these points about marriage, it is easy to see that infertile opposite-sex couples can form a true marital union. They are able to fulfill the two essential conditions just mentioned for marrying. First, infertile opposite-sex couples can form a biological unit—they can mate (that is, they can perform the kind of act that results in procreation when conditions extrinsic to their conduct obtain). Second, infertile opposite-sex couples can form the kind of bodily, emotional, and spiritual union of precisely the sort that would be naturally fulfilled by procreation and rearing of children together—even though, in their case, that fulfillment is not reached.

It is sometimes objected that infertile couples cannot biologically unite, since their act is not in fact capable of procreating—they cannot (it is objected) perform an act that is procreative in kind, which is necessary for a biological union. However, no couple can directly or simply choose to procreate. The only thing any couple can directly do regarding procreation is to perform the kind of act that will lead to procreation, provided other conditions extrinsic to their conduct obtain. (Thus, children are not products of their parents’ sexual acts: rather, parents should rightly view them as gifts that supervene upon their bodily expression of love in their sexual union.) So, opposite-sex couples who are infertile can perform precisely the same kind of act that fertile couples can perform. In both cases, they fulfill the behavioral conditions of procreation. And so the sexual intercourse of an infertile couple, no less than that of a fertile couple, unites them biologically: they mate, even though, in the case of the infertile couple, procreation will not result. In each case, their sexual act can consummate or embody their marriage.

So, the state’s granting marriage licenses only to opposite-sex couples is based on the nature of marriage and does not constitute unjust discrimination. The state grants a license to do X only to someone presumptively capable of doing X. It is no more unjust discrimination to deny marriage licenses to couples of the same sex than to twelve-year olds, to those already married, or to polyamorous groups of three or more sexual partners: in each case, the license is denied simply because the individuals in question are unable to form with each other the kind of union that marriage is.

(Article continued in Part Two, “Marriage and Procreation: Avoiding Bad Arguments.”)


Patrick Lee is the John N. and Jamie D. McAleer Professor of Bioethics and Director of the Institute of Bioethics at Franciscan University of Steubenville. Robert P. George is McCormick Professor of Jurisprudence at Princeton University. Gerard V. Bradley is Professor of Law at the University of Notre Dame Law School.

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Copyright 2011 the Witherspoon Institute. All rights reserved.

Yet, last month Obama gave all the members of the President’s Council on Bioethics their walking papers. He might re-constitute the Council, but no one expects that he will—as President Bush actually did—attempt to ensure that different sides on the fundamental and controversial bioethical issues are fairly represented.

What happened to encouraging vigorous debate? Has Obama done anything to indicate that he has real interest in actually debating the issue of the inherent value of human life? He spoke glowingly of “honest, thoughtful dialogue,” but his actions on this issue reflect sheer power politics.

Obama has chosen to fund abortion overseas, clearly favors funding abortions here, and has reversed the limitations on funding of embryo-destructive stem cell research  Given these facts, it is fair to ask: what is his position on the beginning of human life and when human life has or acquires inherent dignity? What position on the beginning of human life could he possibly hold?

I can think of only six possibilities. Were he open about his position, he would have to say one of the following.

1. “I don’t care when life begins; I do not care at all about individuals that can’t be (directly) seen, that are too small, or look very different from us.”

I think this is probably his real position (as evidenced by his dismissing the question about the beginning of human life by saying that it was “above his pay grade”). But this is a mere emotional reaction and is not morally or legally sound. Just as the inherent value of a human being cannot depend on his or her race or sex, so it cannot depend on his or her size or degree of development. You and I have changed dramatically in size and appearance since we were infants. But what makes us valuable as subjects of rights has continued, and so it cannot depend on our size or degree of development.

2. “The entities killed in abortion and embryo-destructive research aren’t really human beings.”

But this answer flies in the face of science—the science of embryology. Embryology shows us that when the sperm joins with the egg, the sperm and the egg cease to be, and an entirely new and distinct organism is generated, originally the one-celled zygote. This new organism is distinct from any part of the mother or father since it actively grows in its own direction toward its own maturity. It is a whole human organism—not an isolated tissue or group of cells. It is actually already a he or a she, since sex is determined from the very beginning. It has all of the internal resources (in his or her genetic and epigenetic composition) and an active disposition, to actively develop himself or herself to the mature stage of a human organism, needing only a suitable environment and nutrition. These points show that what is generated at fertilization is a distinct, whole human organism, only at an immature stage of development.

