Why the State Must Oppose Same-Sex “Marriage”: Professor

Fri Jun 19, 2009 - 12:15 pm EST

By Peter J. Smith

PRINCETON, New Jersey, June 19, 2009 ( – “Why is there an institution called ‘marriage’ at all in a secular society?”

That is the question that David Novak, a Professor of the Study of Religion and Professor of Philosophy at the University of Toronto, poses in an article published online through the Witherspoon Institute. Novak states that unless civil society understands why same-sex “marriage” is not true marriage, it risks losing marriage as an institution altogether.

Novak proceeds to explain that unlike public schools, which are “political” institutions created by the state, marriage is actually a “pre-political” institution, which the state has inherited, that has reasons of its own which first need to be explored, rather than redefined.

“The most the state can honestly do to an institution that predates its founding” writes Novak, “is to refine and reformulate the original reasons why this institution has deserved and still deserves social recognition and support.”

Rather than argue from the authority of tradition, Novak proceeds to explain that the tradition of marriage as the union of a man and a woman “has good reasons for being limited to heterosexual couples” to the exclusion of other sexual arrangements.

Novak proceeds to point out that traditional marriage can be seen through two key aspects: the “expressive aspect” and the “procreative aspect.” The first aspect involves what philosopher Martha Nussbaum says includes “sexual relations,” “friendship and companionship,” “love,” “conversation,” and “mutual responsibility.” The second aspect includes “procreation and child-rearing.”

The procreative aspect of marriage—starting and maintaining a family—is something publicly significant and certifiable. As such, it is and should be governed by the laws of the state,” writes Novak.

“But the expressive aspects are the private reasons for marriage, which should not be governed by the laws of the state, however necessary they might be for the private happiness that makes getting married and staying married personally desirable,” Novak continues.

Novak says that the state has a legitimate concern “with marriage’s public effects, not its private affects,” because without children and their proper raising by their parents, the state cannot survive or retain its national character. , not its private ” because without children and their proper raising by their parents, the state cannot survive or retain its national character.

However Novak then proceeds to raise and address one of the common objections to limiting marriage to heterosexuals: would not procreation as marriage’s “sole public reason” then exclude infertile heterosexual couples too? Novak responds with the old legal adage, “de minimis non curat lex” which he says loosely translates, “The law is only made for what usually obtains.”

“The fact is, the overwhelming number of people who marry are fertile and are of an age to be fertile. And how could we reasonably establish a criterion to determine who is fertile and who isn’t?” said Novak, pointing out again that the law must strive for the common good, but its validity does not depend on every individual achieving his or her private good.

Other objections he raises: what about homosexual couples fulfilling the public reason of procreation through surrogacy, artificial insemination, and homosexual adoption?

Novak points out that these desires by homosexual couples cannot trump the natural rights and “socially justified desires” of children to their own “mother and father, parenting in tandem as a married couple.” The first two, Novak says, effect from the beginning a “conspiracy” to violate “a child’s natural right to have both natural parents raise him or her.” The third, however, does not suffice, because a heterosexual union “better simulates the duty of the natural parents to this child, a duty they would not or could not exercise.”

“This, by the way, is not arguing empirically that opposite sex couples are necessarily better at raising children than same-sex couples,” Novak adds. “My arguments are based on the concepts of rights, not on the concept of utility.”

The rest of the article can be read here in its entirety at the Witherspoon Insitute’s online publication: Public Discourse: Ethics, Law and the Common Good.

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