The Family and the Laws

By Hadley Arkes

The point has been tellingly made that the biblical injunction, "Honor thy father and thy mother," could not have referred simply to the biological father and mother. Were that the case, then honor and obedience would be owed to the man who sired a child in the course of rape. The moral philosophers have been quick to point out that an obligation may flow only to that man or woman who has met the moral definition of fathering and mothering -- the parent who was there, to provide support and protection, when they were needed by the child. But then we understand that the family -- the ensemble of parents and children­ -- is not simply a product of biology and nature, but of moral commitment and the law. That surely must have been what Aristotle had in mind when he wrote, at the beginning of the Politics, that the polis -- or the polity -- is a natural association, as natural for human beings as the family, but that "the polis is prior in the order of nature to the family and the individual." [1253a]

Now Aristotle, a worldly man, well understood that human beings could have sex even before governments were formed in any territory, and that they were perfectly capable of having sex even in those uncertain, troubling moments when governments broke down. What Aristotle was trying to point out, I think, was a matter that easily evades our notice: All animals have sex, yet that is not the same as having sexual relations within a framework that constitutes "families."But the question of what constitutes a family is a question that taps into the moral understanding that pervades the community and finds expression in the laws.

Having sex is quite different from "making love," with a distinctly human love -- which is to say, a love that is informed by a moral ground for affection and respect, a sense of why one's partner truly merits a more lasting commitment. As Maggie Gallagher has remarked, it is not free love but the vow that is daring: To commit ourselves to an enduring love, lasting through our lives, is the most daring and risky commitment that any of us may make. It must be the mark, as I say, of something distinctly moral: After all, when we talk about a partner who deserves our enduring love and respect, we imply that there is a goodness that will persist through time, even as looks may alter. We seem to be speaking then of the soul, or of a distinctly moral character. And what does a promise or a commitment mean if it does not mean that we bind ourselves not to be quit of it, even in straining times,when it may suit our inclinations or convenience to get out of it? But when we speak of binding commitments, we speak the language of the law. (A student of mine at Amherst a while back insisted to me that he was in a "committed" relationship with his girlfriend, and those of us who grew up in another era could plausibly ask, How is it a commitment if you haven't bound yourself; if you are still free to leave, without any penalties or even any disarranging of your lives?) Law is the distinctive mark of the polis, and as Aristotle understood, the polis must be in place, with the laws, before there can be "families." For there must be an understanding in the first place of what constitutes a family, and that sense of things will reflect, as I say, the moral understandings deeply planted in the community: Who are the partners who form the core of that unit? Would it be a man and a woman? Would it be a man with several women, a polygamous arrangement? Could it be a father and his natural daughter? A mother and her son? A father and his son? A man and his horse? Not too long ago, some friends in Denver brought the news of a man who showed up at the county office seeking a marriage license for himself and his horse. And the clerk found herself in the situation of one who applies the law, but no longer remembers the reasons. I take some pride in reporting to you that, when the story was told to me, I did guess the reason that that clerk finally gave for refusing to issue the license: the horse was not yet 18.

Do we engage in a kind of new wrong called “speciesism," a new wrongful discrimination against animals, when we assume that marriage depends on a distinctly human love, and that it must be reserved for humans? We hardly thought the point needed stating in the past, but for that matter we hardly thought that the point needed stating that marriage could be confined to a man and a woman. And yet, these are the questions that have been brought forth of late with a rising interest, taking hold in the law schools and the courts, in favor of what is called "same-sex marriage," or the marriage of two men or two women. Suddenly the old questions, once thought settled, are opened anew, as people insist that the established laws on marriage contain the conceit of arguing from "nature" -- from a true, natural sense of what marriage must be. But in the current temper, of course, in tune with the times, the argument is that the laws are merely the products of conventions, or fashions. From that perspective, the moral sense of a family is simply dependent on the opinions that prevail from one time or place, to another. And after all, as we have said, the ancient understanding, running back to Aristotle, is that the family is built upon more than nature, but a combination of nature and law. That sense of things was caught by Aristotle's teacher, Plato, in the Crito, when he had Socrates imagining the Law of Athens embodied, standing before him. Socrates affects to be weighing a scheme to escape from prison and the judgment of the law, and he imagines the Laws saying, Why would you do such a thing to us, Socrates? Why would you strike at us now, when it was through us -- through the Laws-­that you father married your mother and begot you. That may be a jarring notion to the man on the street, in Chicago or Provo, that he should be grateful to his local legislator for the laws under which his father married his mother and begot him. And yet, as the late Allan Bloom once put it,

