6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 1 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

Sign Up

Sign up for ourEmail Newsletter

201320122011201020092008200720062005

SUBSCRIBER LOGIN LOGIN forgot password? | register

HOME PRINT EDITION ON THE SQUARE BLOGS ADVERTISING DONATE ABOUT US STORE SUBSCRIBE

SEARCH FIRST THINGS

Summa Contra DowdMarch 29, 2013Joshua Schulz

In “Courting Cowardice,” published this week in the New York Times, MaureenDowd attacks the natural law argument that since marriage is for procreation,homosexual couples are de facto incapable of being married. She does this byoffering several counterexamples echoing those given by members of the SupremeCourt this week. She writes:

[Charles Cooper’s] argument, that marriage should be reserved forthose who procreate, is ludicrous. Sonia Sotomayor was married anddidn’t have kids. Clarence and Ginny Thomas did not have kids. ChiefJustice Roberts’s two kids are adopted. Should their marriages havebeen banned? What about George and Martha Washington? They onlyprocreated a country.

As Justice Stephen Breyer pointed out to Cooper, “Couples that aren’tgay but can’t have children get married all the time.”

Justice Elena Kagan wondered if Cooper thought couples over the ageof 55 wanting to get married should be refused licenses. Straining toamuse, Justice Antonin Scalia chimed in: “I suppose we could have aquestionnaire at the marriage desk when people come in to get themarriage — you know, ‘Are you fertile or are you not fertile?’”

Such criticisms of the natural law argument make elementary philosophicalmistakes. Suppose we agree that the purpose of an automobile is to travel. This is astatement about the essence of cars, the class of car-ish machines, and not about thepresent capability of any particular car. Dowd’s argument against the teleology ofmarriage is equivalent to someone arguing that, “well, my car won’t start—eitherbecause it broke down, or, heck, maybe because I yanked the spark plugs—so carsmust not be for traveling.” Clearly the fact that a particular car won’t start is asirrelevant to the determination of whether cars are for driving as the fact that a car isblue or red; Dowd’s argument simply confuses accidental and essentialcharacteristics of marriage.

In contrast, the natural law argument is that government has an interest inbehavior that is essentially procreative and only accidentally sterile (through age ordeliberate sterilization via contraception) and not in essentially non-procreativebehavior. Procreative behavior is governed by norms of fidelity, exclusivity, andindissolubility because it is the kind of behavior that creates children, and suchbehavior creates rights in children that are correlative with parental duties in adults.Marriage is a duty, not a privilege.

Note that this is a metaphysical argument about the teleology of marriage and not apolicy argument about “equality.” No one is disputing that the law should treat likecases equally. As others have pointed out, just as it is not discriminatory to deny

LATEST FEATURE ARCHIVE

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 2 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

3.29.2013 | 12:36am

3.29.2013 | 12:43am

blind people driver's licenses, neither is it discriminatory to deny homosexualsmarriage. Homosexual behavior is by definition sterile, and therefore incapable ofsatisfying the conditions of marriage. It cannot of itself generate the duties requiredof procreative behavior, and therefore to call it marriageable is Orwellian double-speak.

To retort that marriage is about love rather than procreation is to posit a falsedichotomy. It's obviously about both (as the Church has argued for two thousandyears, incidentally, teaching that the three ends of marriage are procreation, maritalfriendship, and mutual sanctification). If marriage were only about celebrating lovewe should be handing out trophies, or declaring more holidays like Valentine's Day,not binding people with exclusivity, fidelity, and indissolubility. Indeed, those whothink of marriage as only about love tend to argue against these duties, since theyare regretted when feelings change.

Doubt it? Look up the contributions to the conversation by Judith Stacey and DanSavage, say, as described in “Monogamy, Exclusivity, and Permanence,” arecent article on Ricochet. They want nothing to do with the usual trinity of maritalduties. Why would they? If marriage is about love and love is about anything, whatwould constitute a rational limit on such a feeling? Someone at court should beasking that question too.

Joshua Schulz is assistant professor of philosophy at DeSales University.

Become a fan of FIRST THINGS on Facebook, subscribe to FIRST THINGS via RSS, andfollow FIRST THINGS on Twitter.

COMMENTS:Alan says:I find this argument unpersuasive. First, how can one say that sexual intercourse betweenthose who cannot have children is "essentially procreative"? I may engage in the sameaction as procreative couples but, if my partner and I are above 55, there is no possibility ofconception. The action may be the same. but it is not "accidentally sterile", as post-menopausal women by nature are unable to conceive. Second, same-sex female couples areable to conceive and have children via various technologies that are now available. So tooare infertile opposite-sex couples. Yet the one case does not fulfill the idea of marriagewhile the other does? The problem may lie in the assumption that every marriage must beable to satisfy all three purposes of marriage. Even the Church does not forbid marriage tocouples physically unable to satisfy all three purposes, even when that inability is obviouson its face (e.g., post-menopausal couples). And certainly civil society is not bound by theChurch's understanding of the purposes of marriage, though--of course--the Church is alsonot bound by the state's understanding. A final thought: this is the third column in twoweeks, if my count is correct, in FIRST THINGS dealing with same-sex marriage. But themain threats to marriage in American society are located elsewhere--e.g., the levels ofcohabitation and child-bearing outside of marriage and the level of divorce. Sometimes itseems that gays are the only ones who want to get married. But, more seriously, if theChurch spends its time attacking lesser threats to marriage and ignoring greater threats,observers can rightly draw the conclusion that the impetus is not a concern with marriagebut an animus against gays and lesbians.

Lyric says:I think procreation is an important part, but not the WHOLE reason for marriage.Marriage is the matrix within which human society happens. It's a framework for male andfemale to relate to each other, to bear children, to raise families which ultimately becomesocieties, and to fulfill their roles within the society. God created man for woman andwoman for man, whether we agree with it or not. God created males one way, and womenanother, whether we like it or not. Marriage assumes that the sexes are different from eachother and that particular boundaries are required in order for those differences to bebeneficial rather than harmful.

The problem is, as our country ceases to believe in gender roles or the value of sexualmonogamy, it becomes more difficult to explain to a gay couple why they aren't entitled tothe same benefits as a married man and woman. In fact, it becomes difficult to explain whynon-sexual roommates or any other combination of two people are not entitled to the samebenefits, or why benefits exist at all. Why not eradicate the public institution of marriagealtogether, if marriage serves no special function other than to arbitrarily grant specialprivileges to (and take away some privileges from) the married?

Like 134456 109 5

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 3 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

3.29.2013 | 5:14am

3.29.2013 | 7:43am

3.29.2013 | 9:13am

3.29.2013 | 9:51am

3.29.2013 | 10:35am

3.29.2013 | 10:49am

Michael PS says:Scalia J's remark about a questionnaire really does point out the difference between same-sex and opposite-sex couples. Same-sex couples are infertile by definition (it is implicit inthe word "sex") An infertile couple may be infertile for any number of reasons - Suchindividuals may be suffering from a range of pathologies, they may be too old, or it may besimply a question of volition. Some of these conditions may appear to be irremediable,whereas others are plainly not. Besides, some conditions that, in the past, wereirremediable are now treatable and it would be a bold legislator who attempted toanticipate such advances.

Laws are made for the general case and anomalies are the price legislators pay forsimplicity and certainty

bill bannon says:Here's a problem. If something can be removed from marriage and you still have marriage,then that thing was not of the essence. That which makes up the essence cannot beremoved without the thing ceasing to exist. The marriage of Mary and Joseph was real butintended no sex or procreation. Procreation in their case was not missing by defect ofinfertility but by choice and intent which the Church does not allow to anyone after themunless I'm missing something. But their case means that procreation is not of theessence...though it is a purpose.Essence and purpose are distinct.What someone should be arguing from natural law before the court is that gay acts neverconform to the teleology of the complementary sexual members...ie the male member doesnot belong in the organ meant for waste elimination only.

David Nickol says:I don't understand why it is not discrimination against blind people to deny them driver'slicenses, since they are essentially seeing individuals and only accidentally blind. Also, theCatholic Church will not allow a man who is perpetually impotent to marry. There was amuch publicized case in which an Italian paraplegic was denied a Catholic marriage by hisbishop on the grounds that he was incapable of sexual intercourse. However, as an adultmale, he was essentially capable of intercourse but only accidentally impotent.

I think it is clearly false to say the purpose of marriage is procreation, since all sexualbeings, including human beings, have no problem procreating outside of marriage. In fact,with the current out-of-wedlock birthrate in the United States at 41% and increasing, itmay be that procreation outside of marriage will become the norm. It is nearer to the truth,I think, to say that marriage is about sexual fidelity. Or perhaps marriage is about fidelityof the woman to the man, but not about the man to the woman. At the time of theprohibition of adultery in the Ten Commandments, sexual relations between a marriedman and an unmarried woman were not considered adultery.

Church of the East member says:"Dowd’s argument simply confuses accidental and essential characteristics of cars [ormarriage]."

But perhaps the deeper point in play is not that secular culture CONFUSES the distinctionbetween essence and accident, but that it DENIES it. That is, secular culture isfundamentally nominalistic in its metaphysical presuppositions.

There is, then, no real distinction between essence and accident in the prevailing secularview. Another way of saying it is that there are no real essences, only conceptually createdones.

Once this metaphysical presupposition is in play, as it is at least tacitly for most proponentsof same-sex marriage, there is no basis for same-sex marriage opponents to make anargument regarding the nature of marriage that could possibly be persuasive to theopposition. Indeed, one can logically define marriage however one wishes, in line with thebasic definition of what constitutes nominalism.

Siger Brabant says:This essay is all right as far as it goes, but it ignores a great many complicating issues: 1.Some homosexuals have already procreated before they commit to one another. 2.Lesbians can procreate while committed exclusively to one another, by means of artificialinsemination, which is legal although not moral in the eyes of the Church. 3. Non-fertilecouples, whether heterosexual or homosexual, can adopt children, either biologicallyrelated to one spouse or not. If heterosexuals have the right to adopt or raise their partner'schild from a previous relationship, the child of one partner created via artificialinsemination or surrogacy, or through the adoption of a non-biological child, why don'thomosexual couples? Homosexual couples can be parents in just the same way that non-fertile heterosexual couples can.

Pr. Dan Biles says:To follow "Church of the East" member, the philosophy of Humpty-Dumpty hastriumphed: "When I use a word," Humpty Dumpty said, in rather a scornful tone, "itmeans just what I choose it to mean — neither more nor less." Even if we reduce the wordto nonsense.

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 4 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

3.29.2013 | 10:50am

3.29.2013 | 10:50am

3.29.2013 | 11:57am

3.29.2013 | 12:15pm

3.29.2013 | 12:19pm

What, I've been asking, is a "gay marriage"? Can such a thing exist, without reducing theword "marriage" to meaninglessness?

