The attempts to redefine marriage: a critical overview

  Andrew Wagstaff C.O.

Talk given during the Cephas Symposium on the Nature of Faith

Article 2 of Question 97 of the Prima Secundae Partis of the Summa is about whether

human law should always be changed whenever something better occurs. Saint Thomas

writes:

… human law is rightly changed, in so far as such change is conducive to the common

weal. But, to a certain extent, the mere change of law is of itself prejudicial to the

common good: because custom avails much for the observance of laws, seeing that

what is done contrary to general custom, even in slight matters, is looked upon as

grave. Consequently, when a law is changed, the binding power of the law is

diminished, in so far as custom is abolished. Wherefore human law should never be

changed, unless, in some way or other, the common weal be compensated according

to the extent of the harm done in this respect. Such compensation may arise either

from some very great and every evident benefit conferred by the new enactment; or

from the extreme urgency of the case, due to the fact that either the existing law is

clearly unjust, or its observance extremely harmful.1

Section 15 of the Offences Against the Person Act 1828 provided: “That every person

convicted of the Sodomy, abominable crime of Buggery, committed either with Mankind or

with any Animal, shall suffer Death as a Felon.” That section was repealed and replaced 2

with Section 61 of the Offences Against the Person Act 1861, which, under the heading of 3

“unnatural offences”, abolished the death penalty for buggery and replaced it with a

maximum sentence of ten years’ imprisonment. In 1885 it was amended to criminalise

other homosexual acts. In turn, that section was replaced with Sections 12 and 13 of the

Sexual Offences Act 1956, which provided as follows:

12 It is a felony for a person to commit buggery with another person or with an animal.

ST I-II q.97 a.2 ad resp. 1

2 9 Geo.4 c.31

3 24 & 25 Vict. c.100

13 It is an offence for a man to commit an act of gross indecency with another man,

whether in public or private, or to be a party to the commission by a man of an act of

gross indecency with another man, or to procure the commission by a man of an act of

gross indecency with another man.

The 1956 Act also increased the maximum sentence for buggery from ten years to life

imprisonment. By 1957, therefore, the statute book had looked substantively the same on

this topic for 129 years, subject to a variation in the severity of the sentence. In that year,

the Wolfendon Report recommended the decriminalisation of homosexual acts between

consenting adults in private. The committee wrote that the “decisive” argument in favour of

this development was that:

Unless a deliberate attempt is to be made by society, acting through the agency of the

law, to equate the sphere of crime with that of sin, there must remain a realm of private

morality and immorality which is, in brief and crude arms, not the law’s business.4

What is not as well known is that the same report also recommended research into the

treatment of homosexuality, and that it approved of measures to exclude homosexual 5

men from teaching or other responsibility for young people. Lord Arran drew upon the 6

findings of the Wolfenden Report in 1965, when he introduced to parliament draft

legislation which was to become the Sexual Offences Act 1967. Section 1 of the 1967 Act

provides that:

… a homosexual act in private shall not be an offence provided that the parties consent

thereto and have attained the age of twenty-one years.7

“Private” was defined as: (1) no more than two persons present, and (2) not in a public

lavatory. The same Act reduced the sentence for buggery otherwise than in private and

where there was consent to five years where the other man is under 21 or two years

where he was 21 or over. The maximum sentence for gross indecency between men in

4 Wolfenden Report, 1957, p.24

5 ibid. p.77

6 ibid. p.78

Sexual Offences Act 1967, S.1(1). 7

public was actually increased to five years. In short, homosexual acts between men

remained prima facie illegal, save where a strictly circumscribed exculpatory condition

applied. In the course of the debate in the Commons, the then Home Secretary Roy

Jenkins said this:

It would be a mistake to think … that by what we are doing tonight we are giving a vote

of confidence or congratulation to homosexuality. Those who suffer from this disability

carry a great weight of loneliness, guilt and shame. The crucial question, which we are

nearly at the end of answering decisively, is, should we add to those disadvantages the

full rigour of the criminal law?8

After this limited decriminalisation, the law remained substantially the same for a further 27

years, until Subsection 143(2) of the Criminal Justice and Public Order Act 1994 reduced

the age of homosexual consent from 21 to 18. After a further six years, the homosexual

age of consent was further lowered to 16 by the Sexual Offences (Amendment) Act 2000.