It is only within the context of the law that a man can really imagine that the offspring from his loins can people the world. The law that gives names to families and tries to insure their integrity is a kind of unnatural force and endures only as long as does the regime of which it is a part.

But regimes change, and for the past thirty years, the people who regard themselves as most liberal and advanced in their thinking are the people who have been disposed to argue that regimes, along with everything else of moral significance, will change in different seasons and different locales, that understandings of right and wrong will always be "relative" to the culture in which they are held. This is what we call these days "cultural relativism" or the new doctrines of "multiculturalism." And those doctrines stand, of course, in opposition to the understanding of the American Founders, who established a government based on the "consent of the governed," and established that government on the strength of certain "self­evident" moral truths -- not truths that were evident to every self walking down the street, but self-evident in the sense of things that had to be grasped as true per se nota, true in themselves, true as axioms. And among the truths that were decisive here were truths about the "nature" that encompassed human beings.

The Founders insisted that certain rights arose from the very nature of human beings, in the things that separated human beings from animals. As the understanding ran, no man is by nature the ruler of other men in the way that men are by nature the ruler of dogs and horses. As Abraham Lincoln understood this ancient teaching, the right of human beings to be ruled only with their consent was a right grounded in nature; and that right would remain the same in all places, in all parts of the world, where that nature remained the same. But now, in one of the strangest turnabouts, the understanding of Lincoln and the Founders stands in an adversary relation to the understandings held by radical feminists, gay activists, and the opinion that is dominant now on the American campuses. For the partisans of sexual liberation have found it necessary now to deny that there are natural rights, grounded in human nature, because they wish to deny that there is a distinct "nature," and they most certainly wish to deny that there are moral truths grounded in nature. That strategy of argument seems to have been chosen for the sake of fending off those other people who might be inclined­-gasp! -- to cast moral judgments on others. And so, the people who would seek to be free in matters of sex have oddly adopted the perspective held by the adversaries of Lincoln: They too deny that we can speak about the things that are right or wrong for people in all places or cultures. In the sweep of their argument, they have been led to insist that there is not even such a thing as human "nature": that what some of us have been all too quick to treat as human nature is really "socially constructed" from one place to another, according to the vagaries of the local cultures. By this construction, everything in the laws is dependent merely on local opinion, and so even the laws of marriage are not grounded in anything in our nature. They too are to be shaped solely by the positive law, the law that is "posited" or enacted in any place, by the people who have the power to make law. And in this construction, the positive law may treat, as a marriage, anything that the community is willing to regard as a marriage.

But the curious thing about the people who take this line is that they don't seem to show the slightest hesitation or reluctance when it comes to casting moral judgments. Nor are they shy about casting those judgments on cultures, and regimes, in other places. Evidently, they think there are human rights, arising for human beings, whom they find violated in many places, and among those rights are the rights of women. They think, then, that they can identify certain distinct rights of women that hold true in all places -- and come to think of it, they even seem to assume that they can identify women in all places (even though some feminist theorists actually deny that there is a category, of ontological standing, called women or females). And so we find ourselves in this curious situation: In the world of the radical feminists on the campuses, there are human rights to be vindicated in all places; but strictly speaking, there are no humans, because there is no distinct human "nature." And because there are no moral truths, there are no "rights" that are truly rightful.

The activists seeking gay and lesbian marriage have worked through the courts, and that strategy has become necessary only because they understand that they cannot depend on legislatures, or on voters, acting in referenda, to change the laws on marriage, to permit marriage by partners of the same sex. And yet, if there are no natural rights, or moral truths that undergird our judgments of right and wrong, then the sentiment of the majority, reflected in legislatures and referenda, should be the opinion that is decisive in settling the question.

