In their dissenting opinions in Obergefell v. Hodges, Justices Roberts and Scalia lamented the way in which the Supreme Court’s ruling would close off public debate about same-sex marriage.
That debate, though, has been increasingly lopsided and narrow. It is increasingly lopsided because public opinion has moved dramatically in favor of legal recognition of same-sex marriages in recent history. It is increasingly narrow because, at least in the case of Christian discourse, opposition to same-sex marriage has abandoned Biblical argumentation and relied more exclusively on natural law arguments.
The American Family Association increasingly appeals to “natural marriage,” rather than “biblical marriage” in its attempts to stem the tides of sin and relativism. The Republican Party’s 2016 platform praises “natural marriage” and never appeals to the Bible in its opposition to marriage equality. And today the most influential scholarly arguments against same-sex marriage also come from natural law thinkers, such as Sherif Girgis, Ryan T. Anderson, Robert P. George, not from scholars who rely on biblical texts.
How to explain this phenomenon? Perhaps opponents of gay marriage believe Biblical arguments have little traction in a pluralistic society. Perhaps they have been persuaded that the biblical cases against homosexuality are unpersuasive.Or perhaps there is general embarrassment at the prospect of being associated with Westboro Baptist Church’s protestors and their lewd signs invoking Leviticus.
Whatever the causes, Christians’ shift toward natural law argumentation calls for deeper consideration. It is not at all clear to me that the natural law must lead one to oppose legal recognition of same-sex marriage. In fact, I want to suggest that the basic premises of the natural law can lead us to endorse same-sex marriage as a matter of legal policy.
The public debate Roberts and Scalia sought to protect is not as vibrant as they presumed in part because the natural law is the last vestige of Christian opposition to marriage equality. And even this last remaining source of opposition cannot ultimately provide stable intellectual grounding against same-sex unions.
Natural law cases against same-sex marriage frequently have at their core high regard for the nuclear family as both an institution that allows for the full flourishing of individuals and also a foundation for a functional society. Let’s accept that idea, and also the basic natural law concept that rational reflection on the natural order of creation yields a network of moral norms with which human beings can and should align their behavior.
Even accepting those premises, it is not clear that one must oppose the legal recognition of same-sex marriage, because it is not “homosexuality” that threatens to destroy families, but rather “homophobia” that does so. I follow the meaning of “homophobia” Dale Martin offers in Sex and the Single Savior. By “homophobia,” I mean “the loathing of homosexuality that arises from a deep-seated…fear of homosexuality.”(61)
This fear of homosexuality destroys families by causing conflict between parents and children. Nuclear families are torn apart when children realize that they have same-sex attractions or that they deviate from commonly-accepted standards of masculinity and femininity in any way. Realizing this, children face the terrible decision: they can either keep their secrets to themselves, or they can reveal them to parents who may condemn them. Indeed, many parents do condemn and ostracize children who fail to live up to social norms surrounding sex and gender.
Vast literature exists about how to “come out” to parents, how parents can overcome fear, grief, and anger conjured by encountering a child’s homosexuality, and how parents can move to greater acceptance of their gay children. (cf. Carolyn Griffin et. al. in Beyond Acceptance and Robert Berstein at. al. in Straight Parents, Gay Children). All of this literature is a testament to the terrible fact that fear and hatred of homosexuality destroy familial bonds by estranging gay kids from their parents. This phenomenon ought to be of great concern to any natural law thinker, given that the basic premises of the natural law prioritize whole, unified, and loving nuclear families.
How would natural law thinkers advise families in the throes of such crises? What can parents and children do when faced with the threat of familial estrangement? One option is for gay children to try to change their sexual desires and identities in order to gain acceptance from homophobic parents. Typical natural law objections to homosexuality might once have counseled young people to defeat their impulses to same-sex attraction, admit that opposite-sex attraction is the norm for all humans, and simply live in accordance with that norm. But this option has been widely discredited.