Jerry Beckett says:"if the Church spends its time attacking lesser threats to marriage and ignoring greaterthreats, observers can rightly draw the conclusion that the impetus is not a concern withmarriage but an animus against gays and lesbians."

On what planet is the Church "ignoring" the "levels of cohabitation and child-bearingoutside of marriage and the level of divorce"? Certainly not this one. Same-sex marriagedoes not "threaten" marriage, it seeks to redefine marriage.

Observers can draw the conclusion that the "impetus is not a concern with marriage but ananimus against gays and lesbians", but they cannot do so "rightly".

Ken Zaretzke says:The government’s compelling interest in protecting traditional marriage is procreation.

The reason Justice Kagan’s questions appear not to have been adequately answered is thatthe best-known argument against SSM, and the only one that most conservatives are awareof, has for many years (roughly since 1996) been the new natural law argument--and it’sunfortunately weak where classical natural law is strong.

To the central question (in the constitutional debate especially) of why sterile and agedopposite-sex couples have been allowed to get married while same-sex couples have not,the new natural law ultimately answers: “acts of a reproductive kind.” Nearly two years agoat an FT blog, I argued that this is equivocal--a fallacy. No one cared, and I let it drop.

The classical natural law response to the sterility dilemma is very different, and far moreconvincing. It is that all opposite-sex couples, including the sterile and aged, have anintrinsic capacity to procreate.

The new natural lawyers don’t care much for the idea of bodily capacities. It takes awayfrom the first principles of practical reason, which is their operating idea. Mostly, the ideaof bodily capacities is too fraught, in their view, with human nature. The new naturallawyers don’t deny the connection between moral norms and human nature, but they dohave an attenuated understanding of that connection as a result of their thoroughgoingacceptance of the fact/value distinction.

That’s why the new natural lawyers never talk about the capacity to procreate, and whythey regard as “instrumentalist” the claim that the purpose of marriage is procreation(however broadly you understand this purpose, and I understand it very broadly as ageneral fact presupposed by the institution of marriage). Are they right about that? No, notat all.

Jacob says:@Alan

Should our criminal codes only focus on murder, since theft isn't quite as bad?

How are Catholics not focusing on the "bigger" problems for marriage? Catholics put moretime than anyone into marriage counseling, abstinence programs, etc.These are all symptoms of the same disease and we don't fight the disease by leaving it tofester, even if it's just in a pinky toe.

Your side is pinning a lot of hopes on making people believe the lie that religious people areacting out on animus toward "gay" people simply because defending traditional marriagehappens to entail rejecting the left's attempt to redefine and expand the word.

If we were bigots we would be trying to keep them from receiving all the same benefits asstraight couples, which we're not. Homosexual couples almost never raise children and every society in history where sexualperversions, including homosexuality, have run rampant quickly dies.

You guys only have so much time left where anyone even cares if you demonize others asbigots. After the effects of our population suicide start to take hold or of importing fiftymillion immigrants because we murder all our own children, there won't be any time left towrite policy based on whose feelings are hurt and bicker about who really is the bigot.

David Nickol says:Why would it not be unjust discrimination to refuse driver's licenses to blind people? Afterall, they are by essence seeing, and only accidentally blind. By the same token, why would itnot be unjust discrimination to deny marriage to permanently impotent men, since theyare potent by nature, but only accidentally impotent.

Tim Hurley says:This argument about infertile or older couples should be turned back on proponents ofsame-sex marriage. It will turn out that no matter what the purpose is for legal recognition

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 5 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

3.29.2013 | 1:27pm

3.29.2013 | 2:04pm

3.29.2013 | 2:07pm

of marriage, we will accept that some marriages will not fulfill that purpose. Suppose theysay that the reason for legal recognition of marriage is "love and mutual support." We canrightly ask whether they intend to put the following on the application for a marriagelicense:

I ___ do ___ do not love the person I plan to marry.

(Note that if you check "do not" the application will be denied.)

I ___ do ___ do not intend to support the person I plan to marry.

(Note that if you check "do not" the application will be denied.)

NOTE FURTHER that if at any point you cease to love or support your spouse, or he or sheceases to love or support you, you must notify the Family Court so proceedings cancommence to dissolve this marriage.

The point, of course, is that the fit between the purpose for legal recognition of marriageand the circumstances of actual marriages always will be less then perfect, no matter yourunderstanding of the purpose of marriage. If that is an objection to opposite-sex marriage,it is an objection to same-sex marriage as well.

TCM says:http://www.firstthings.com/onthesquare/2012/05/marriage-not-a-right-but-an-office"Why does this Office get all the fun? Because, while all offices are equal, the Office ofMarriage—far from being “for everyone” or a simple expression of a mood subject tochange—is one of especial humility and sacrifice. The essentials of procreation residingwithin us are so powerful that unless one ardently works to prevent it, new life will come (arecent study found that 54% of abortions stem from contraception “failure”). The littlebang of sperm and ova are the microcosmic reflection of the macrocosmic big bang ofCreation; co-operating with God in the continuance of that creation means humblyaccepting—for the rest of one’s life—involvement and responsibility for specific humanbeings of varied gifts and challenges. There are no days off; if you don’t like your job, youcan’t just move away; you can’t re-staff. Parenthood contains moments of surreal blisscountered by a lifetime of work, self-abnegation, stress, and anxiety. Besides procreation,sexual tenderness in marriage brings a depth of consolation meant to balance out thefullness of that burden or—for a childless couple—the pain of longings unfulfilled."

nobody.really says:Such criticisms of the natural law argument make elementary philosophical mistakes.

To be clear, Dowd doesn’t mention “natural law” at all. She doesn’t criticize the argument,except in the sense that she doesn’t embrace it.

Suppose we agree that the purpose of an automobile is to travel. This is a statement aboutthe essence of cars, the class of car-ish machines, and not about the present capability ofany particular car.

Alternatively, suppose we agree that INANITMATE OBJECTS don’t have purposes; thatonly SENTIENT BEINGS have purposes. In Back to the Future, the protagonist McFly isable to escape bullies driving in a car, because the car has crashed, whereas McFly hadmanaged to break off a board with wheels to use as an improvised skateboard. The“purpose” (in the minds of the people who manufactured the objects in question) wasirrelevant to their abilities to provide a means of travel at that moment. Similarly, peoplewho obsess about whether the purpose of a window is to provide an egress will not survivethe next house fire.

(To be fair, people often describe the useful quality of an inanimate object as reflecting theobject’s “purpose.” E.g., “Blood’s purpose is to distribute oxygen….” I’m not averse todiscussing the useful attributes of traditional marriage.)

Rather than discussing the purpose of marriage (not a sentient being), we could discuss ourpurposes. For example, I have the purpose of supporting policies that promote healthyprocreation. And healthy child rearing. And mutual aid. I regard traditional marriage aspromoting all of these ends. I believe same-sex marriage promotes some of these ends,without impeding the ends achieved by traditional marriage. Thus I find no problem withsupporting both traditional marriage and same-sex marriage.

Greg says:I agree, Church of the East has Bingo.

You will note that proponents of SS so-called M inevitably perform a conceptual trick ofinflating some fragment of the truth at the expense of all the rest. Once one says that notallowing the blind to drive is not discriminatory, he finds himself in an argument aboutwhat is discrimination and what is not, and the initial point that it would be insane to dootherwise is left behind in the dust.

Proponents of same-sex "marriage" believe they are correct because this is the way theywant the world to be, and it has nothing to do with how the world is.

It is all about the will, what is desired, since the notion of compliance with a transcendentreality has largely left the building.

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 6 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

3.29.2013 | 3:28pm

3.29.2013 | 4:30pm

3.29.2013 | 4:57pm

3.29.2013 | 5:17pm

3.29.2013 | 5:45pm

harry says:The rejection of theism is the source of contemporary controversies associated with humansexuality. If there is no God then humanity is merely the accidental product of mindless,purposeless processes, and there is no divine plan for marriage and sexuality that placesboundaries on humanity's use of them. Would godless nature's natural law really bemorally binding? Or would it just be a matter of our finding out there are negativeconsequences to disregarding it? Without theism can there be an objective, rudimentary,agreed upon morality? Or only the “morality” imposed upon everybody else by those withthe power to do so? It seems so. The Founders, being theistic, sensibly referred to "Thelaws of Nature and Nature's God," not just "The laws of Nature,” making even vain Caesarsubject to natural law.

The contemporary rejection of theism and traditional morality is at the heart of not onlyhuman sexuality issues (abortion and same-sex marriage) but also of the modernphenomenon of godless governments destroying innocent human beings by the millionsbased merely on eugenics or economics, that seeming “right” to those with the power toimpose their “morality” on everybody else.

When will we just admit that theism makes human rights defensible and places boundarieson even Caesar's behavior, and its rejection obviously leads to the impossibility of logicallydefending human rights or bans on deviancy harmful to children (abortion, same-sexmarriage adoption rights), and has led to unprecedented governmental destruction of vastsegments of the human family. It is ironic that this happens in democracies where mostpeople believe in God. It seems believers need to be more analytical. The Adversarycertainly is.

The real issue is the rejection of theism, granting proud Caesar – mere mortal that he is –god-like “moral” authority.

patricksarsfield says:I think Justice Scalia was being somewhat sarcastic. His remark was a gentle way of sayingthat the Government would be invading the privacy of a male-female couple if it instituteda medico-legal inquiry into the fertility of such a couple. By contrast, as Michael PS notes,"same sex couples" are infertile by definition. Whether a particular male-female couple isfertile or infertile is a matter of circumstance (issues such as age, medical treatment andeven such things a Vitamin D levels can influence the fertility of a particular male-femalecouple. The State has no right to interject itself in the very private and "evolving" questionof whether a particular male-female couple is fertile or not. Ny contrast, no invasion ofprivacy is necessary to say that a 'gay couple" is inherently infertile.

As to the definition of marriage as a "right," tell that to the couple with $700,000 in taxableincome, 50% from one "partner" and 50% from the other partner. If thepartners areunmarried, they would each pay: , the two would pay

G Danneels says:I have been stuggling with the question of whether or not there are two distinct"marriages" and the problems arise mostly when the speaker or the hearer conflates thetwo. There is the "Office of marriage" which is entered into via the Chuch with all of thecalling and seriousness conveyed by the Church's understanding of both the spiritual andphysical nature of the institution. And then there is a secular understanding of "marriage"where benefits are conveyed by the state upon two people who enter into a legally bindingagreement. The latter is but a secular mimic of the former, but it is all that society has theability to control. It is all that political society can see, because it cannot see beyond thesecular to the spiritual. I wonder if we are simply seeing the final act in this split. In my opinion one step was whensociety recognized marriage where neither partner intended a permanent union. It haseveolved along with our culture to where today it is a temporary arrangement that lastsuntil one or the other finds that the relationship no longer fulfills them on a personal level.It doesn't seem like a huge leap to me to extend that to homosexual couples.But I also understand that no secular definition of marriage bears any relevance to the"Office of marriage", that physical and spiritual based union that is recognized within theChurch. So the debate to me about homosexual marriage is about the extension of thespiritually unimportant definition of secular marriage.