But of course, the party favoring gay marriage is no more inclined than any of the rest of us to take the sentiments of the majority at any moment as the definitive standard of judgment on any matter of right and wrong. Yet, in that event, the question has to bring us back to the problem of whether there is, finally, a nature, or a set of objective truths, that must indeed form the groundwork of any law of marriage wherever it is found, in the United States or Africa or China.

The recent troubles, in this country, over President Clinton has brought forth some of the clichés that have been established by now as surrogates, or replacements, for principles in our law. And so I find it quite common, among papers written by students, to hear it said that Mr. Clinton was involved in merely a private, consensual sexual relation with Ms. Lewinsky. Such private consensual relations in sex, it is said, should not even be a concern of the law, let alone a ground for the impeachment, or removal of the President. In this popular refrain we have, concentrated and summarized, some serious misunderstandings about nature, sexuality, and the law. There are some notable things the law will not permit -- indeed, which the law insists on restricting or punishing -- even though they have the consent of the participating adults: Consenting adults may not contract themselves into slavery or peonage; the courts will not uphold contracts of that kind. We are reminded here of a logic that seems to have fled from the historical memory of our people -- the notion of "unalienable" rights, of rights we do not have the competence to waive or to alienate, even for ourselves, because their rightness or wrongness is grounded in a principle that has nothing to do with our personal consent or disapproval. The wrongness of ruling human beings without their consent turns on the differences in nature that separate human beings from other animals, and even a person who is willing to regard himself as a slave does not have the competence to efface those differences in nature that separate him from other animals.

And so, with the same sense of things, the law has taken a strong stand in forbidding dueling, even though the custom may claim the, consent of the participating adults. As we extend the matter to questions of sex, we may note that courts have regarded adultery as a telling act or relation, which justifies the removal of custody over children, even though the adultery might have had consent of the participating adults. When we deal with children, we usually require the consent of their parents, or some responsible adult; and yet, when it comes to the participation of children in prostitution or pornography, we have not been willing to honor the preferences, or consent, of the parents, who might be altogether willing to have their children make money, and achieve stardom of a sorts, in pornographic films. There, we seem to say, the activity involving sex is so wrong that even the consent of adults will not render it innocent.

But then of course, we may ask, why do we seek the consent of adults in these cases? If sex has no moral significance, if it is something that may be pursued wholly for pleasure, without any sense of commitment or moral purpose, then what is it that a mature person is supposed to understand, which is not accessible to a child? What is it necessary to know here that is not known by a child or a teenager? The youngster may tenably claim to be the sovereign judge of the things that give him pleasure. On that limited point, his feelings are as reliable as those of the most mature adult.

The requirements of consent make sense only if there is something else involved, that runs beyond feeling or the sensations of pleasure. If we linger with the question for a short while, we would discover that this something else must be a matter of moral significance or moral understanding. It must have something to do with the grounds on which people understand what it means to make an enduring commitment to a partner, because they must understand what makes a partner enduringly worthy -- or morally deserving -- of that kind of lasting respect. What would we think, after all, of someone who said, "I married her because I had done over my apartment in Art Deco, and her complexion went with the curtains. But now, I'm redoing the apartment, and she just doesn't fit any more into my scheme of life.” This hypothetical always elicits a laugh, but this situation would not be ludicrous if we credited the notion that sex and marriage were entirely matters of aesthetics, or of subjective feelings, quite detached from moral judgments about the character of the partners.