3. “Human embryos and fetuses are human organisms, but they are not persons, that is, they do not have inherent value as subjects of rights.”

Usually the idea behind this position is that an entity must have self-consciousness or self-conscious desires in order to be a person (or an entity that has basic rights), and that unborn human beings lack self-awareness. But one problem with this is that infants also lack such self-awareness, and so this argument would justify infanticide as well as abortion. It proves too much, as most people readily see that infanticide is indeed morally wrong. Another problem is that comatose human beings do not have the immediately exercisable capacity (a capacity that can be actualized in a short time) for self-awareness either, but they are clearly subjects of rights. This fact suggests that what makes one valuable as a subject of rights is not what one can do right now, but the fundamental kind of being one is. But human embryos and fetuses are the same kind of being as you and I, only at an earlier stage of development. Like comatose human beings, they possess the basic natural capacity to shape their own lives by reason and free choice, but it will be an extended time before they exercise that natural capacity (with much external assistance in the comatose, and by natural internally directed development in the unborn). Thus, human embryos and human fetuses are subjects of rights. Each of us once was an embryo and then a fetus (and then an infant, an adolescent, and so on). And just as it would be wrong to kill you or me now, so it would have been wrong to kill us when we were infants, but also when we were fetuses or embryos.

4. “Human embryos and fetuses are human persons, but sometimes it is morally okay (and should be legally endorsed and even promoted) to do evil in order to extricate oneself from terrible burdens.”

This is the position that the end justifies means, and that a political society need not protect its weaker members against its stronger ones. But the end does not justify the means, as Obama has rightly asserted in the context of the torture issue. It would be morally wrong, for example, to kidnap a homeless person who is without family or friends and dismember him in order to use his body parts for others—using his kidneys, liver, lungs, and heart to save many others. And yet if the ends did justify the means, this choice would be perfectly acceptable. (Please note that this is basically the kind of choice—with respect to embryonic human beings—that Obama has ensured our tax dollars will now encourage.) But if the ends do not justify the means and if it is a foundational duty of the political community to protect the weak and vulnerable against the stronger, then clearly this position on unborn human life is gravely flawed.

5. “In abortion and embryo-destructive research the death of the human being is only a side effect—abortion, for example, is the removal of the unborn human being and his or her death is an unfortunate side effect.”

The problem with this position is that in most cases of abortion and in all cases of embryo-destructive research this is obviously false: the death of the unborn human being, not just his or her removal from the womb—in the vast majority of such cases—is the means chosen to obtain the ends desired in abortion or embryo-destructive research. The absence of responsibility for a child (the end intended in most abortions) is not attained if a live baby is produced. And one cannot obtain the embryo’s cells that can be cultured into embryonic stem cells (the end intended in embryo-destructive stem cell research) unless one destroys the embryonic human being. Moreover, in the few cases of abortion where the death of the unborn human being might be a side effect (say, where only avoiding the condition of pregnancy is intended), the killing is clearly unjust. The injustice is heightened since it is done by parents: both mother and father have a special responsibility to their children. (If the mother’s life is in imminent danger, then it is not the termination of the pregnancy or the baby’s death that saves her but a correction of a pathology.  And so, as is generally recognized by pro-life ethicists, in these cases the abortion is a side effect of what is directly done—such as the removal of a cancerous or toxic uterus.  Such acts need not be morally wrong, and do not fall under the definition of abortion where abortion is (or was or will be) illegal.)

6. “I am personally opposed to abortion and embryo-destructive research but I do not think the government should criminalize these practices.”

This position is logically, ethically, and legally bankrupt. The only basis for being “personally” opposed to abortion and embryo-destructive research would be that one recognizes that killing innocent human beings is wrong, and that abortion and embryo-destructive research are instances of such killing. But it is a basic ethical and political truth, and it is basic to our constitution, that a just political society must provide equal protection of the law to all human persons.