Aaron Rasmussen says:Question: Would a law that prohibited a woman who had had a hysterectomy fromobtaining a marriage license on grounds that she could not fulfill the teleological functionof marriage be constitutional?

If not, why? If so, why?

Ken Zaretzke says:@David Nickol,

I assume a permanently impotent man is incapable of doing the sex act, whether or not heis sterile. I believe justice allows us to deny him the right to marry, but a secular societymay not want to bite that bullet. I don't have a problem with allowing him to marry since itinvolves no fundamental redefinition of marriage. How could it? His being married doesn'teffectively deny the relevance of sexual complementarity.

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 7 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

3.29.2013 | 6:46pm

3.29.2013 | 9:28pm

3.29.2013 | 10:56pm

3.30.2013 | 12:39am

3.30.2013 | 2:17am

Common sense is why it's O.K. to deny a driver's license to a blind person--public safetyand so on. Natural law should not violate common sense. Strictly speaking, the properfunction of the eyes is to see, whether or not seeing involves driving a car. (Function andessence are obviously connected.)

There may be more to say about accident/essence in connection with your points, but thisquick response is all that occurs to me right now.

A's Letters says:The wisdom of Pope Francis may shed light on this discussion. When Argentina wasconsidering legalizing it in 2010, He opposed the legislation,calling it a "real and direanthropological throwback." In July 2010, while the law was under consideration, he wrotea letter to the Carmelite nuns in Buenos Aires in which he said:

"Let's not be naive: This is not a simple political fight; it is a destructive proposal to God'splan. This is not a mere legislative proposal (that's just its form), but a move by the fatherof lies that seeks to confuse and deceive the children of God… Let's look to St. Joseph,Mary, and the Child to ask fervently that they defend the Argentine family in thismoment... May they support, defend, and accompany us in this war of God."

Nancy D. says:Let us be honest, Marriage by its very essence is restrictive to begin with because in orderfor a couple to be married to each other , they must be able to exist in relationship ashusband and wife. Once a couple no longer exist in relationship as husband and wife, theycan no longer be married to one another. To suggest that it is unjust to not allow a fatherand daughter, mother and son, brother and sister, children, two men, two women, to bemarried to one another is absurd, and a lie from the start. Unless Science can prove thatthose with same sex attraction are nether male or female, one cannot make the claim thatmarriage consisting of a man and wife is discrimination since every man has the inherentright to choose a woman to be his wife, and every woman has the inherent right to choose aman to be her husband. This argument has to do not with the equality of men and women,but rather with condoning and affirming the equality of sexual acts and thus sexualrelationships.

dana says:From a strictly engineering and technological point of view, marriage could be pictured asan extraordinary, perhaps even supernatural, time machine moving through humangenerations imparting much of what has made our history discernable beyond the tragedyand blood. Our own individual sense of worth is often discovered in our geneology which isthe review of the marriage relationships in our family -- even the broken ones. What doesthe commandment "Though shalt not commit adultery" mean if not "Protect Marriage"? Toobserved theologians and philosophers making naive and even crude modification to thisremarkable technology with the notion that they have insight into the future impact of theirgreat wisdom is to observe the fulfilled prediction of Lewis' innovators and conditioners."To 'see through' all things is the same as not see."

bman says:I view marriage as a protective legal environment for responsible sexual procreation, childbirth, and parenting to occur.

The idea is similar to that of a fishing license. It does not require that you ever catch fish,but it establishes a protective legal environment in which you catch fish.

And so, a fishing license is for catching fish even though catching fish is not required!

By analogy, the same can be said for the public institution of marriage. It establishes aprotective legal environment for responsible sex, procreation, and parenting to occur,regardless of whether those things actually occur.

For example, if a married OS couple does not intend to procreate or is infertile, their rightto do so exclusively with each other, and none else, remains recognized by marriage law.

On the other hand, if a same sex couple was granted a marriage certificate, they wouldenter a legal environment designed to protect responsible sexual procreation between aman and woman - a legal protection they are not rationally entitled to have.

You don't put a car registration on a boat, as it were, or a boat registration on a car. If youdid, the boat would be registered to drive on public highways, and the car would beregistered to cruise on lakes and rivers, for which neither was designed.

Hence, a boat gets one kind of registration and a car gets a different kind because theirdesign entitles them to different legal privileges.

The public purpose of marriage is to manage sex and procreation between OS couples, notbetween same sex couples.

Don Roberto says:Dowd, Obama, and their ilk can even ask these questions only because they lack a moral

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 8 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

3.30.2013 | 2:26am

3.30.2013 | 7:42am

3.30.2013 | 8:15am

3.30.2013 | 8:29am

3.30.2013 | 8:32am

3.30.2013 | 8:44am

anchor. Their thinking "evolves" as their self interest changes. It is disturbing that such alarge proportion of the people in this allegedly religious country fall for this extraordinarilyanti-Christian notion. Few things are more clearly against the teaching in the Bible. Andit's hard to imagine a more degenerate and unhealthy lifestyle—even blatant materialistsought to be able to recognize this. I worked in San Francisco for many years; I have seen itfirsthand.

Chuck says:This article is a perfect example of why natural law is useless in a modern courtroom. Itproposes to respond to a real desire with obuscurantist, well, nonsense.

Michael PS says:Bill Bannon

By virtue of the matrimonial consent, each party acquires a right over the other’s body, asSt Paul says, “The wife hath not power of her own body, but the husband: and likewise alsothe husband hath not power of his own body, but the wife. [i Cor 7:4] From the moment ofthe marriage, that is, from the moment of agreement, the man has no power over his ownbody, or, in other words, his body is already his wife’s and her body is his. Therefore, this isthe moment at which they become “one flesh.”

If a couple, before marriage, agree to vow perfect and perpetual chastity, the vow does nottake away the right, but the exercise of the right and the Church has always held such amarriage to be valid.

Michael PS says:To hold water, any definition of the legal purposes of marriage must take account of thefact that the law makes special provision for marriage in extremis (CC Art 169) and even forposthumous marriage (CC Art 171). This would be unintelligible, if procreation were theprimary purpose of marriage and a posthumous marriage confers no rights on thesurviving spouse.

It does however confer incontestable inheritance rights on children of the couplepreviously born, both to the defunct and his or her ascendants; in other words, itestablishes filiation, the juridical bond between father and child, which is, in all cases, theprimary purpose of civil marriage.

Joshua Schulz says:Re: Siger Brabant

My argument suggests that heterosexual behavior generates children, whose rights implycorrelative marital duties in adults. (I don't think this minimalistic approach to marriageexhausts what marriage is, but talking about what sexual behavior requires is much moresobering than asking what it desires.) In any case, this argument doesn't entail that onecannot acquire such duties in other ways, e.g., adoption.

Joshua Schulz says:Re Ken Zaretzke

I'm not a new natural lawyer, and I reject the fact-value distinction, so I'm very interestedin hearing the full objection about equivocation regarding 'reproductive types.' I too wouldground the above argument in potentialities - see my comment re. Drivers Licenses below.Am I missing something?

Joshua Schulz says:Re: Driver's Licenses and Hysterectomies

Several people have commented on the driver's license analogy. We need to be careful tokeep the analogy clear. First, I argued that one cannot argue from the fact that a particularx is sterile to the conclusion that sex doesn't aim at procreation, as Justice Kagan andMaureen Dowd think. So too one couldn't argue from the fact that x is blind to theconclusion that eyes aren't for seeing.

Why not? Because that which lacks the potential (the active capacity) for sight–say, a rock–doesn't qualify for a driver's license per se, because sight is a necessary condition for safedriving. Some folks are potentially sighted but not actually sighted: they are blind, and thusdon't qualify for driver's licenses per accidens. Notice that the disqualification of rocks andthe blind for driver's licenses is of a different kind. Rocks are impossible drivers, while theblind are not, but only disqualified per accidens.

Analogously, the infertility of a heterosexual couple is distinct from the sterility of ahomosexual couple. The latter are impossible procreators, and so the objection to theirmarriage is absolute. The former are not impossible procreators, and any objection to theirmarriage will depend tightly on circumstances, e.g., the cause and severity of the infertility,hope for treatment now or in the future, etc. Given their intrinsic potential for procreativeactivity, objections to heterosexual marriage from infertility usually require very extremecircumstances.

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 9 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

3.30.2013 | 9:53am

3.30.2013 | 9:59am

3.30.2013 | 11:13am

3.30.2013 | 1:07pm

3.30.2013 | 3:07pm

3.30.2013 | 3:33pm

Nancy D. says:To see Christians call Christ a liar and thus deny God's Grace and Mercy, is, in fact, a GreatApostasy."Have you not heard from The Beginning, that God created them male and female, and forTHIS (there is no other) reason, a man shall leave his father and mother and be joined tohis wife and the two shall become one flesh..."

Nancy D. says:Aaron, when a man and woman are united as husband and wife, it is the one flesh union ofhusband and wife that creates a new family. A father and daughter, mother and son,brother and sister, children, two men, two women, cannot create a new family because theycannot exist in relationship as husband and wife.

bman says:Dowd->"[Charles Cooper’s] argument, that marriage should be reserved for those whoprocreate, is ludicrous. Sonia Sotomayor was married and didn’t have kids."

By Dowd's logic, if someone in the court had a registered fishing boat but never launched iton the water, then cars should be able to register as fishing boats too.

bman says:NR writes: "I have the purpose of supporting policies that promote healthy procreation.And healthy child rearing. And mutual aid. I regard traditional marriage as promoting allof these ends. I believe same-sex marriage promotes some of these ends, without impedingthe ends achieved by traditional marriage. Thus I find no problem with supporting bothtraditional marriage and same-sex marriage."---------By default, we should presume same sex marriage would harm the public purpose ofmarriage, unless proved otherwise.

The burden of proof should be on those who advocate the SSM form of "marriage," and notthe other way around.

Since your statement does not meet the burden of proof it should be rejected.

Indeed, even you should reject the "no harm" claim unless you have compelling proof for it.

The"no harm" scenario lacks compelling proof, but that is not its only problem.

At the current time, the inductive arguments for potential harm seem stronger than thosethat argue no harm.

Dutch scientists in 2004 issued a statement that said the decline in marriage there and therise in unwed childbirths there seemed connected to "the reputation of marriage" havingbeen devalued in the minds of the people by socio-legal experiments in the previousdecade. They viewed SSM as more of that same thing.

Any socio-legal experiment that would erode the core meaning of marriage in the collectiveconsciousness of society counts as potentially harmful, by default.

SSM is clearly in that category.

SSm promotes a marriage idea that is disassociated from responsible procreation.

If that marriage idea becomes the norm, the procreative purposes you ascribe to marriagewould no longer be promoted by marriage eventually.

