Critical Assessment Of Theories Surrounding Same-Sex Marriage: Love, Sex, And Death

Discuss about the Love Sex and Death.

The Same sex marriage can be identified as one of the most controversial socio-political debates of the recent times. A number of civilized states have legalized it whereas various countries are lagging behind because of religious regulations and societal prejudices (Djupe et al. 2016). However, the debate of the same sex marriage has often been supported and discouraged by a number of philosophic views or theories. The version of new natural law by Finnis and George, the argument of Richard Mohr and the stand point of Claudia Card against marriage have been identified a few mostly popular arguments in this regard. Here, in this essay, the author has made a critical assessment of these theories for identifying the most successful theory. The author has summed up the assessment with identifying the most popular and successful ideology in this regard. In conclusion, the summery has been provided with an insight into the three ideologies assessed by the author.

The idea of legalization of the same sex marriage has faced a number of criticisms. From religious to ethical, the law makers have identified quite a few points of view those are nullifying the importance any step in favour of this decision. On the other hand, over the years, scholars have also provided supporting arguments in favour of the homosexual unions. The theories like the new natural law or the criticism of marriage are holding a position against the idea of legalizing the same sex marriage.

New natural law can be identified as the most common argument against the idea of same sex marriage. As mentioned by Anderson  (2013) the new natural law states that the heterosexual union is the natural selection. Moreover, the natural instinct of all animal is essentially “reproduction or procreation”. Moreover, the creative approach of the heterosexual marriage is the matter of basic good. As mentioned by Finnis (1993) the heterosexual union is “oriented toward children, but it is not extrinsically good (i.e. good because of its role in child-rearing); it is intrinsically good.”

Finnis’s version of the natural law has supported this idea. According to the authors, the state has no authority of discouraging the same sex marriage by criminalizing it. As mentioned by George (2013) the rephrase of the natural law theory by Finnis and George argues that it is important to “respecting every basic good in every act.” Hence, their ides states that one cannot act to destroy, damage, impede, violate or pursue an illusory form of basic good. As analysed by Finnis (1993) the version of the new natural law provided by them offers arguments against homosexuality as well as all form of non-marital sexual unions. As per this argument, the idea of same sex marriage restricts the marital (basic good) good. As mentioned by Contreras (2013) professor Finnis has mentioned that legalizing the same sex marriage would be an injustice. As per the thought of Finnis, legalizing the same sex marriage will disrupt the judgement that marriage is a committed and exclusive union between men and women with the aim of reproduction and providing the child a healthy familial life.

The New Natural Law Argument Against Same-Sex Marriage

However, as argued by Anderson (2013) the natural law supports the right of individual liberty. However, the scholars who are opposing the same sex marriage with the ground of natural laws are demeaning the idea of personal independence and liberty. Moreover as mentioned by Barker (2012) the idea of “basic good” is typically relative. Moreover, as argued by Becker (2012) the validity of the legal base cannot or must not be assessed with a religious view of natural law.

On the other hand, the argument rose by Richard Mohr, has supported that idea of same sex marriage. As mentioned by Gilreath and Ward (2016) the idea of restricting the same sex marriage is limiting the access of ethical legal approach by this group of people. As discussed by Barker (2012) the substantive marriage philosophy of Mohr articulates “marriage as intimacy given substance in the medium of everyday life, the day-to-day … the fused intersection of love's sanctity and necessity's demand". The theories against the decision same sex marriage is its “substantive” nature, i.e. child rearing. However, as argued by Mohr (1995) the childless marriages should also not be recognised, not because the couples pattern of sexual intimacy but the absence of the act of child rearing.  

As mentioned by Barker (2012) Mohr has supported the same sex marriage under the light of the argument that the conservative form of marriage should be reformed “to allow for the often open, communitarian nature of Gay multi-partner relationships.” Moreover, Mohr has identified that the same sex couples are substantive enough with their responsibility divisions, familial roles and explicit companionship (Gruen 2013). Hence, the idea of contravening the “nature” or the “natural good” can be declined with its substantive nature.

As argued by Mohr (1995) with the logic of the essential substantive nature of marriage, the same sex marriage cannot be criminalized.  As identified by them “the substantive marriage is neither essentially nor exclusively heterosexual” and the homosexual couples are also maintaining the substantive nature of union it its various ways. Hence, as argued by Barker (2012) denial of recognition of same sex marriage is therefore irrational and unjustified.

On the other hand, the professor of philosophy in the university of Wisconsin-Madison, Claudia Card has ignored the importance of legalizing the same sex marriage by criticising “marriage” itself. As mentioned by her, the legalization of marriage provides a legal right of “the persons, property, and lives” of the spouses to each other which makes both of them vulnerable to “torture, rape, battery, stalking, mayhem, or murder” (Card1996). As argued by Weston (2013) Card has rightly identified that the legalization of marriage promotes “state support for conditions conducive to murder and mayhem.”