So, which is it? Does Obama just not care whether what is killed in abortion and embryo-destructive research is a human person or not? If he does care, what does he think occurs in abortion or embryo-destructive research? Each of the positions that might justify his actions has insuperable logical and/or philosophical difficulties. It is time to have some of that vigorous debate Obama claims to favor.
Patrick Lee is the John N. and Jamie D. McAleer Chair in Bioethics at Franciscan University of Steubenville and the director of the Witherspoon Institute’s Program on Bioethics and Human Dignity. He is the author, with Robert P. George, of Body-Self Dualism in Contemporary Ethics and Politics and is a contributor to Public Discourse.

Copyright 2009 the Witherspoon Institute. All rights reserved.

Others can dissect the theological and factual howlers in these essays. Here I want to correct the assumption made by Meacham and Miller that the case against same-sex “marriage” must be a Biblical one. Instead, both by faith and by reason one can see that genuine marriage must be heterosexual, that sexual acts outside of marriage are immoral, and that the state, therefore, should not declare any same-sex unions “marriages,” nor actively encourage sexual acts outside of marriage.

Consider some facts.

In every society we find the following type of community: men and women committed to sharing their lives together, in the sort of community that would be naturally fulfilled by their conceiving, bearing, and raising children together. This is marriage. That such a community does exist in every society is indisputable.

In every culture men and women are attracted to each other, wish to commit to each other in a stable relationship, and perform sexual acts that might result in children. Hence every society encourages men and women—ideally, before they perform such sexual acts—to form the sort of community that will be a suitable environment both for the flourishing of their romantic love and for the flourishing of whatever children they may produce: marriage.

Sound philosophical reflection helps us identify what is going on here. The marital communion of the spouses is both good in itself (and so not a mere means to bearing and raising children) and at the same time intrinsically fulfilled by bearing and raising children together. Genuine marriage is sexual in nature and includes a bodily union: without sexual intercourse the marriage has not been consummated, that is, completed. But this sexual relationship is intrinsically linked, indeed, fulfilled, by the procreation, bearing, and raising of children. By contrast, co-habiting same-sex couples form one relationship. If later they decide to collaborate in raising an adopted child, they form a new and distinct relationship, since there is no intrinsic link between their sexual relationship, on the one hand, and their cooperation to raise a child, on the other. Unique to marriage is the fact that the bodily, emotional, and volitional relationship between the man and the woman is intrinsically oriented to being prolonged and fulfilled by their becoming a family. It is the same community that begins between the spouses on their wedding day, and may be prolonged and enlarged by becoming a family later on.

Advocates of same-sex “marriage” often argue that since marriage is a community oriented to raising children, and same-sex couples sometimes do raise children, such couples should qualify as marriages. But if having the purpose of raising children were sufficient to qualify as marriage, then orphanages, and some groups of religious women or men, could also be labeled as “marriages,” which is absurd. Likewise, other arrangements are sometimes called “marriage,” but in reality these are different types of relationship. For example, men and women often cohabit and view children as an optional extra or as burdens to be avoided. Or two or more individuals sometimes form alliances for the sake of raising children (for example two sisters, or several celibate religious men or women). But neither of these relationships are marriages: they have distinct purposes or goals.

Other advocates of same-sex “marriage” view marriage as only an emotional relationship, and the sexual acts as extrinsic symbols of that emotional connection. Since same-sex couples can intend their sexual acts to symbolize their love or affection, these unions (they contend) qualify as marriages. But, as just noted, genuine marriage is in fact a multi-leveled relationship that encompasses the bodily, emotional, volitional, and intellectual aspects of the spouses. In genuine marriage the bodily sexual acts are part of the marital union, not just extrinsic symbols. In sexual intercourse between a man and a woman (whether married or not), a real bodily union is established. Human beings are organisms, albeit of a particular type. In most actions—digesting, sensing, walking, and so on—individual male or female organisms are complete units. However, with respect to reproduction, the male and the female are incomplete. In reproductive activity the bodily parts of the male and the bodily parts of the female participate in a single action, coitus, which is oriented to procreation (though not every act of coitus actually reproduces), so that the subject of the action is the male and the female as a unit. Sexual intercourse is a unitary action in which the male and the female complete one another, and become really biologically one, a single organism. In marital intercourse, this bodily unity is an aspect of, a constitutive part of, the couple’s more comprehensive, marital communion.