The Dutch scientists also indicated that no solution was readily available to restoremarriage rates between men and women.

Hence, we should also presume, if SSM causes harm to the public institution of marriage, itwould cause permanent harm with no known solution to reverse it.

David Nickol says:Nancy D.,

You say: "A father and daughter, mother and son, brother and sister, . . . cannot create anew family because they cannot exist in relationship as husband and wife."

Of course they can. Suppose by accident a father had a daughter he never even knew about,or a mother had a son she gave up at birth for adoption, or a brother and sister wereseparated as infants. In each three cases, they meet later in life, fall in love, and marry. Dothey just *imagine* they are married and living in a relationship as husband and wife?Aside from genetic testing, is there any way their relationship could be detected to be otherthan that of husband and wife?

David Nickol says:

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 10 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

3.30.2013 | 4:12pm

3.30.2013 | 4:48pm

3.30.2013 | 6:04pm

3.30.2013 | 8:31pm

3.31.2013 | 8:16am

I think the analogy involving blind people and driver's licenses is inadequate. There is nolaw that I know of that says blind people may not obtain driver's licenses. However, inorder to obtain a driver's license (actually, a learner's permit), you have to pass a writtentest and an eye test. It is not only blind people who fail these tests. Requirements vary fromstate to state for adequate vision to drive (usually 20/40), but some states also havehorizontal field-of-vision requirements and one adds a vertical field-of-vision requirement.

It is not because you are blind that you cannot obtain a driver's license. It is because youcannot pass an objectively administered and scored test.

Nancy D. says:David, they would believe, by a false assumption, that they have created a new family,when in reality, they are part of the same original family.

Ken Zaretzke says:Joshua Schulz,

An act of a reproductive kind is a biological act, but is it a *physiological* thing (as an act)or a *genetic* thing (as a reproductive kind)? As I see it, the equivocation is this: one couldequally say the criterion is physiological or genetic. If it’s physiological, then sterile andaged opposite-sex couples are capable of acts of a reproductive kind but same-sex couplesare not, and so only opposite-sex couples are properly marriageable. If it’s genetic, neitheropposite-sex nor same-sex couples are capable of acts of a reproductive kind, and so either“reproductive-type act” does not help tell us what marriage is at all, or it does tell us but,unfortunately, neither sterile and aged opposite-sex nor same-sex couples fill the bill.

I didn’t quite follow your train of thought in your second paragraph, but I agree with whatyou say in the third paragraph. Here’s my longer take on the original hypos.

Intrinsic properties can be “blocked” by malfunctions. The blind man can’t function as adriver and thus isn’t discriminated against when he’s refused a driver’s license. Thepermanently impotent man can’t function in the sex act, and marriage is not reallysomething that he can coherently partake of. Still, because of sexual complementarity,allowing him to marry a woman does not reduce marriage to absurdity, even if hisparticular marriage is bound to be unfulfilling and somewhat pointless.

Paraplegics can do certain things of a sexual nature and can experience sexual desire,which makes it comprehensible why the paraplegic man can get married. Complementarityplus the experience of sexual desire--unknown to the permanently impotent man--makesthis marriage meaningful. (I’m assuming “marriageable” sex is that which bears a familyresemblance to paradigmatic sexual intercourse.)

patricksarsfield says:Somehow, my prior post was cut off where I laid out the proof that Marriage is notrewarded by the Internal Revenue Code but is instead punished to support my point thatwe should not accede to the characterization of Marriage as a state-conferred right. Here isan example showing that when people with taxable incomes of as little as $80,000 eachdare to marry one another, they pay more than they would if still single and living together.

Consider such a couple that dares to marry and earn taxable income of $160,000 dividedevenly between the two. At that level, if each were still single, each would pay: $4,991.25 +.25 ($80,000 - 36,250) = $15,928.75. Thus, they would pay a total of $31,857.50 as twosingle people living together. Because they dared get married and filed jointly, though,their tax liability on taxable income of $160,000 would be: $28,457.50 + .28 (160,000 -146,400) = $32,265.50 or $408 MORE for exercising the supposed "right" of marriage. [Inother words, had they stayed single, they would still be in the 25% bracket, but for the last$13,600 of their joint taxable income, they had to pay a 3% marriage penalty to the IRS:$13,600 X .03 = $408].

bill bannon says:Michael PS,You are saying that the Church allows Josephite marriages from day one rather than as alater choice after time has passed during a normal marriage ( the latter is myunderstanding). How does that not contradict the canon 1101 §2. "If, however, either orboth of the parties by a positive act of the will exclude marriage itself, some essentialelement of marriage, or some essential property of marriage, the party contracts invalidly."Also if one were to choose Josephite marriage before being married then one would bechoosing a near occasion of sin since only during a partially elapsed marriage would oneknow he could readily resist concupiscence with this particular person.

Kim says:"...only accidentally sterile (through age or deliberate sterilization via contraception) andnot in essentially non-procreative behavior."

How is contraception to be considered something "accidentally sterile"? I think the authorof this article meant to say "through age or natural infertily". Deliberate sterilizationthrough contraception is exactly the piece that has totally undermined the very logic of thenatural law argument for gov't to define marriage as one man-one woman. Years ago when

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 11 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

3.31.2013 | 6:40pm

4.1.2013 | 4:25am

4.1.2013 | 9:51am

4.1.2013 | 12:33pm

the laws were first formed there were very few people who got married and at the sametime deliberately sterilized themselves. Now that deliberate sterilization is so commonplace the state is issuing licenses to couples who for the most part only "accidentally" havekids! Catholic writers on this whole same sex marriage debate would have been much moreeffective if they themselves had been clear from the start about how contraceptionundermines the entire natural law argument for traditional marriage.

John Howard says:Marriages are approved and allowed to procreate, not required to. We should not approvepeople to procreate with someone of the same sex, by any method. There is no right to, butthere is a fundamental right to procreate with someone of the other sex.

It is really offensive to equate the right of a married couple to procreate together to therights of a same-sex couple. The right to procreate naturally is fundamental, and notsatisfied by being forced to use labs or third party gametes as same-sex couples are.

Michael PS says:bill bannon

Canon 1101 is not infringed, because the right is conceded and it is only the exercise of theright that is excluded by the vow. Compare the release of a debt, which destroys theobligation and a mere agreement not to sue, which leaves it intact

IThe topic was much discussed in the 12th century, as part of a debate on the rôle ofconsummation in marriage, with the Parisian school, represented by Peter Damian, Hughof St Victor and Peter Lombard arguing that marriage is constituted by consent and theBolognese school, represented by Gratian, Hincmar of Rheims and Ivo of Chartes arguingthat a marriage was incomplete until consummated. A series of decretals of Alexander IIIsettled the law in favour of the Parisian school

The Bolognese school was really confusing the perfection of a legal act with the rights andobligations that flow from that act. In the same way, sale is constituted by agreement anddelivery of the goods and payment of the price do not make it any more of a sale than it isalready.

bill bannon says:Michael PS,Can you link us to any website that shows that any such marriages existed within the lastthree centuries ( your notes on the 12th century could all be out of date for all weknow)...nor did you answer the near occasion of sin question. What male, non neurotic,desiring lifelong chastity would enter such a marriage in modern times when women arenot covered excepting Anabaptists as Mary was with a possibly much older Joseph.. and forwhat reason? As a solution to not being able to afford more children for an already marriedcouple, it seems sane...but you are not speaking of that. Aquinas held that Mary had noconcupiscence after the birth of Christ and she had no sin since conception and birth perthe Church so she is not an example for post old covenant Matrimony especially in light of ICor.7:5 which commands some coles not to forego sex too long lest satan enter thesituation.Link if you can to Josephite actual marriage events that were Josephite from the day ofMatrimony.

bman says:Alan->...how can one say that sexual intercourse between those who cannot have childrenis "essentially procreative"? I may engage in the same action as procreative couples but, ifmy partner and I are above 55, there is no possibility of conception.

Marriage policy "presumes" all opposite sex couples are fertile or potentially fertile, andpresumes the act of even "trying" to procreate should occur only within marriage.

Its true, of course, that not all OS couples are fertile, but that only proves marriage policy isbased on a presumption of fertility that is over-inclusive.

The courts have also answered that point numerous times by saying its rational for publicpolicy to have a small degree of over-inclusiveness where it helps manage public policy.

Consider, too, that sex between men and women is something the elderly can and doengage in.

Given a choice between a policy that says "sex outside of marriage is OK for men andwomen if they are infertile or elderly" and one that says, "all sex between men and womenshould occur within marriage" which one best prevents unwed childbirth in society?

Clearly, the latter.

Its also more uniform and morally cohesive to say "all sex between men and women shouldoccur within marriage" compared to saying "only fertile men and women are expected tomarry," or saying, "society expects the infertile and elderly to have sex only outside ofmarriage. "

A marriage policy that presumes fertility for all OS couples can be charged with beingrationally over-inclusive, but a policy that presumes all SS couples are fertile would be

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 12 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

4.1.2013 | 1:31pm

4.1.2013 | 2:50pm

4.1.2013 | 3:18pm

4.1.2013 | 4:41pm

4.1.2013 | 5:39pm

4.1.2013 | 6:31pm

4.2.2013 | 2:43pm

irrationally over-inclusive.

John Howard says:It's not over-inclusive if it includes all couples that are approved and allowed to procreate.That explains why we don't let siblings marry even if they are fertile, and why we letinfertile couples marry. It's super important that we don't approve of people procreatingwith someone of the same sex, and that all married couples are approved and allowed toprocreate.

Michael PS says:Bill Bannon

The most modern discussion I know is in Contemporary Moral Theology Vol. 2: MarriageQuestions. Authors, J. C. Ford, SJ & G. Kelly. Published, 1963

The learned authors follow the Parisian view on validity, but warn of the dangers inherentin Josephite marriage, the need for spiritual direction &c.

No one, to my knowledge has disputed the law, as settled by Alexander III. It simply ceasedto be a matter of controversy. I dare say such marriages have been vanishingly rare inpractice

Ken Zaretzke says:In other words, I don’t think the problem with the idea of reproductive-type acts isvagueness or ambiguity (or question-begging, which is another possibility). Like classicequivocations, this one has two possible meanings, in which one meaning is obvious orexplicit and the other is out of sight and either not noticed or deliberately ignored (perhapsconsidered trivial or secondary) by the user.

The new natural lawyers don’t say they mean physiological acts. *Reproductive kind* woldbe too obviously narrow if they did say that. They can’t say they mean the genetic(chromosome-activating) side of reproduction--that would defeat their purpose, for thereason mentioned in my other comment.

Their solution to the problem of sterile and aged opposite-sex couples being marriageable(legally and morally) depends on no one noticing the equivocation between thephysiological and the genetic. This equivocation is the result of using “reproductive-typeact” in the SSM context as opposed to its original context--contraception--where no suchproblem arises.