But if moral judgment is relevant, "consent" implies some moral grounds of understanding, and we may ask, who determines just what age marks the age of consent? Or who determines what person stands in relation to the child as the person most qualified to tender that consent? If we were dealing with a young boy and a member of the North American Man-Boy Love Association -- if we were dealing, that is, with a sexual relation between a teenager and an adult -- who should be in a position to give that consent? Why not the man who professes to love that child -- and whom the child professes to love in turn, far more than he loves his parents? We've already had a precedent for this kind of shift in the cases involving abortions for teenage girls. There, we have been willing to credit the notion that a teenager might be too intimidated, or too embarrassed, to turn to her parents, and that she could get better counsel at the hands of a judge she doesn't know, than at the hands of the parents who do know her well. In the same way, why would we not be willing to let the child make the decision on sex with the lover he or she wants -- why do we not leave it to them? And yet, even the libertarians among us would reserve that kind of decision, to establish the terms of consent, to "the law," rather than to the parties themselves. And even the libertarians, even now, even in our own age, seem inclined to say that they would prefer to leave the decisions in the hands of the parents, who begot and nurtured the child. Is this but another path of backing into a recognition of the claims of "nature"? Is there an assumption that parents are more likely to be concerned about the well-being of their own children more than a stranger, who did not beget them and see them as their own "flesh-and-blood"?

But of course, we know that parents cannot always be trusted to take a nurturing view of their own children. Some parents take a mercenary or merchandising view. Some parents are willing to rent out their own children for the pleasure of others; some, in fact, are willing to sell them, and as we have come to know, far more fully than we ever wished to know, some parents are quite willing to kill the children who stand as a serious strain on their convenience or their plans in life.

Yet, all of that we have known since the beginning of political life, which is why we brought forth very early the recognition that children may not be merely the property of parents, to use as they would use any other property. At a certain point, a disinterested party should be able to step in, on behalf of the child, to offer protection to the child, and that party acts on the most plausible ground when he intervenes in the name of "the law," to extend the protections of "the law."

We have had, then, an understanding accumulated over the centuries to confirm to us that human acts do not stand outside the concerns of the law merely because they involve sex or sexuality. Ironically, it might have been Immanuel Kant, more than others, who alerted us to what is dim and unworldly in this argument. As Kant put it in one of his familiar formulations, for every class of act, there is a course of action that we ought -- or ought not -- take. Tucked away in that abstract formulation is this important recognition about the world we inhabit: There is not an activity, or an empirical thing we can name, that could not be part of a means-end chain leading to a harmful, or wrongful, end. A pen could be used to bestow a generous grant, or it could be used to commit fraud. The knowledge of driving an automobile could be used for the sake of driving an ambulance, and saving innocent lives, or it could be used to drive a get-away car in the service of a criminal project. We might ask then, Is it conceivable that, among all things in this world, sex, or sexual intercourse, can never be pursued in a way that inflicts harm, without justification; that it can never be pursued then for a wrongful end? And yet we think most obviously of rape to dispel that claim. Or we can think of sex pursued by renting out one's body to strangers, a practice condemned in virtually all countries. We can think of sex pursued thoughtlessly, exposing a partner to risk of disease­ -- and with a minor flexing of imagination we can think of many other instances in which sex can be productive of harm. And for that reason, these sexual encounters not only elicit our disapproval but at times even the restrictions and punishments of the law.

It could hardly follow, then, that sex must lie beyond the reach of the law, even if sex had no intrinsic significance. And yet, could we really accept so readily that notion that sex is without an intrinsic significance? Again, it is rather curious, but striking, that a certain class of writers has found a deep interest in asserting precisely that claim, that sex has no intrinsic moral significance; for that claim seems utterly necessary to their argument for liberation, or for a freer sexual life, less inhibited by moral concerns and restrictions. And so, about twenty years ago, Professor Alan Goldman argued, in a prestigious journal, for what he called "Plain Sex." Yes, of course, he conceded that sex could be affected with a larger significance when it was woven into relations of love and enveloped with a sense of commitment. But so too may be many other prosaic things. A mediocre dish, perhaps an ordinary tuna casserole, prepared by one's mother, can have a larger significance when it is prepared and brought forth by someone who loves us. And so, while sex can have that much larger significance, Goldman simply pointed out that it need not, that it may be enjoyed more casually, in a simple, unembellished way, without pretensions to larger meaning, and in fact, without gestures toward commitment, without professions of love. It may be enjoyed then as a simple recreation, much in the way that people might enjoy tennis or a game of bridge.

