Legalizing homosexual marriage has roused deep-seated angers, fears, and passions on all sides of the debate. For those who support the traditional view of marriage, the legalization of marriage represents a rejection of a self-evident truth, while for those who support such legislation marriage is a union of fellowship which only prejudice denies to a particular segment of the population. At stake beyond the surface is the relationship of politics, religion, and natural law, and the perception that legalizing homosexual marriage is a wholesale rejection of a traditional moral, religious, and political concept that is both a symptom and a cause of a much broader cultural deterioration. Meanwhile, the self-proclaimed “progressives” view homosexual marriage as merely another step away from the stifling religious superstition of a tyrannical and corrupt edifice and towards an egalitarian paradise. In both cases, the legislation is seen as a monumental step (forwards or backwards) and a portentous breach from the past.
But amidst the clamoring, caterwauling, and occasionally self-aggrandizing antics of both sides of the debate, is it possible to find a saner via media solidly grounded within Catholic tradition? Can an understanding of natural law lead to a less reactionary view of the legislation of homosexual marriage?
A complete explanation of natural law is far beyond the scope of a blog entry. A brief passage from the Summa Theologica will suffice to make clear the pertinent implications of the theory.
“…the precepts of the natural law are related to practical reason as the first principles of scientific demonstrations are related to theoretical reason…Therefore, the first precept of the natural law is that we should do and seek good, and shun evil. And all the other precepts of the natural law are based on that precept, namely, that all the things that practical reason by nature understands to be human goods or evils belong to precepts of the natural law as things to be done or shunned.” ST I-II, 94, 2
Natural law is understood as a principle of action, and its precepts are divided into primary and secondary precepts. The primary precept is nearly tautological in form, but nevertheless asserts an indelible connection between the rational moral agent and the good; although we may question the extent of the helpfulness of this connection in forming specific moral guidelines, it is nevertheless presented and accepted as a self-evident truth that the will seeks the good. Aquinas later presents it as analogous to the principle of non-contradiction; it is certainly the case that on its own the principle of non-contradiction will not serve in itself to present a complete scientific knowledge of the universe, but it is nevertheless absolutely necessary to the work of science. Similarly, natural law suggests that moral principles of action are impossible without the understanding that the will is linked to the good. There are, then, secondary precepts - and possibly tertiary precepts, and so forth - that are ultimately derived from this primary precept and are implicitly but not explicitly contained in it.
It is important for the topic at hand that natural law theory asserts that this principles are principles of reason, not faith, and that as such they do not in themselves require the assent to revealed truth in order to be binding. Furthermore, the primary precept is indelible in any rational moral agent (although he leaves open the possibility that the mentally malformed may not have access to this precept because of his undeveloped rationality). Natural law’s primary advantage is that it grants that all humanity have access to a common first principle of moral action, which theoretically allows for rational, non-coercive, and corrective dialogue regarding moral precepts. However, a somewhat nebulous passage has always given me some concern about the usefulness of natural law in this regard.
“Therefore, regarding the general principles, the natural law in general can in no way be excised from the hearts of human beings. But the natural law is wiped out regarding particular actions insofar as desires or other emotions prevent reason from applying the general principles to particular actions, as I have said before. And the natural law can be excised from the hearts of human beings regarding the other, secondary precepts, either because of wicked opinions, just as errors in theoretical matters happen regarding necessary conclusions or because of evil customs or corrupt habits. For example, some did not think robbery a sin, or even sins against nature to be sinful, as the Apostle also says in Rom. 1:24-28.” ST I-II 94, 6
It is thus revealed that secondary precepts can be lost, not only from an individual but, as he mentions in another article, from within an entire nation. This is troubling because the possibility that secondary precepts can be lost undermines the potential for natural law to be used as a non-coercive form of moral persuasion. Furthermore, I have remarked to various individuals that if natural law theorists want to take this notion seriously, they would recognize that the study of natural law must be empirical and anthropological in nature. If general precepts of the natural law are defined by their indelibility, while secondary precepts are subject to loss through various causes, then determining what precepts are general and what precepts are secondary is entirely a matter of empirically searching for common moral precepts across time and culture. But this is merely an aside; the more pertinent issue is that because these secondary precepts can be lost, legislation regarding moral commands and prohibitions related to these secondary precepts becomes a much more complicated matter.