Also, it now appears that the reason I didn't quite follow that second paragraph is simplythat I got unnecessarily stuck on "Rocks are impossible drivers"--I fled in dismay ratherthan staying around long enough to see what was meant.

bman says:John Howard writes: "It's not over-inclusive if it includes all couples that are approved andallowed to procreate.."-----

That is an even better argument, I think.

It would be irrational for law to formally recognize a rights exists for SS couples toprocreate with each other, and none else.

Its rational, however, for law to formally recognize that all married OS couples have a rightto procreate, or a right to try to procreate, with each other and none else.

bill bannon says:Michael PS,I find them more odd than the castrati involvement of the papal states (300 years and 29Popes) till Pope Leo XIII stopped it in 1878.

John Howard says:Thanks bman. It's more than just an argument, it also needs to be the policy: all marriagesshould be approved and allowed to procreate, and no one should be allowed or approved toprocreate with someone of the same sex. It's not irrational to approve of same-sex couplesprocreating, it is just bad public policy, as it would be expensive and unethical.

Michael PS says:Bill Bannon

Curiously enough, the question of castrati and the marriage of eunuchs was the subject of aPapal Brief - Sixtus V, “Cum frequenter,” June 27, 1587, in Magnum Bullarium Romanum,IV, part 4, p. 319 It continues to have resonance for the canonical definition of maleimpotence and consummation. The brief and the range of opinions that preceded it,

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 13 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

4.2.2013 | 4:03pm

4.3.2013 | 3:59pm

4.3.2013 | 11:01pm

4.4.2013 | 12:59am

including one from Torquemada in 1455 (who actually took a liberal position), repayscareful study.

Ken Zaretzke says:The idea of an intrinsic capacity to procreate can play a role in foiling the JusticeDepartment’s strategy in *Windsor* (DOMA) as much as in *Perry* (Proposition 8).Whereas “reproductive-type act” is vulnerable to the DOJ line of attack in *Windsor*,“intrinsic capacity to procreate” neatly subverts the DOJ inversion.

The “inversion” is that DOJ’s challenge to DOMA doesn’t revolve around federalism butrather equal protection. (Matthew Franck has a perceptive piece on this at Bench Memos.)The strategy is shocking because federalism is supposed to be how to get the deciding fifthvote, that of Justice Kennedy.

For the DOJ strategy to work, the pro-SSM side must have a knockdown argument againsttraditional marriage for allowing sterile and aged opposite-sex but not same-sex couples tomarry (they are both non-procreative). If I’m right about reproductive-type acts, the DOJstrategy is brilliant but doomed.

The idea of reproductive-type acts can’t blunt the equal protection challenge on the centralmatter of aged and sterile opposite-sex couples. As it figures in the idea of a reproductive-type act, the physiological criterion is highly vulnerable to an equal protection challenge,and the genetic criterion would forbid both same-sex and opposite-sex couples to marry.

The idea of an intrinsic capacity to procreate doesn’t have either of these problems. Itneatly handles a further problem. When pro-SSMers say it only contemplates *natural*procreation and doesn’t allow for artificial-reproduction technology, the response is: Menminus wombs can’t make babies, and therefore even Frankenstein equal protection (afternatural procreation is thrown under the bus) allows only lesbians not gays to marry.

All that’s left is the laughably farfetched “gender discrimination” of Bob being allowedmarry Sue but not to marry Richard.

Ken Zaretzke says:Note that while the intrinsic capacity to procreate is a property of individuals, it ismanifested by couples. Marriage is precisely about these couples, not about individuals assuch. The uniqueness of marriage in its individual-couple dialectic is not really explainedby the idea of a reproductive-type act, whereas it is explained by idea of an intrinsiccapacity to procreate. I’m inclined to think this shows the wisdom of classical natural law.

bman says:Ken Zaretzke->The idea of reproductive-type acts can’t blunt the equal protectionchallenge on the central matter of aged and sterile opposite-sex couples.

It seems, at the very least, the act by infertile couples can rationally be called an attempt toprocreate, or classified as virtually analogous to the reproductive act in all points except fora lack of fertility.

By contrast, no act by SS couples can be classified as attempt to procreate or classified asvirtually analogous to the reproductive act in all points except for a lack of fertility.

It also seems that legalized SS "marriage" would imply the act of SS couples was viewed aspotentially procreative at law. It would make marriage law implicitly irrational it seems.

Not sure if any of that affects your overall argument, but it seems to show a significantdifference between the act of infertile OS couples and that of SS couples.

Chairm says:Ken, the ability is fertility. That ability is not intrinsic to the individual, acting alone. It istwo-sexed. The lack of the other sex is not infertility for that lack precludes the ability --fertility. Rather that lack is an intrinsic inability.

Fertility = ability.Lack of the other sex = inability.Infertility = disability of fertility -- something disables the ability.

Both fertility and infertility are two-sexed.

The lack of the other sex is one-sexed, obviously, and so can be neither fertile nor infertile(without the other sex).

I think that this is in accord with your use of the term, capacity, which has a useful andcommon meaning in this context of procreativity and in the context of your note thatmarriage is about the twosome rather than the individual.

Human procreativity inheres to the marital act -- which is long established in the annals oflegal history. For example (from "What Is Marriage?", Chapter 2, footnote 3):

[quote] In more modern usage, "consummation of marriage" is still regarded in family lawas '[t]he first post-marital act of sexual intercourse between a husband and wife." Black'sLaw Dictionary, 9th ed. (St Paul, Minn.: West, 2009), 359. [unquote]

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 14 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

4.4.2013 | 3:11pm

4.4.2013 | 9:14pm

4.4.2013 | 11:20pm

And, of course, this is the sexual basis for the marital presumption of paternity.

Ken Zaretzke says:Chairm,

I’d emphasize that the problem is not with the physiology criterion itself. I defendphysiology as the *proper* sense of sexual complementarity. Rather, the problem occurswhen physiology has a counterpart in genetics (baby-making chromosome-activation), as itdoes in the concept of reproductive-type acts. In this context but not the complementaritycontext, the physiology criterion works against homosexuals, and this does rather look likearbitrary discrimination. The appearance of discrimination is mitigated by the fact that thealternative, or the genetic criterion, isn’t exactly *for* homosexuals (not directly, anyway).However, this mitigation probably is not enough to overcome an equal protection challengeat the heightened-scrutiny level, and maybe also not at the level of rational basis-plus, orquasi-heightened scrutiny.

The Supreme Court needs a good reason why same-sex couples are treated differently thansterile and aged opposite-sex couples. My point is that this reason is to be found in the ideaof an intrinsic capacity to procreate, not in the idea of reproductive-type acts.

bman,

A fundamental distinction in metaphysics between potentiality and actuality is relevant.It’s relevant in that the capacity to procreate exists as a potentiality in individuals and anactuality in (opposite sex) couples--a division of labor that points up the deepness of therationality of traditional marriage. Another relevant distinction--between an intrinsic andan actual capacity to procreate (sterile and aged opposite-sex couples have the formercapacity but not the latter, while same-sex couples have neither)--is roughly similar todispositional versus occurrent properties or states, respectively. This shows that traditionalmarriage has both classical philosophy and modern philosophy backing it, and has nothingto fear from (bogus) claims of equal protection.

bman says:Ken Zaretzke-> " ....the capacity to procreate exists as a potentiality in individuals and anactuality in (opposite sex) couples..."

Ok, it seems that a reasonable court would have to accept that proposition.

The key question, then, is why an SSm lawyer could not still appeal to equal treatment forSS couples based on the marriage of infertile OS couples.

You seem to say that wouldn't work because, "sterile...opposite-sex couples have[potentiality] but not [actuality] while same-sex couples have neither."

Unlike the former proposition, however, this latter one seems to have some holes in it.

In the former proposition it was "individuals" that had potential without actuality, but inthe latter its a sterile OS "couple" that has potential without actuality.

I think an SSm lawyer might argue the sterility of a "couple" implies the absence ofpotential for that "couple," whether it be an OS or SS couple.

If you don't see that as probable counter argument then I may have misunderstood yourargument.

If, however, you see that as a probable counter argument to your view, how would wouldyou address it?

John Howard says:Can't we just say that ability to procreate is irrelevant? Whether it is potential or actualdoesn't matter because the capacity to procreate has nothing to do with whether we allow acouple to marry. Infertile people and old people are allowed to marry, aren't they? Andperfectly fertile siblings are not allowed to marry, right? And even if siblings are infertilethey are not allowed to marry.

We approve and allow all people to marry and to procreate, no matter whether they can orcan't or do or don't, but not with certain relationships where procreation would beunethical (or, in the case of same-sex couples, wouldn't be 'procreation' at all, butsomething more akin to human manufacture). The basic underlying fact is that people onlyhave a right to procreate with someone of the other sex, as their own sex. People don't havea right to procreate as the other sex, or with someone of the same sex. We need a federallaw to prevent labs from attempting human manufacture using stem cell derived gametesor other methods so that people born as males can only attempt to procreate with peopleborn as female. Can we agree on that? And we also need to protect marriage so that itcontinues to approve and allow and affirm the couple's right to procreate offspring. Wecan't let siblings marry or same-sex couples marry (once we enact the law limitingprocreation to male-female couples) because it would debase marriage to call couples thatare prohibited from procreating married. It would mean any marriage could be prohibitedfrom procreating, it would mean marriage didn't approve of procreating.

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 15 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

4.5.2013 | 3:08am

4.5.2013 | 4:58am

4.5.2013 | 12:21pm

4.6.2013 | 6:33am

bman says:John Howard->Can't we just say that ability to procreate is irrelevant? Whether it ispotential or actual doesn't matter because the capacity to procreate has nothing to do withwhether we allow a couple to marry.

I support the idea that marriage is an act of society or government that formally approvestwo persons can sexually procreate with each other and none else.

My exchange with Ken is not a sudden forgetfulness of that, but its an attempt tounderstand the distinction he makes between potentiality and actuality. Perhaps it can beintegrated with the ethical procreation view.

Siblings seem to pose a problem for his view since they have potential but are deniedactualization.

They have the ability to procreate but are denied marriage because that would mean theywere approved by society to procreate together. Since they are not approved to do so, theycan't marry. If "potential" was the key idea, they would be allowed to marry, but they arenot. Hence, "ethical procreation" may be the key idea instead.

On the other side of the continuum are infertile OS couples. They seem to lack potential toprocreate but they are allowed to marry because its still ethical for them to procreatetogether and none else.

Lastly, SS couples are unable to sexually procreate but it would also be unethical to permitthem to procreate with each other, and so same sex partners are not allowed to marry.

The principle of ethical procreation seem to be a consistent principle for explaining whyeach group mentioned is handled differently.

It has considerable explanatory power, as well.

Chairm says:The key here is that we are discussing types of relationships, not the particular instance ofthis or that person's relationship with another particular individual.

The prototypical sibling relationship is a nonsexual friendship. The union of husband andwife is a sexual friendship. It is a procreative type of relationship -- procreative in kind.