One might imagine then a conversation with a friend who is desolate, because his partner in tennis cannot make it to their weekly game. And I might say, "I know you count on your game with Fred, and Fred can't make it, but I was going to play with Jim -- why don't I give way and let you play with Jim this week?" But could we imagine, even in our own day, a conversation unfolded in this way: A friend tells us that he was desolate because he was going to have a weekend with Linda this week, and even though they weren't married, he was planning to sleep with her. And his interlocutor says, "Well, I know you're disappointed about Linda; but I was going to sleep with Darlene this week, and so why don't you take Darlene instead."If sex were the equivalent of tennis or bridge, as a form of recreation, this conversation should be quite as imaginable. But the reason it may still startle us -- even in this age -- was pointed out by Roger Scruton: that we cannot treat the partners here as "fungible" or interchangeable in the same way. Something in this matter of sex has a claim to exclusivity; it is not something done impersonally, among people who have only an evanescent relation, or a merely passing acquaintance. Something in the sexual act demands a sense of a lasting relation, as the only framework that is fitted, in its seriousness, to the act that it is framing. And for reasons rooted, once again, in the nature of the thing, the commitment of a contract seems thoroughly apt in these cases, in a way that it may seem quite bizarre in others.

Surely it is not the case that contracts are unimaginable when it comes to the relations among friends playing tennis or bridge. We know people who count, utterly, on their regular games, with the only opponents who are worthy of them. Harry might regard it as unthinkable that he should play tennis with someone other than Fred, and the bridge game would be reduced to a charade if he didn't have his usual partner and competition. Why not then make contracts for tennis or for the playing of bridge? Why not have the partners commit themselves to a regular regimen, and provide penalties when one partner, without a compelling reason, disappoints the expectation of the other and throws his life out of kilter? No, of course, not everyone does that, or treats these matters quite so seriously. But why not have contracts available for those who do? We might think of them as a kind of mini-marriage, a "tennis marriage," we might say, or a "bridge marriage." They are not like the other things we associate with marriage, but after all, the argument might run, why must there be a rigid definition of marriage? Why can't there be several tiers, or levels of marriage, of varying degrees of seriousness, making provision then for a wider variety in the meanings of marriage? But my sense is that even minds not tuned to philosophic reflection may begin to suspect that marriage could not be "broadened" in this way without losing something quite necessary for its coherence -- and its essential meaning.

What I've tried to suggest then, in an indirect path, is that a "natural teleology" is at work there -- that something in the nature of sex, in the strictest sense, must be at the core of marriage, or the understandings that have sprung up around marriage, and that these understandings are likely to be largely the same in all places, quite regardless of the local culture, because the intrinsic meaning of sex -- and the moral understandings surrounding sex -- are likely to be in all places the same. Why that point should be so obscure to us today is indeed one of the mysteries of our age, or it is a measure of how the inventiveness of political argument may obscure the plainest facts of our nature. It turns out that Mr. Clinton is quite right when he insists, finally, that he had no sexual relation with Miss Lewinsky -- it was not sex, he argues, in the strictest, most serious sense. In that, he is right, but he is also quite at odds with the understanding of "sex" that his Administration has adopted in its policies when it has sought legislation and put out executive orders dealing with discriminations based on "sexual orientation."That notion of "sexual orientation" encompasses orgasmic relations among two men or two women. In its abstractness, that formula of "sexual orientation" could even encompass bestiality, and relations with animals. But as Mr. Clinton is finally willing to say, when he is in a corner, that kind of sex doesn't really count as sex. Andrew Sullivan, a thoughtful, gay activist reaches the same point from another angle when he warns against the aggressive style of "queer politics," that it runs the danger of ,[breaking] off dialogue with the heterosexual families whose cooperation is needed in every generation, if gay children are to be accorded a modicum of dignity and hope."

But why is that cooperation needed? Precisely because "homosexual families" cannot produce "gay children." Gay children must come into being through the only kind of family that nature knows. There is indeed, in the strictest sense, one meaning of sexuality, and when I say that it is the plainest meaning, I would simply say with John Paul II, that it is the meaning "imprinted in nature," in the very presence of gender: As it was said in Genesis, Man and woman He made them. As the Congregation for the Doctrine of Faith once said, there may not always be nations. There has not always been a Bosnia or a Yugoslavia, and there may not always be an Italy or a Hungary. But there must always be men and women. That ineffaceable fact of gender reveals unmistakably its tells or its purpose. It is the function or purpose of begetting.