Evidence suggests that trying to change same-sex desire is not effective, and may even be harmful. The dissolution of Exodus International, one of the leading Christian groups dedicated to helping people pray the gay away is a strong indicator that this tactic is rightly on the wane. John Paulk, one of the leaders of Exodus International, addressed the damage this approach causes in a statement explaining the group’s disunion. The statement read, in part:
Today, I do not consider myself “ex-gay” and I no longer support or promote the movement. Please allow me to be clear: I do not believe that reparative therapy changes sexual orientation; in fact, it does great harm to many people…From the bottom of my heart I wish I could take back my words and actions that caused anger, depression, guilt and hopelessness. In their place I want to extend love, hope, tenderness, joy and the truth that gay people are loved by God.
We should heed Paulk’s reversal on the possibilities of changing homosexual desire to align more closely with opposite-sex attraction. Social scientific research and trustworthy human experiences, two sources that natural law thinking can accommodate, are increasingly leading us to the conclusion that familial estrangement caused by homophobia cannot be solved by forcing kids to conform to hetero-normative social custom.
Another option for gay kids who have been ostracized by their parents is simply to sever ties with their families. They can live with alienation from their parents by moving away from them, avoiding discussions of their sexuality, and/or cutting off contact altogether. Sadly, this is a common way of dealing with familial rifts created by homophobia. Literature on homosexuality abounds with stories in which parents and children live with some level of alienation following a child’s decision to come out of the closet.
The phenomenon of familial estrangement following a “coming out” moment should be troubling to all natural law thinkers, in light of the basic commitment to the importance of the nuclear family for individual flourishing and social functioning. And yet, I have never read a natural law case against this sad reality. Most natural law engagements of homosexuality purport to “defend the family” by arguing that same-sex partnerships cannot sustain this institution, without noticing that parental homophobia bears significant blame for destroying families.
A third option for healing familial estrangement is for parents to accept their gay children without condemning same-sex attraction as such. This means letting go of a moral vision of homosexuality as sinful and disordered. It means letting go of the idea that the best way to relate to one’s gay child is to “love the sinner and hate the sin.” It also means supporting children in their encounters with homophobia in society at large. Parents of gay and lesbian children who initially rejected their children’s sexual identity report that acceptance is the most effective way to reunite families torn apart by this revelation.
In their book What is Marriage? Man and Woman: A Defense, Girgis, Anderson, and George attempt to develop a natural law case against same-sex marriage that does not denounce same-sex relationships as such. They try to argue that they have no moral objection to homosexuality. They claim a natural law position that ostensibly accepts same-sex attraction and relationship, while at the same time denying the legitimacy of same-sex marriage.
Same-sex relationships can be valuable, they say, in the same way that friendships can be valuable. Such an admission apparently qualifies as acceptance. The problem with their argument, though, is that they cannot both accept same-sex attraction and relationships while also denying the legal right for people in such relationships to marry. Despite the fact that they want to appear “accepting,” the moral reality, for Girgis, Anderson, and George, is that same-sex love is inferior to heterosexual love for the purposes of sustaining families and society. As natural law thinkers, they base this judgment on the possibility of procreation.
Heterosexual couples can engage in coitus, while homosexual couples cannot. Coitus is supremely important for our society, given its role in producing offspring. Because homosexual couples cannot engage in coitus, their love and relationships cannot be classified as “marriage.” Thus, Girgis, Anderson, and George undermine their posture of acceptance by writing that homosexual partners “merely touch or interlock” (25-26, 36).
Denigrating same-sex activity in this way reaffirms the idea that homosexual love is inferior to heterosexual love. Add to this denigration the condescending argument that same-sex partners should think of themselves only as “friends,” and the conclusion that these partners should not be given the right to marry, and it becomes clear that, protestations aside, the authors view homosexuality as inherently inferior. However much Girgis, Anderson, and George want to develop an “accepting” natural law account of sexuality, their arguments still constitute homophobia.
How would Girgis, Anderson, and George have a parent respond to a child who summons the strength to come out of the closet? If such a parent responded by saying, “You can still form valuable bonds of friendship!” or “Your bodily touching and interlocking may fall short of coitus, but I’m sure it can be pleasurable!” a reasonable person would conclude that this response is not fully accepting. Full acceptance would, at the very least, regard same-sex love as equally valuable and fulfilling as its heterosexual counterpart.