When a couple have mutually consented to marriage—the kind of union that would be fulfilled by bearing and raising children together—then the biological unity realized in their sexual intercourse embodies that community. In sexual intercourse they unite (become one) precisely in that respect in which marriage is defined and naturally fulfilled. They have consented to a communion procreative in kind, so their acts that are procreative in kind embody their communion. In that way the loving sexual intercourse of a husband and wife realizes a basic aspect of human flourishing: the good of marital union.

Given the above considerations, it is clear that the charge that the denial of same-sex “marriage” is unjust discrimination, or hateful bigotry, is a canard. In order to be genuinely married, a couple—any couple—must: (a.) commit themselves to the type of personal union that would be fulfilled by bearing and raising children together; and (b.) perform the conduct by which they become biologically one, conduct that, with the addition of conditions extrinsic to that conduct, might result in procreation (and even if those extrinsic conditions do not obtain, as in infertile couples, their act has still biologically united them). (a.) and (b.) together constitute the beginning of a marriage and are necessary for consummated marriage. Any couple who is unable to fulfill those conditions is unable to marry. Not only same-sex couples, but opposite-sex couples who are too young to form a commitment and opposite-sex couples who (because of impotence) cannot consummate their union are unable to marry.

Along these same lines, we can also understand by reason that sexual acts outside marriage—including therefore homosexual acts—are immoral. Within marriage, sexual acts embody (consummate or renew) the marriage. By contrast, in non-marital sexual acts, either the participants do not become biologically one, or they have not committed to sharing their lives in a way that can be embodied by a sexual act. People build up friendships or personal communions by pursuing together a common good. In marital intercourse the common good is their marriage, embodied (consummated or renewed) in that sexual act. But if a sexual act does not embody marriage, it does not embody any other community (sexual acts do not embody sports communities, scholarly communities, or generic friendships), and no genuine good is realized in the sexual act. (Pleasure alone cannot be the common good of their act, since pleasure is a genuine good only if it is attached to a condition or activity that is already genuinely fulfilling. Their experience of embodying union when they are not actually doing so is not a genuine good but is illusory.) Thus, in nonmarital sexual acts, the couple (or, in cases of polyamory, the group) instrumentalize their sexuality (their bodies-as-sexual) for the sake of a mere experience—either the experience of pleasure or the illusory experience of the bodily-personal union without its reality.

What does all of this mean for public policy? In a well-ordered society, the state should give legal recognition to real marriage, promote it, protect it, and privilege it over other sexual arrangements—as a good for the spouses and the children their union may form. The state has an essential interest in the health of marriage. Generally speaking, children will receive the best and most loving care if they are raised by their biological parents, who have formed a community aimed at providing the most suitable environment for any children they may help bring into being. Almost always, children can count on their mothers to care for them when they are young; the institution of marriage is dedicated to ensuring, as much as possible, that fathers also will fulfill their responsibilities to the children they help procreate, and to the mothers of their children. Furthermore, where the institution of marriage is strong, people’s sexual passions and energies—frequently difficult to control, often leading to self-centeredness and exploitation—are channeled toward intelligible goods, namely, marriage and family.

If the state declares same-sex unions to be equivalent to marriage, it will profoundly obscure the nature of marriage. In effect, it will send the message that marriage is centrally about the romantic attachment and sexual relationship of adults to each other rather than about a relationship which by its nature is oriented to and suited for becoming family. Doing that would almost certainly further weaken the institution of marriage.

These points are open for all to see, whatever faith one has, or if one has no faith at all. To pretend that only religious “fundamentalists” oppose the radical re-definition of marriage advanced by same-sex “marriage” advocates is doubly distorting: first, the biblical and theological cases are not fundamentalist; second, there are reasoned arguments that do not presuppose faith against that proposal as well.

Patrick Lee is the John N. and Jamie D. McAleer Chair in Bioethics at Franciscan University of Steubenville and the director of the Witherspoon Institute’s Program on Bioethics and Human Dignity. He is the author, with Robert P. George, of Body-Self Dualism in Contemporary Ethics and Politics and is a contributor to Public Discourse.

Copyright 2008 the Witherspoon Institute. All rights reserved.