The Mohr Argument Supporting Same-Sex Marriage

The major idea that the critics of same sex marriage in the light of Claudia’s argument is the legal approach of marriage will disrupt the sense of equality in the same sex unions. As argued by Rosenlee (2014) for the gay couples, “marriage” can be a dangerous idea, as it hols a “patriarchal and heteroarchical foundations”. On the other hand, as mentioned by Claudia, the legal access of the “Person” of the partner is more likely to make them vulnerable to physical abuse (Tietjens Meyers 2016).

On the other hand, for the lesbian couples, Card has identified the idea of legalizing the same sex marriages will create the obligation for them to have a monogamist union, mainly in the United States (Card1996). As argued by Tietjens Meyers (2016) Card has opined that the legalization of same sex marriage will bring to peace or benefit to the lesbian or gay couples, rather it will complicate their union with a number of complex regulations.

As mentioned by Weston (2013) Claudia Card’s stand against the same sex marriage has actually stemmed out of the idea of eliminating marriage itself. As mentioned by Rosenlee (2014) the states and the legal regulations have made the marriage a political union. The benefits a couple can get through marriage like financial security, tax benefits or inheritance make the union a contact than a loving sacrament. As mentioned by Tietjens Meyers (2016) Card has never denied the injustice in the denial of the legal rights of marriage for the lesbians or gay couples. However, she has questioned the behind supporting the potentiality of loss of freedom and justice through any kind of marriage with its dominating, heterosexual ideologies.

Now, as mentioned by Djupe et al. (2016) among the above-discussed three, the most popular argument is the new natural law argument against the legalization of same sex marriage. As mentioned by Becker (2012) this argument has got the religious support that can be identified as the strongest hold for this ideology. As argued by the supporters of the new natural law the same sex marriage is against the god set norms and it is contrary to the natural law and procreative objective of society (Djupe et al. 2016). Thus, the new natural law has got the support of the religious ideologies which craftily collects the support of the society. The lack of procreative or the reproductive nature is the most natural instinct of all animals. However, the nature of the same sex marriage contravenes this “basic good”. Now, as per the new natural law, supporting any act that restricts the potentiality of a “good act” is unethical. Thus, this argument has got a conservative ethical approach.

Thus by integrating a religious, societal and ethical perspective, the new natural law has become the most successful and popular arguments among all of the three.

Conclusion:

In conclusion, it can be said that the arguments against the same sex marriage can have their own grounds. The new natural law has identified the contravening nature of the natural instincts of human beings, whereas the substantive marriage approach has denied the logic of lack of procreative nature of the same sex marriage. The first one has advocated the criminalization of same sex marriage whereas the latter one has supported its legalization. However, the argument upheld by Claudia Card has denied the legalized value of any form of marriage as identifying it pro-abusive, dominant and contrary to the freedom of the individuals.

References:

Anderson, E.A., 2013. A defense of the ‘sterility objection’to the new natural lawyers’ argument against same-sex marriage. Ethical theory and moral practice, 16(4), pp.759-775.

Barker, N., 2012. Arguments for Same-Sex Marriage. In Not The Marrying Kind (pp. 93-128). Macmillan Education UK.

Becker, A.B., 2012. Determinants of public support for same-sex marriage: Generational cohorts, social contact, and shifting attitudes. International Journal of Public Opinion Research, 24(4), pp.524-533.

Card, C., 1996. Against marriage and motherhood. Hypatia, 11(3), pp.1-23.

Contreras, F.J., 2013. Is the “New Natural Law Theory” Actually a Natural Law Theory?. In The Threads of Natural Law (pp. 179-189). Springer Netherlands.

Djupe, P.A., Lewis, A.R. and Jelen, T.G., 2016. Rights, Reflection, and Reciprocity: Implications of the Same-Sex Marriage Debate for Tolerance and the Political Process. Politics and Religion, 9(03), pp.630-648.

Finnis, J.M., 1993. Law, morality, and sexual orientation. Notre Dame L. Rev., 69, p.1049.

George, R.P. ed., 2013. Reason, morality, and law: the philosophy of John Finnis. OUP Oxford.

Gilreath, S. and Ward, A., 2016. Same-Sex Marriage, Religious Accommodation, and the Race Analogy. Wake Forest Univ. Legal Studies Paper Forthcoming.

Gruen, L. ed., 2013. Sex, morality, and the law. Routledge.

Mohr, R.D., 1995. Case for Gay Marriage. The Notre Dame JL Ethics & Pub. Pol'y, 9, p.215.

Rosenlee, L.H.L., 2014. Review of “Oppression and Moral Agency: Essays in Honor of Claudia Card”. Journal of Chinese Philosophy, 41(1-2), pp.199-206.

Tietjens Meyers, D., 2016. Surviving Evils and the Problem of Agency: An Essay Inspired by the Work of Claudia Card. Metaphilosophy, 47(4-5), pp.539-557.

Weston, K., 2013. Families we choose: Lesbians, gays, kinship. Columbia University Press.