It is also comprehensive because it is the authentic union of minds and bodies. This is nosmall matter for this comprehensiveness also makes of husband and wife a closely relatedcouple. This comprehensiveness does not apply to the sibling type of relationship.

One can always come up with particular instances where a sibling relationship is notmanifested in a particularly close nor friendly way. Or where a particular instance ofmarriage is not an authentic union of minds and bodies. But if we had to empowergovernment to test the particular instance so as to enforce the general, and principled, rule,then, that would destroy not only marriage as a foundational social institution -- it woulddestroy civil society. All of this comes into play when discussing the legitimate purpose ofmarriage law: it certainly cannot be to obscure the marriage idea.

John Howard says:Right, it's super important to keep prohibited relationships based on type of relationship,so that they apply to everyone equally, and not start prohibiting individuals or individualrelationships from marriage/procreation rights. Eugenicists and SSMers like to complainabout how heterosexual couples don't have to pass any fitness tests before they are allowedto have kids, while they have to prove themselves fit in order to adopt children. Andsometimes people worry that my proposal to tie procreation rights to marriage will meanwe apply fitness tests and deny marriage to couples that have bad genes or are unfit orsomething, but I think that by keeping it tied to marriage, people would howl withindignation and rise up if they were prevented from marrying, much more so than if theywere prevented from procreating but still allowed to marry. They would notice whenpeople were prevented from marrying and so we'd preserve procreation rights by keepingthem essential to marriage and keeping marriage a fundamental right.

Chairm says:Ken, you might find the following of interest:

Infertility is a Disability says US Supreme Court.http://opine-editorials.blogspot.com/2012/03/infertility-is-disability-says-us.html

Disability is impairment of an ability. Ability is the capacity or means to do something.Inability is an inherent lack of power to do the thing in question.

Within the same-sex type of relationship the lack of the other sex is intrinsic and thus thelack of capacity or means to procreate is clearly inherent. The necessity of going outside thesame-sex type of relationship to involve the other sex to import the means to procreatemakes it obvious that the procreative ability is not enabled within the one-sex scenario.Fertility and infertility are extrinsic or foreign to it.

Equally obvious, the ability to procreate, and the corresponding disability, resides withinthe opposite-sex type relationship. Fertility is the ability. Infertility is the impairment or

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 16 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

4.6.2013 | 6:49am

4.6.2013 | 5:30pm

4.7.2013 | 11:40am

4.7.2013 | 6:12pm

4.8.2013 | 1:20am

disabliity of the capacity or means to procreate.

Without the other sex, fertility is neither enabled nor disabled but is precluded. Theabsence of either sex signifies a concrete inability. Procreation is neither enabled nordisabled.

Chairm says:Also:

Disability and inability and the procreative type of relationshiphttp://opine-editorials.blogspot.com/2012/03/disability-and-inability-and.html

The SSMer said she meant to compare like and like. But that did not mean comparing themale-only and the female-only subsets of the homosexual category. No, she meant adifferent compaison.

She meant to compare the non-procreative type of sexual behaviors within the entirehomosexual category and the procreative type of sexual behavior within a narrow subset ofthe heterosexual category. She was still in search of a disablity that she might claim to bethe equivalent of an inability.

In restating her comparison she sneaked in a change in word usage, as often happens insuch discussions. She assumed that all sexual behaviors that do not result in procreationmay be recategorized as non-procreative types of sexual behavior. That would bemisleading.

Ken Zaretzke says:bman,

By “intrinsic capacity” I mean actual or ideal capacity. The terms “intrinsic” and“potentiality” (not “potential”) have totally different referents. Similarly, the terms“actuality” and “actual,” in the two distinctions, are not the same thing--in one, the termmeans something that is realizable (the way matter realizes form), whereas in the other itmeans something is brought about. All opposite-sex couples have an intrinsic though notinevitably an actual or brought-about capacity to procreate.

Chairm,

“The union of husband and wife is a sexual friendship. It is a procreative type ofrelationship -- procreative in kind.”

I agree. The problem for SSM is that love plus sex doesn’t equal family. Family issuperadded to the SSM equation, while it is not superadded to the traditional marriageequation where love plus procreation equals family.

A similar problem for SSM is that love plus sex doesn’t tell us why society privilegesmarriage over cohabitation. Unlike cohabitation, marriage presupposes procreation (or,broadly, procreationality). Traditional marriage, being based on complementarity and thecapacity to procreate, does tell us why marriage is privileged over cohabitation. Althoughcohabitation involves procreation(ality), it doesn’t presuppose it in the way marriage does,and this makes all the difference. (“Presupposes” has a far stronger meaning than“assumes”--it’s important to realize that.)

The inability of proponents of SSM to say why marriage is or should be privileged overcohabitation means that the end-logic of SSM is the abolition of civil marriage *and* civilunions--for even civil unions cannot be arbitrarily privileged over cohabitation. The mainunintended consequence of SSM might be in this nihilistic neighborhood--“nihilistic” inmaking a venerated institution empty of meaning and value, effectively reducing marriageto cohabitation and thus constituting a per se harm to the institution of marriage.

John Howard says:Ken, they say that marriage should be prohibited over cohabitation because they need thesecurity and rights and benefits and also the equality for equality's sake, so that they canfeel the same approval that a man and a woman do when they det married.

Same-sex couples now have a capacity to procreate, but what they mean by procreation ismore akin to human manufacture. Unless we say that same-sex couples should not beallowed to procreate, we should let them marry. Are you willing to say that people do nothave a right to procreate with someone of the same sex and it should be prohibited likeincest is prohibited? We don't have to get that law enacted immediately, we can still arguethat we shouldn't approve of same-sex couples making babies together by issuing marriagelicenses. But we also have to be arguing for that law or else it makes no sense to withholdmarriage.

John Howard says:Oops, "privileged over cohabitation" not "prohibited."

bman says:

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 17 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

4.8.2013 | 4:05pm

4.8.2013 | 4:13pm

4.8.2013 | 8:30pm

4.8.2013 | 9:23pm

Ken Zaretzke "By “intrinsic capacity” I mean actual or ideal capacity.-----I would expect the SSm lawyer to reply, "Since Ken has equated intrinsic capacity withactual capacity, let us focus on whether infertile OS couples have actual capacity."

It seems the SSmer would then argue that "actual capacity" exists in fertile OS couples butnot sterile OS couples putting them on par with SS couples

Does something in your argument prevent that?

Ken Zaretzke says:John Howard,

“Perfectly fertile siblings are not allowed to marry.”

The intrinsic capacity to procreate is a necessary condition of marriage but not a sufficientcondition. So non-marriageable fertile siblings are not a counterexample. Minors can’tmarry, either, and for the same reason.

In constitutional cases involving marriage and artificial-reproduction technology, naturalprocreation is the default setting that makes minimum scrutiny the proper standard ofreview. Even if heightened scrutiny were employed, the case would be strong that naturalprocreation is the norm (excluding Frankensteinish ART), and that the government has acompelling interest in applying that norm to the disadvantage of same-sex marriage.

Heightened scrutiny appears to require Frankenstein equal protection. That’s dubious initself. However, not even Frankenstein equal protection can bring male homosexualcouples under its umbrella. Males don’t have wombs, and any kind of marriage that *must*allow for artificial wombs from “conception” to birth (that is, on behalf of male couples) isunacceptable. Frankenstein equal protection can’t pave the way for SSM if equality is not tocompletely lose its political legitimacy.

The only equal protection claim that’s left has a severe problem with common sense:“Allowing Timothy to marry Susie, but not Tommy instead of Susie, is blatant genderdiscrimination.” This kind of foolishness will likewise undermine the legitimacy of equality.I’ve never seen the idea defended by an undoubtedly competent philosopher, only byideological hacks. And yet, in the DOMA case, Justice Ginsberg (who is not a hack, I hastento add) hinted that she might resort to it as a basis for SSM. Future judicial nomineesshould be questioned about the reach of gender discrimination. If they might think itapplies to SSM at all, they should be sent to judicial purgatory where they cannot afflictharmless souls.

Ken Zaretzke says:bman,

You forgot the "ideal" part. Admittedly, it would have been clearer if I had defined intrinsiccapacity as "either an actual or an ideal capacity." Still, whatever happened to the principleof interpretative charity?

By ideal capacity I mean what the couple could do if their bodily organs were functioningnormally and optimally. It's not a potential capacity but a presently possessed *intrinsic*capacity, as is an actual capacity. All things being equal (function-wise), sterile and agedopposite-sex couple can procreate just fine.

bman says:Ken Zaretzke - "You forgot the "ideal" part. Admittedly, it would have been clearer if I haddefined intrinsic capacity as "either an actual or an ideal capacity." -----

I left it unmentioned because it looked like a synonym that did not seem to affect theargument.

I said to myself, "Of course actual capacity would be the ideal capacity to have," and so theterm seemed moot.

You further stated, "By ideal capacity I mean what the couple could do if their bodilyorgans were functioning normally and optimally."

On first glance, this seemed to mean, "ideal capacity is what infertile couples do not[actually] have since their bodily organs are not functioning optimally."

However, it now seems you are drawing a contrast between the fact infertile OS couples"could" beget children if their organs were functioning optimally, but it can't be said thatSS couples "could" do so if their organs were functioning optimally.

It seems a court would be compelled to accept that distinction.

Is that your argument or did I miss something?

Chairm says:The asserted supremacy of gay identity politics is now being pursued in the realm of

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 18 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

4.9.2013 | 6:20am

4.9.2013 | 12:15pm

4.9.2013 | 2:27pm

medical treatment for infertility. California is actually entertaining a proposed law to treatthe lack of the other sex as a form of disability. It is presented in terms of sexualorientation, however, but that is a fiction; same-sex sexual orientation can not transformthe lack of the other sex into a disability -- into infertility.

However, this latest move in the CA legislature may be a harbinger for the very things thatJohn Howard has been concerned about. It may be that the SSM idea -- even whererejected -- will gain enough influence to assert the fictive claim to a right to attempt tomanufacture children with same-sexed gametes. Certainly adding the funding (viahealthcare funding) of Government to those who would attempt such a thing wouldincrease the prospect.

It is important to recall that this form of human manufacture does not save lives and doesnot provide medical treatment for something that needs correction. The lack of the othersex is not infertility nor is it an actual disability.

Chairm says:Michael PS said: "If a couple, before marriage, agree to vow perfect and perpetual chastity,the vow does not take away the right, but the exercise of the right and the Church hasalways held such a marriage to be valid."

Not quite right. Marriage does entail marital chastity. Perhaps you meant something else.

Pius XI noted that Thomas Aquinas explained that mutual consent brings about marriageand that the nature of marriage itself (that to which consent is given) is procreative in kind.