The question has been earnestly pressed, during the argument over same-sex marriage, "If people love each other, why should they not be allowed to proclaim that love into a marriage?" But we are reminded here that marriage runs beyond the matter of love -- as a man in Chicago observed in a letter to me when he said, "I love my sister, deeply; yet that doesn't mean that I should be allowed to marry her.”There are relations of deep, abiding love between brothers and sisters, parents and children, grandparents and grandchildren. In the nature of things -- in the nature of things -- those loves cannot be diminished as loves because they are not attended by penetration, or because they are not expressed in marriage. Nor do these people suffer an unwarranted discrimination if they are not permitted to manifest their love in a marriage.

Marriage is not strictly necessary then for love, and the absence of marriage cannot be taken to mark a diminished love (as in the love between parents and children). But marriage, in the sense of love combined with a binding commitment, does provide a framework morally suited to the purpose of begetting and nurturing children. The children enter the world then in a framework of lawfulness, with parents committed to their nurturance on the same grounds that they are committed to one another. And even in those melancholy moments when marriages break down, the laws on marriage still have the value of establishing just who bears responsibility for the care of those children.

One way or another, the question of marriage cannot be discussed while detaching ourselves from the so-called 'IN-word": nature. There is finally no getting around the fact that marriage cannot be detached from what we might call the "natural teleology of the body": namely, the inescapable fact that only two people, not three, only a man and a woman, can beget a child. The hard, obdurate fact here is that if marriage is detached from this natural teleology of the body, it loses the defining features, in principle, that cabin its meaning and establish its coherence. And so we posed the question during the hearings on the Defense of Marriage Act: If marriage were detached from that natural teleology of the body, on what ground of principle could the law confine marriage to "couples"? If the law permitted the marriage of people of the same sex, what is the ground of principle then on which the law would rule out as illegitimate the people who profess that their own love is not confined to a coupling of two, but woven together in a larger ensemble of three or four?

But if that arrangement of plural partners were permitted to people of the same sex, how could it be denied in principle to ensembles of mixed sexes? That is to say, we would be back, in principle, to the acceptance of polygamy.

The point is easily and often mistaken, and so I would underscore the fact that I am not offering here a prediction, or invoking a "parade of horribles."I am not predicting that, if gay marriage were allowed, we would be engulfed by incest and polygamy. What is being posed here is a question of principle:

What is the ground on which the law would turn back these challenges? It cannot be, "That isn't what we do here," for that answer would suffice right now about same-sex marriage. (During the hearings on the Defense of Marriage Act, Andrew Sullivan insisted that marriage is a contractual relation of two people. To which Dennis Prager replied, And we insist that it is a contractual relation between a man and a woman) But again, I do not expect that many people will be pressing, at least initially, for polygamy or even more exotic forms of "marriage."More than that, I will not suppose that people on the opposite side of this issue have even a remote interest in promoting polygamy or incest. But one thing can be attributed to the gay activists quite fairly and accurately: and that is that they do have the most profound interest, rooted in the logic of their doctrine, in discrediting the notion that marriage finds its defining ground in "nature." Their rhetorical strategy, their public arguments, have all been directed explicitly to the derision of that claim that sexuality in the strictest sense involves the sexuality "imprinted in our natures." And for that reason, we can count on the fact that there will be someone, somewhere, ready to press this issue to the next level by raising a challenge in the courts and testing the limits even further.

This point was confirmed, in a remarkably explicit way, in 1991, by Ms. Nan Hunter, a lawyer-activist, who argued "the impact of [gay and lesbian marriage] will be to dismantle the legal structure of gender in every marriage." For this arrangement, she said, has "the potential to expose and denaturalize the historical construction of gender at the heart of marriage." For several years, Ms. Hunter was the director of the AIDS Project and the Lesbian and Gay Rights Project for the American Civil Liberties Union. With these credentials, and these published sentiments, she was eminently suited for to her appointment in 1993, as the "deputy general counsel/legal counsel" in the Department of Health and Human Services under the Clinton Administration.