It is not the role of human law to prohibit everything which is potentially prohibited by natural law. As Aquinas puts it:
“…laws are established as certain rules or measures of human actions, as I have already said. But measures should be homogeneous with what they measure, as the Metaphysics says, since different kinds of things are measured by different kinds of measures. And so laws need also to be imposed on human beings according to their condition, since laws ought to be ‘possible regarding both nature and a country’s customs,’ as Isidore says.” ST I-II, 96, 2
Because laws are just insofar as they tend towards the common good of those ruled, the extent and nature of laws depend greatly on the customs and condition of a nation’s citizens. At the time Aquinas wrote, the citizens of most Christian nations were so homogeneous in belief that it seemed reasonable to issue civil legislation forbidding and even punishing the homosexual act (whether this really was prudent or even just is another question). But even a cursory glance at the United States’ citizenship reveals widespread heterogeneity. There is clearly a great deal of disagreement about many secondary precepts, and clearly there is disagreement regarding the moral implications of homosexuality. But according to Aquinas’ own account, this disagreement is indicative that it may not be just to enact laws forbidding homosexual relations.
But, of course, the issue is not merely homosexual relations, but the legalization of homosexual marriage. Many Catholics and other Christians have laid the blame for this occurrence squarely on the homosexual community, some even going so far as to characterize the wave of legislation as a deliberate attack on traditional marriage. I cannot and will not comment on the possible range and variety of motives that drive homosexuals, but I will say that they have become a scapegoat. Principles regarding marriage are clearly secondary precepts of the natural law, insofar as there has not been consensus across time and culture as to what constitutes marriage, the present debate not being the least sign of disunity. But the current departure from the natural law understanding of marriage is not the fault of the homosexuals. According to natural law, marriage is inextricably linked to family and the fertility of the marital act, and as such homosexual relations are barred from the possibility of marriage. But with the rise of widely accepted and effective birth control, among other social innovations, the prevailing understanding of marriage among heterosexuals shifted to a union of mutually loving individuals who seek a more or less lasting commitment. As family and children became an accidental rather than essential component of marriage, the natural law rationale behind the prohibition against homosexual marriage lost ground. Insofar as that secondary precept of the natural law was excised from the mainstream cultural conscience, the prohibition against homosexual marriage took on the character of arbitrary discrimination and mere distaste.
Now, governments must govern according to the character of their people. In the words of Augustine,
“It seems to me that laws written for the people’s governance rightly permit such things, and that God’s providence punishes them.” On Free Choice 1, 5, n. 13.
It is permissible and even in a limited sense just for permission to be granted for certain actions considered immoral by natural law, insofar as those governed no longer have access to those relevant precepts of natural law. Legislation allowing homosexual civil marriage then becomes an issue of prudence with respect to the people governed, and the democratic or representative process of government is one structure that attempts to prudently determine the fittingness of prohibiting or permitting homosexual marriage. Some states have rejected homosexual marriages, while others have accepted it, assumedly on the basis of the constitution and understandings of their respective citizens. In this, the government is acting correctly, and even in accordance with the tradition of politics as treated by Aquinas and Augustine.
This does not mean that Catholics need mindlessly or joyously accept the legalization of homosexual marriage. Insofar as it is permissible or right for a government to legalize homosexual marriage, the secondary precepts of the natural law must have been excised from the consciences of the nation. It is thus meet to grieve, not the legislation, but the widespread loss of these moral precepts. Even if a Catholic is perfectly right to vote against such, the passage of these acts of legislation need not be viewed as a monumental point of no return; nor, even, must we believe that the legislation is itself evil, because it is merely the act of a government attempting to maintain earthly peace. To assume it to be anything more is actually to make the government the guardian or magisterium of eternal truth, which I believe is a dangerous move. If action is to be taken, it must be towards the restoration of these precepts of natural law - provided, as I have mentioned before, we can even be sure of them ourselves. As recipients of the faith, we can rely on the revealed moral law as our guide, but outside of a sinful presumption of grace there is no short cut to the Truth. We can certainly not expect arguments from faith to be always persuasive to those who have not assented to the faith, although we should continue to pray that grace reveals the beauty of the faith and the truth of Christ not only to those around us but also to ourselves. This is not a campaign against homosexuals, who in any case are probably not the originators of our current cultural confusion regarding marriage and are instead to some degree the victims of an unhealthy and incorrect view of marriage which originated among heterosexuals. We should continue to search for compelling reasons for the natural law precepts regarding marriage that draw from the entire armament of the mind, including the physical sciences, in an effort to inasmuch as possible restore an awareness of these lost precepts. In doing so, we should be aware that our own understanding of the natural law is also always subject to improvements, correction, and perfection, and therefore that it is possible that imperfections or misunderstandings in the always unfolding tradition may have led in part to the current loss of the precepts of natural law. Most importantly we must not be the Pharisee who points back at the wretched sinner in an attitude of self-assured holiness.