Pius XI: "the nature of matrimony is entirely independent of the free will, so that if one hasonce contracted matrimony he is thereby subject to its divinely made laws and its essentialproperties. For the Angelic Doctor, writing on conjugal honor and on the offspring which isthe fruit of marriage, says, 'These things are so contained in matrimony by the marriagepact itself that, if anything to the contrary were expressed on the consent which makes themarriage, it would not be a true marriage.'"

The Church maintains that a valid marital agreement cannot exclude its essentials nor canit purposefully thwart the unitive and procreative purposes of this type of relationship.

But there is the legitimate question of how the Church authorities would be brought intoresolving such a non-marital pact as you proposed (if you meant something else thanmarital chastity) that would be publicly entered into under the guise of consent to a validCatholic marital agreement.

John Howard says:"The intrinsic capacity to procreate is a necessary condition of marriage but not a sufficientcondition."

Right, so what is the sufficient condition? It's being approved and allowed to procreate.And society could approve and allow same-sex couples to "procreate" if it equatesprocreation with "making babies together." Of course only a married man and a womancan make babies together ethically, but same-sex marriage is a judgement that same-sexcouples can also ethically make babies together and should be allowed and approved tomake babies just like a man and a woman are. Our task needs to be to show that same-sexcouples cannot ethically make babies together, because it violates the rights of the childand is bad public policy, would be too expensive and intrusive, lead to eugenics and genetictesting, and destroy the basis of equality and dignity. We need to preserve the right toprocreate naturally, by prohibiting or at least fighting third-party reproduction andfrankenstein manufacture of children from stem cells or other methods. There is no basisto preserve marriage if we don't also try to preserve natural reproduction. If we say same-sex couples should be allowed to make babies, then we really need to say they should beallowed to marry each other too.

Ken Zaretzke says:bman,

Is there a difference between Tom being allowed to marry Bill because Tom might havebeen “ideally” born a female, and Dave being allowed to marry Sue because Sue mightideally have been fertile? Yes, otherwise we’d have to say Rover should be allowed to marryDave (his master) because Rover might “ideally” have been born a human. Think of theidea of an ideal capacity to procreate with that in mind, and with an eye to ad hocery.

Note, we are not now talking about the *morality* of bestiality or homosexuality. We’retalking about whether Rover & Dave is comparable to Tom & Bill if the question is whatthey might have been, ideally speaking--Rover a human instead of a dog, and Tom a femaleinstead of a male. Isn’t it clear that the two cases are comparable? Whereas Rover & Dave isnot comparable to Justin & Joan, an infertile couple. The reason is that what Justin & Joanmight have been is solely a matter of bodily organ functionality. Unlike with male to femaleor dog to human, that doesn’t completely transform personal identity.

Rover & Dave and Tom & Bill are cases of being “ideally” *born as* something else. Not allsuch cases fall under the same roof, however. Alice was born black, but she is allowed tomarry Jeremy, a Caucasian. Skin color is irrelevant to proper function--a core aspect of theidentity of humans (and all living things, plants as well as animals). There’s nothingmorally wayward about Alice & Jeremy.

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 19 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

4.9.2013 | 2:50pm

4.9.2013 | 8:30pm

4.10.2013 | 12:31am

4.10.2013 | 10:17am

The sterile and aged opposite-sex couple and the interracial couple do not violate thenatural norm of proper function, unlike Tom & Dave and Rover & Bill. (Tom & Dave arenot in the same moral category as Rover & Bill, but morality is not the point of thecomparison.)

Ken Zaretzke says:John Howard,

I don’t necessarily disagree with you about the idea of ethical procreation. But how do youconvince people who don’t share your worldview that it is what you say it is? I agree aboutnatural procreation. But to draw it out, you must directly appeal to natural norms. Youmight find helpful Philippa Foot’s *Natural Goodness* and David Oderberg’s *RealEssentialism*, especially the chapter on “Life.”

I don’t know what are the sufficient conditions of marriage, if any. But the capacity toprocreate is clearly only a necessary condition of marriage.

No, not all same-sex couples can marry if natural procreation is jettisoned--only lesbians.Male homosexual couples can never procreate unless it is perfectly unproblematic toimplant wombs in them. No one wants to go there, not even the crazier marriagerevisionists (knock on wood).

bman says:The following excerpt from, "Do infertile couples clinch the case for same-sex marriage?"on Mercator Net adds some additional light on why the act by OS couples can bedistinguished from that of Ss couples.

As follows:

"Common law holds, and has always held, that a marriage is not valid until it isconsummated. What does consummating a marriage mean? It means and has alwaysmeant by law an act of vaginal intercourse between the husband and wife. If this act doesnot take place, the marriage can be legally declared a nullity. Until consummation, it issubject to annulment. Therefore, becoming “one flesh” is not optional for a legally validmarriage. If one is incapable of consummating a marriage or simply unwilling to do so forany reason, there can be no marriage, and therefore no “right” to it can exist. In legalterms, the spouse requesting an annulment of marriage on the grounds of impotency mustprove that the impotence or physical incapacity in the partner is permanent and incurable,and was so at the time of the marriage. Any attempted union between two males or twofemales easily meets these criteria for annulment. (Infertility, on the other hand, is not aground for annulment.)"

A sodomitical act has never been equivalent to vaginal intercourse. So, how can the courtview these different acts as equivalent now?

This difference also affects immigration law. Currently, if a spouse enters the US on thebasis of marriage,the immigration office considers it a fraudulent marriage if the foreignspouse never has intercourse with the American spouse.

SS "marriage" would allow even more immigration based on "marriage" but what could theimmigration office use to test for immigration fraud in those cases?

There is nothing in marriage law that says sodomy is an act of consummation, or that thelack of sodomy means no marriage.

Indeed, a Chairm has often noted, there is no sex act legally associated with Ssm at all.

John Howard says:"But how do you convince people who don’t share your worldview that it is what you say itis?"

With pragmatic and rational arguments about the costs and effects of allowing geneticengineering and eugenic gamete selection. It is really bad public policy, would lead tohorrible materialistic beliefs about humanity, waste energy and be excessively expensiveand unsustainable. And there is no right to procreate with the same sex or as the other sexthat overrides the public policy concerns, so we don't have to allow it, it would entirely beour choice to allow it, if we thought it was good public policy to allow it. But it isn't and wehave to convince people that there is no right to same-sex conception and we don't have toallow it and they aren't bigots because they oppose genetic engineering and manufacture ofhuman beings from same-sex couples. Preserving sexuality for future generations is ourmoral obligation, we can't let sex become obsolete, sex is something we should conserveand preserve for our posterity to experience.

bman says:Another difference in the sex act is that the reproductive sex organs of both partners aremated in vaginal intercourse, but that is impossible to the SS class.

Its rational for law to treat vaginal intercourse as a proxy for fertility, but its irrational forlaw to treat the SS act as a proxy for fertility.

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 20 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

4.10.2013 | 10:18am

4.10.2013 | 5:37pm

4.10.2013 | 9:45pm

4.16.2013 | 3:33pm

4.16.2013 | 11:21pm

bman says:SSmers often say there is no marriage test for procreation.

There are two proxy tests for that, though.

The first proxy text is that couples be of the opposite sex.

The second, is that they consummate the marriage by mating the reproductive organs ofthe opposite sex.

These same two proxy texts can also be used for an ethical procreation policy.

Ken Zaretzke says:I’d like to hammer in another nail re: the ideal capacity to procreate, for clarity’s sake andbecause, at a certain conservative magazine, the editor is unnecessarily confused aboutthis. (He professes to see no difference between gay guys Tom & Bill and infertile folksDave & Sue w/r/t the intrinsic capacity to procreate.)

The statement “if Tom had been born a female” looks and feels different and *is* differentfrom the statement “if Sue had been born fertile.” We can argue about the moral import ofthe difference, but it’s foolish to ignore how different the two propositions are--in theextent of their hypothesizing and in the assumptions they make about experience andnorms.

As for the moral import of this difference, two questions. Is fertility the natural norm forindividuals who are born female? Yes. Is being female the natural norm for individuals whoare born male? No.

As far as the ideal capacity to procreate is concerned, the former situation fits and the latterdoesn’t. If “ideal capacity” didn’t privilege the natural or the normative in this way, it wouldbe untethered from reality. Capacities are lived out as experiences, and if our concern iswith the real world, we will reject fanciful hypotheticals about the possibilities ofexperience. Tom could have been born a woman *ex hypothesi*. That doesn’t mean weshould suppose that he was in fact born a woman. By contrast, nothing is fanciful or ad hocabout supposing (ideally, or for the sake of argument) that Sue is fertile instead of infertile.

bman says:Ken Zaretzke says: "The sterile and aged opposite-sex couple and the interracial couple donot violate the natural norm of proper function, unlike Tom & Dave and Rover & Bill. "------No objection there.

However, the overall argument seems choppy and needs to be smoothed out so it can beexpressed with a valid form of argument, such as a syllogism.

Here is a prototype/draft on how I view your existing argument:

Premise: SS couples violate the natural norm of proper function Premise: Marriage is not allowed if the natural norm of proper function is violated Conclusion: SS couples are not allowed to marry

Premise: Infertile OS couples do not violate the natural norm of proper function Premise: Marriage is allowed if the natural norm of proper function is not violated Conclusion: Infertile OS couples are allowed to marry

Ken Zaretzke says:The intrinsic capacity to procreate is an idea that is perhaps easier understood andaccepted in terms of the two basic kinds of dispositions--a *stochastic* disposition for onehighly relevant class of persons (a disposition actualized only sometimes, with a constantor variable frequency), and for another highly relevant class of persons a *causal*disposition (actualized under certain conditions). The stochastic disposition belongs towomen, with their natural cycles of reproductivity. The causal disposition belongs to thesterile and aged, who can procreate under the condition of having normally or optimallyfunctioning bodily organs.

From the standpoint of an actual capacity to procreate, women in their natural cycles arelike the Cheshire Cat’s grin. This shows that actual procreativity is not the only standard ofmarriageability in the traditional marriage view, since there is nothing anomalous aboutwomen’s natural cycles. Also from the “weird” standpoint of actual procreativity--likewiseconfirming the traditional marriage view--there’s no difference between the inability ofBob & Dave to procreate with each other and Tom & Sue to procreate with each other. Thisis obviously absurd, and it’s more proof that the idea of an intrinsic capacity to procreate isneeded--either an actual or an ideal capacity.

Stochastic and causal dispositions show just why the intrinsic capacity to procreate is thecorrect standard of eligibility for marriage. The standard of an actual capacity, by itself, is astraw man erected by the proponents of same-sex marriage--those ingeniouspropagandists.

bman says:

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 21 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

4.17.2013 | 3:12pm

4.17.2013 | 5:11pm

4.18.2013 | 2:42pm

4.18.2013 | 4:33pm

4.18.2013 | 9:55pm

Ken Zaretzke: "The standard of an actual capacity, by itself, is a straw man erected by theproponents of same-sex marriage--those ingenious propagandists."------Thus, its false when SSmers say [inability + 0] is the basis upon which infertile OS couplesare allowed to marry.