During the hearings on the Defense of Marriage Act, Congressmen Sensenbrenner picked up on this point, that we cannot accept same-sex marriage without removing the objections in principle to polygamy. He posed this problem to a legislator from Iowa who had been urging an acceptance of gay marriage. The young man simply flicked off the question by remarking that people in his district in Iowa weren't much interested in polygamy. It seemed to escape the imagination or the wit of this man that people in Iowa did not show much of an interest in polygamy in part because the law, for years, had cast up barriers to that practice. But if the law suddenly permitted these arrangements again, does one suppose that even some people in Iowa might not cultivate an interest in these exotic possibilities? And I don't have to belabor the point, with an audience here in Utah, that many old issues, long settled, and long dormant, may suddenly be revived again.

Even now, it turns out, we have been seeing a revival of polygamy in certain pockets of western States, in Arizona, and Utah. The Attorney General of Utah, Mr. Paul Van Dam, revealed one of the reasons for the revival when he remarked (in 1990) that we were simply faced these days with many couples cohabiting outside the framework of marriage. It becomes rather more difficult to enforce the laws on people cohabiting, in plural arrangements, outside of marriage, when the law is not enforced against people engaged in a kind of serial polygamy, cohabiting as couples outside of marriage.

The gay activists will often argue in response that not every marriage, of course, produces children; and from that point they argue in turn that a sterile couple proves the falsity of distinguishing between heterosexual and gay couples on the matter of marriage. But even people not covered over with college degrees have been able to grasp over the years the natural correspondences that establish the coherence in the design of marriage: There is a natural correspondence between the notion of marriage and the sexual coupling, the merging of bodies, in the "unitive significance" of marriage; and there is the plainest, natural connection between that act of coupling and the begetting of children. The children embody the "wedding" of the couples by combining in themselves the features of both parents. These meanings are so evident, these natural correspondences so fixed, that nothing in them is impaired if a couple happens to be incapable of begetting children. Their marital acts retain the same significance in the unitive scheme of marriage. And much the same understanding probably lies behind our surety that nothing in the significance, or the meaning, of rape is altered in the slightest degree if the female victim turns out to be sterile. There is still something of unparalleled presumption, and something particularly egregious, that makes this assault different from other kinds of assaults.

Now, whether people find this argument persuasive or not, it should be clear beyond cavilling that the position of the gay activists depends critically on rejecting the notion that there is any "natural', and fixed meaning behind sexuality, and that indeed the laws of marriage can be detached from Nature, or natural law, altogether. In this construction -- and the activists make no attempt to deny it -- marriage does become a matter solely of convention and opinion, and therefore it can be given virtually any shape by the positive law. But if marriage is solely a matter of the positive law, if we can make anything a marriage we are willing to treat as a marriage, then we may indeed provide for the marriage of fathers and Daughters, fathers and sons, men and their horses, or even as Michael Uhlmann suggests, the Oscar Wilde version, of the man who finally wishes to marry himself. Again, that is not to say that gay activists are open to all of these things; they profess their aversion to virtually all of them. But the critical point is that they acknowledge no principle that would stand as a barrier or mark the wrongness of these arrangements. The activists may not intend to spur on these novelties, but even they may not grasp the fuller implications of the changes they are triggering. For indeed, part of the function of the argument over gay marriage is to talk ourselves out of the understanding that there are barriers of principle, any ground of nature that confines the meaning of marriage, or any moral ground of judgment altogether on the matter of sexuality.

But then, as the saying goes, the activists are hoist by their own petard: If there are no principles at work, if everything is a matter of the positive law, and the positive law simply reflects the opinions dominant in any place, then the arguments of the activists are answered sufficiently by the public when the public simply votes these measures down, and records, in one way or another, that the rest of us simply will not have these things.