One would think that natural law ethicists would welcome such acceptance, as it promises to reunite estranged families, and whole, loving families are—at least ostensibly—of great value to natural law theorists. And yet, one looks in vain for such theorists to advocate parental acceptance of gay kids in the interests of keeping families together. Natural law thinkers may not want to admit that accepting homosexual kids is better for families than condemning such kids because such an admission would lead to major revisions of basic natural law ideas about human sexuality. Recognizing that we may have been wrong in discerning the natural order of human sexuality can be a difficult thing to do.
Of course, a natural law case for moral acceptance of homosexuality in the interests of keeping families united has strong implications for our thinking about the positive law. Specifically, the civic laws in states affected by the Supreme Court ruling in Obergefell v. Hodges become relevant.
Based on this natural law argument that families can be repaired by accepting rather than condemning homosexuality, natural law thinkers should welcome the Supreme Court ruling in Obergefell v. Hodges. This is because, consistent with a natural law account of legislation, the civic law can train us in the virtues necessary to participate well in social life, including family life. In the natural law theory of Thomas Aquinas, one of the effects of the human law is to make people good (ST I-II, 92).
On the specific question of homosexuality and familial stability that I have been addressing here, the relevant virtue is parental acceptance of a child’s same-sex attraction, toward the good end of familial reconciliation. Following the Supreme Court’s elimination of state bans on same-sex marriage, I predict that many parents will come to accept their children’s sexual identities and families will recover from estrangement.
Such virtuous acceptance should be both welcome and unsurprising to natural law theorists who already believe that human law makes us grow in virtue. The shifting rhetoric in psychiatric discourse around homosexuality may be a good predictor of the way law will influence parents’ acceptance of gay children. The American Psychiatric Association’s decision to declassify homosexuality as a mental disorder has fostered greater acceptance of same-sex attraction, especially among parents struggling with a child’s “coming out” moment.
Institutions such as the APA and the Supreme Court have enormous influence over individuals’ perception of homosexuality. Natural law theory will recognize that their definitions and rulings can and do shape us. I submit that these definitions and rulings are currently shaping us toward the virtue of acceptance and the good of familial reconciliation.
But the challenge to natural law engagements of homosexuality and same-sex marriage that I offer goes deeper than mere reflection on a specific Supreme Court ruling. On the one hand, natural law opposition (exemplified by Girgis, Anderson, and George) to same-sex marriage is based on a selective and incoherent evaluation of the nuclear family. On the other hand, though, it seems inevitable that natural law theory will have to revisit some basic commitments as it moves to greater coherence on questions of sexuality and the family.
The easiest ways for natural law theorists to achieve greater coherence on these questions will be to abandon their reverence for anatomical complementarity and to relax the ethical requirement that sexual partners intend procreation for sex to be permissible. Departing from these two positions will allow natural law thinkers not only to accept same-sex attraction and reunite families, but also to avoid awkward and unconvincing responses to questions about infertility. (For example, Girgis, Anderson, and George say that infertile heterosexual couples can still engage in coitus, which is socially beneficial, but they never consider the case of erectile dysfunction.)
Although letting go of these long-standing evaluations of anatomical complementarity and the intent to procreate may be difficult, it is not impossible with a small dose of humility. Indeed, humility is necessary for religious people who face the unsettling reality that sources like the Bible and the natural law cannot deliver specific moral norms that are timeless and universal.
Martin makes this point effectively in the context of sexuality and biblical interpretation. “We should remember,” he writes, “that Paul begins invoking Scripture only after appealing to other kinds of arguments and ‘sources’ of knowledge, including his own and the Galatians’ experiences.” (152)
Martin’s point is that we cannot read the Bible for moral guidance without already having our reading informed by our experiences and those of others. The same is true for natural law reflection: in reasoning toward moral precepts in light of what we think is the natural order of creation, we necessarily bring our experiences and those of others to bear on our reasoning processes. As we consider a wider and wider circle of experience (that is, one that includes LGBTQ+ people more than it used to), we may find that our ideas about order and our specific moral norms need revision.
Such recognition would not weaken the natural law’s moral authority. On the contrary, it would gain integrity by demonstrating enough humility to admit fallibility. The only thing natural law accounts of human sexuality have to lose is their dual status as the last holdout against marriage equality and as the last voice against the full dignity of people who do not conform to heternormative social standards.