The basis for allowing infertile OS couple to marry is actually [inability + X].

The abstract definition of X is, "the difference between the inability of SS couples toprocreate with each other as compared to the inability of OS couples to procreate with eachother."

bman says:The phrase "inability + 0" was meant as "inability plus nothing." Just clarifying that since itlooked like the letter O here, instead of a zero.

Ken Zaretzke says:bman on the "abstract definition of *X*: That is rather empty. I don't recognize it as beinganything like what I meant. To know the attraction of the definition of *X* to anyone, I'dhave to know how *o* is defined ("inability [to procreate] + *o*). If I knew what *o* is, Icould then maybe show where I was misunderstood, or how my argument about theintrinsic capacity to procreate was mistakenly trivialized.

Regarding the syllogism in the 4/10 comment, I think it is fine as far as it goes, but it leavestoo much out. A complete syllogism would include some premises and conclusions thatestablish the premises of that particular syllogism.

bman says:Ken Zaretzke: ....on the "abstract definition of *X*: That is rather empty. I don't recognizeit as being anything like what I meant. To know the attraction of the definition of *X* toanyone, I'd have to know how *o* is defined ("inability [to procreate] + *o*)------I meant the number zero there. Here is a brief test to see if the system displays themdifferently. This is a zero 0. This is a lower case letter o.

Anyway, "inability plus nothing" is how SSmers portray the matter, but I understand you tosay infertile OS couples come under the heading of "inability plus something" which wasrepresented with the X.

I am surprised the definition of X seemed dissimilar to you since its based on an actualstatement you made, "...difference between the inability of Bob & Dave to procreate witheach other and Tom & Sue to procreate with each other."

X was defined as: "...the difference between the inability of SS couples to procreate witheach other as compared to the inability of OS couples to procreate with each other."

Ken Zaretzke says:bman,

You entered the letter "o" rather than the numeral zero, so no wonder I was perplexed.They look distinctly different. This is the numeral zero [0], and this is the lower case letter[o]. Your "brief test" confirms that I had every reason to be perplexed.

I *described* the difference between the two inabilities. I didn't just declare them to bedifferent. Your definition of X is still unrecognizable to me as indicating what I said.

Do you agree that there is a fundamental difference between infertility due to malfunction(the sterile) or non-optimum function (octogenarians) and infertility due to bodilydiscomplementarity or natural function? Liberals are generally oblivious to this difference.That verifies their ideological drivenness, or unreasonableness.

More fundamentally, in the SSM debate liberals (I'm not saying you too) are oblivious tothe difference between self-righteousness and truth, just like self-righteous Cain who slewtruth-seeking Abel. (Cf. Yoram Hazony, *The Philosophy of Hebrew Scripture*, pp. 103-110.) A nice metaphor there, in my view.

bman says:Except for your objection to the definition of X, you seem to allow the proposed formulas.

SSmers essentially claim that [inability + nothing] applies to both SS couples and infertileOS couples equally.

As I understand your argument, however, the actual case is that [inability + not X] appliesto SS couples while [inability + X] applies to infertile OS couples.

Since "X" and "not X" are not equal, there must be two types of inability.

All that is needed, then, is a compelling and concise definition of what X is.

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 22 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

4.19.2013 | 4:33pm

4.19.2013 | 7:17pm

4.19.2013 | 8:35pm

In your recent post, you seem to define X as, "the fundamental difference betweeninfertility due to malfunction and infertility due to bodily discomplementarity or naturalfunction."

Perhaps that can be reduced to X = natural sexual complementarity.

Thus, infertile OS couples have [inability plus natural sexual complimentarity] while SScouples have [inability plus dis-complementarity].

Ken Zaretzke says:X=functional ability, which in turn determines complementarity. Function refers to theteleology of reproduction--how it's done. And in general, the intrinsic capacity to procreate(which is what we are discussing) is conceptually necessary because of the stochasticdisposition of human female reproduction. There is nothing ad hoc about positing an*intrinsic* capacity to procreate (not that you've suggested there is, but some proponentsof SSM might think there is).

So, here's a summary:

The institution of marriage presupposes the general fact of procreation--withoutprocreation, there is no need for the social institution of marriage; cohabitation will do justfine. (The genetic fallacy is no problem here.)

All OS and no SS couples have an intrinsic capacity to procreate, barring Frankensteinianprocreation in the case of lesbian couples.

Therefore, OS and not SS couples are properly eligible for marriage--that is, real marriageor marriage coherently understood.

Marriage equality is a mirage of equality.

Ken Zaretzke says:Asleep at the switch . . . when I defined X as "functional ability." No, the truth is that thereis no X or no need to discuss any X's. When proponents of SSM say both infertile OS couples and SS couples have an inability to procreate, they areassuming actual capacity as the benchmark. Obtusely, as I've been suggesting.

The correct standard is that of an *intrinsic* capacity to procreate, both because otherwisewe cannot say there's any difference between gay guys Bob & Bill and infertile folks Tom &Sue w/r/t the capacity to procreate--which is absurd, inasmuch as there is pretty clearly adifference (and it is not captured by the actual-capacity standard)--and also because weneed a way of encompassing, in our conception of capacities, the stochastic disposition ofwomen's reproductivity. "Actual capacity" doesn't do this very well. "Intrinsic capacity"does the job very nicely.

bman says:"X=functional ability, which in turn determines complementarity."----I agree with your logic but I am looking for language the average reader could instantlyagree to.

The formula [inability plus functional ability] would result in puzzled looks it seems.

By contrast, the formula [inability plus sexual complementarity] seems more readilyunderstood.

Besides, "sexual complementarity" presupposes functional ability, intrinsic capacity, actualcapacity, and ideal capacity as you have defined those terms. All are implicit in the term"sexual complementarity."

The term "sexual complementarity" also implies more than just "bodily" complementarity.

I view the term "sexual complementarity" as including the many dimensions ofcomplementarity of psyche and emotion which are not easily defined that would justifymarriage for male-female couples and not SS couples - higher dimensions ofcomplementarity native to OS couples, whether fertile or not, that are not native to SScouples.

Anyway, with that said, I think the left side of the formula also needs improvement.

Chairm has often noted, for example, that SS couples don't have "infertility" but they havean "inability" that is native to all SS couples.

By contrast, infertile OS couples have a "disability" to procreate that is not native to OScouple.

Therefore, perhaps a better contrast is that infertile OS couples have [infertility (ordisability) + X] while SS couples have [native inability + not X].

The terms "infertility" and "disability" also presuppose a native ability that is notfunctioning.

For that reason, it seems counter-intuitive to say infertile OS couples have "functional

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 23 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

4.20.2013 | 3:12pm

4.20.2013 | 3:38pm

4.20.2013 | 4:00pm

type the text above in the box below

Name

Email

ability" when what they have is a native ability that is "not" functional.

bman says:"Asleep at the switch . . . when I defined X as "functional ability." No, the truth is that thereis no X or no need to discuss any X's... The correct standard is that of an *intrinsic*capacity to procreate..:-------I think its more accurate to say "X=intrinsic capacity" than to say there is no need for X.

Besides, if a formula has [inability] on the left side, we need X on the other side to make aproper distinction.

We can, however, avoid a formula that has [inability] on the left, as in this next statement:

All OS couples can marry because they have intrinsic capacity [X], while all SS couplescannot marry because they have [~X], no intrinsic capacity.

In that statement, [inability +X] has been reduced to simply X.

It was the left side of the formula we did not need, while we retained the other side [X].

It seems, possible, however, to retain only the left side and not use X if we describe infertileOS couple as having [infertility or disability] as opposed to SS couples having [inability].

The terms "infertility" or "disability" presuppose an intrinsic capacity that is not fullyfunctioning, as opposed to an intrinsic inability in SS couples that is fully functional.

And, if we don't want to to leave that to inference, we can say infertile OS couples have [anintrinsic capacity to procreate that is not fully functional] while SS couples have [anintrinsic incapacity to procreate that is fully functional].

A bird with a broken wing has an intrinsic capacity to fly that is not properly functioning,while a mouse has an intrinsic incapacity to fly that is fully functioning.

The disability of the bird to fly does not deny its right to be classified as a bird, or deny it aright to be placed among the other birds in the zoo.

On the other hand, the disability of the bird to fly does not establish "equality" for all mice-that-can't fly to join the birds!

Perhaps infertile OS couples may be entitled to marry, not because of their intrinsiccapacity to procreate, but simply because they are male and female which gives them theright to be treated the same as other OS couples.

The bird that can't fly is still treated as a bird, while mice that cant' fly are still treated asmice and as though they were equal to birds that can't fly!

bman says:correction: The bird that can't fly is still treated as a bird, while mice that cant' fly are stilltreated as mice and [not] as though they were equal to birds that can't fly!

Ken Zaretzke says:It belatedly occurs to me that there's something odd about your focus on complementarity.Complementarity doesn't go to the question of infertility; the intrinsic capacity to procreatedoes.

Complementarity is a consequence of human physiology, while physiology is aconsequence of animal embodiment. That's morally important because we are, after all,embodied souls. The intrinsic capacity to procreate is a mirror not of complementarityalone, but of the embodiment-physiology-complementarity ontology that ultimatelyexplains mammalian reproduction. (This ontology is presupposed by Genesis 1 and 2.)

Complementarity does not mean the union of male and female. It means the fittedness ofmale and female--which makes union possible. As for the intrinsic capacity to procreate, itdoes not mean only the fittedness of male and female. It means there are certain functionsthat make the fittedness of male and female reproductively significant. The intrinsiccapacity to procreate is not just a biological concept. It's also a metaphysical concept--itpoints straight to dispositions, a subject of great interest to contemporary philosophers.

Defenders of traditional marriage can find considerable support in the idea of an intrinsiccapacity to procreate. They don't have to just wave vaguely in the direction of “acts of areproductive kind” in order to explain the difference between gay guys Bob & Bill andinfertile folks Tom & Sue.

6/2/13 2:08 PMSumma Contra Dowd | First Things

Page 24 of 24http://www.firstthings.com/onthesquare/2013/03/summa-contra-dowd

Comment:

Comment Policy: We welcome comments that contribute to the discussionof an issue raised in this article. Comments are moderated for content andlength. Those that are over 300 words or that do not advance theengagement of the topic will be deleted.

Submit Comment

LINKSHomeCurrent IssueAbout UsAdvertisingContact UsMediaRSS FeedsKindle & iPad EditionsStoreAffiliate BooksPrint SubscriptionWeb Subscription

BLOGSFirst ThoughtsDr. BoliKinship & CultureMaureen MullarkeyPeter LeithartPostmodern ConservativeHelen Rittelmeyer

FIND USFacebookTwitter

CONTACTft@firstthings.comp. 212.627.1985Contact UsCustomer ServiceLegal/Terms and Conditions