And yet, the problem is that we have a public now disposed to think that its opinions are merely that -- opinions, or even prejudices -- and that public has become ever more unwilling to cast judgments, or to legislate what it thinks now are merely its own prejudices. Or the courts to believe that this is no longer a subject fit for deliberation in public by the likes of ordinary people have tutored it; that it is a matter so serious that it can only be left to judges and courts. It may be a function of modernity, or the dumbing down of our age, but we have a public now rather like the clerks in the bureau of licenses in Denver: Ordinary folk no longer seem to remember the reasons behind our institutions, and the moral grounds behind our objections. The situation recalls the lament of G.K. Chesterton that

The world, especially the modern world, has reached a curious condition of ritual or routine; in which we might almost say that it is wrong even when it is right. It continues to a great extent to do the sensible things. It is rapidly ceasing to have any of the sensible reasons for doing them. It is always lecturing on the deadness of tradition; and it is living entirely on the life of tradition. It is always denouncing us for superstition; and its own principal virtues are now almost entirely superstitions.

And so Chesterton argued in this vein that modern people express a revulsion from cannibalism, but they no longer seem able to explain the reason behind the revulsion. The modern man is more likely to say, "We just don't do that here" -- not in this club, not on Park Avenue. The modern man, that is, invokes his prejudice and custom; the medieval schoolman could have given you a reason. But as we should have learned long ago, this current style in our discourse is simply not good enough -- not good enough to give an account of our laws or establish their moral justification. Plato put forth the fetching argument in the Meno that learning was mainly a matter of unlocking what was already within us. And for us, as a people, it is a matter of remembering things we once used to know. But when we unlock those understandings tucked away, we discover that the things we know most deeply and most surely are not merely things about ourselves. In that vein, we raise the question with our students about the Pythagorean theorem, which we may remember from our own school days: the square of the hypotenuse is equal to the sum of the square of the two adjacent sides. We ask the students, do they start by assuming that the Pythagorean theorem was about Greek triangles? After all, Pythagoras was drawing on his own culture, and it was hard to imagine his work detached from the tradition of Greek mathematics. And yet once we grasped the Pythagorean theorem, we understood that the validity of the theorem was contained in the axioms and the reasons, and no one seems to presume then that those reasons and axioms are confined to Greece. Students rightly laugh when we ask whether the Pythagorean theorem was about Greek triangles. And yet, they see no incongruity when they turn to the natural rights teaching of the American founders and they say, as all students seem inclined to say, that the Founders "believed" that "all men are created equal." But the Founders would have found it as bizarre to refer to that proposition as a belief as to refer to the Pythagorean theorem as a "belief." They understood that they were stating an "axiom" about human beings, grounded in nature, in the things that could not be denied without falling into contradiction. They took it as an axiom, in that way, that beings that could give and understand reasons deserved to be ruled only with the rendering of reasons. They thought it was wrong for people to be held punishable for acts they were powerless to affect; wrong for a man to be convicted without having the chance to rebut the case brought against him; and they understood many other axioms of this kind, which were bound up with the very idea of "lawfulness." And when the Founders sought to incorporate, in the Constitution, the principles of lawfulness, they knew that they were applying, in America, principles that were not distinctly American. They were the principles that would apply, as Kant said, for all creatures of reason, wherever they would be found. And the same nature that marked the differences between human beings and animals also contained, as an anchoring points, the differences in nature between men and women. There was no way for the law to avoid questions about the terms of principle on which human life was generated or destroyed, or the terms of principle on which families were constituted. It stands to reason that only creatures who bring forth, in their natures, the concern for law and lawfulness could be concerned about-these terms of principle on which they stand in relation even to those closest to them. That concern, for the principled terms on which we live, has connected the family and the laws since the very beginning of the polis and political life. We may be living now in an age of uncommon cultural forgetting; and yet, I think we can be certain that, if we staged another meeting of this kind at the end of the next millennium these questions would still be with US. For to rework an old line, these questions would be rooted again in a nature, a moral nature, that age will not diminish nor custom stale; and in the nature of things, it cannot be otherwise.

Remarks at Brigham Young University

January 15, 1999

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