Three years after that, the 1956 Act was repealed almost entirely by the Sexual Offences

Act 2003. This was a significant legislative change because it abolished the basic

criminality of homosexual acts rather than making exceptions to criminal liability. This

represented the end of a line of statutory authority which had lasted 175 years.

In the course of debate about reducing the homosexual age of consent to 16, in the House

of Commons on 25 January 1999, the then Home Secretary Jack Straw was asked by

fellow Labour MP Stuart Bell to repeat his earlier written reassurance that “no legalisation

of homosexual marriages would be proposed by the Government and that there would be

no legal adoption of children by homosexual couples”, to which Mr Straw replied that he

did give such an undertaking. Nevertheless, in May 2002 Labour minister Jacqui Smith, 9

who herself had said just six months earlier that “joint adoption should remain limited to

married couples”, supported an amendment to the Adoption and Children Bill which 10

allowed adoption by unmarried couples, including same-sex couples.11

8 Hansard, 3 July 1967

9 Hansard 25 January 1999, column 22

10 Official Report, Special Standing Committee, 29 November 2001; c. 383

11 Hansard, 16 May 2002, column 1001

Meanwhile, back in the 1980s, concern among the public and conservative politicians

about reported instances of the promotion of homosexual behaviour to children in schools

and libraries run by the Greater London Authority had resulted in the enactment of Section

28 of the Local Government Act 1988. Section 28 provided that:

A local authority shall not—

(a) intentionally promote homosexuality or publish material with the intention of

promoting homosexuality;

(b) promote the teaching in any maintained school of the acceptability of

homosexuality as a pretended family relationship.

Section 28 lasted until 2003, when it was repealed by the Local Government Act 2003.

Significantly, during the Commons debate on 10 March 2003, the liberal Conservative MP

Alan Duncan argued that “in passing the Adoption and Children Act 2002, we last year

institutionalised in law homosexual parenthood as an actual family relationship …

Therefore, if a council were to look for gay parents under the law that this House has

passed, it could fall foul of section 28.” Despite the fact that it had been enacted just 15 12

years earlier, Labour government minister Nick Raynsford called Section 28 “a relic of a

less enlightened age,” he said that “it is offensive and it should go.” And so it did. 13

18 months later, the Labour Government made time for the second reading of the Civil

Partnerships Bill. This went on to create civil partnerships between homosexual couples,

having equivalent rights and responsibilities in law to married couples. Two things are

particularly noteworthy from the debate on 12 October 2004. First, Jacqui Smith introduced

the motion by seeking to set the Bill in the context of a long programme of progressive

reform. She said:

The Bill represents a historic step on what has been a long journey to respect and

dignity for lesbians and gay men in Britain. It is a natural progression in our vision

to build an inclusive society. As such, it builds on reforms that began back in 1967

with Leo Abse's private Member's Bill, backed by the then Home Secretary, Roy

Jenkins. The Government's commitment to equality has been strong and

12 Hansard, 10 March 2003, column 80

13 Hansard, 10 March 2003, column 85

unequivocal. We have equalised the age of consent, outlawed discrimination in the

workplace on the ground of sexual orientation, secured protection from

homophobic hate crimes and supported the abolition of section 28.14

Second, the official supporters of the Bill purported to give assurances that it would not

lead to “gay” “marriage”. The Conservative opposition front bench spokesman Alan

Duncan supported the Bill. During the course of his speech he distinguished civil

partnerships from marriage:

While marriage is an ancient institution with special religious significance, civil

partnership is a secular legal arrangement. … True, the two institutions are

designed on similar lines, but they are designed on parallel lines; and parallel lines,

as we all know, never meet. They are separate institutions for different groups of

people. Gay men and lesbians are different precisely because of who they love, so

the formal recognition of that love will itself create differences. One can therefore

argue strongly that the Bill does not undermine or compete with marriage. … the

clear distinction between a civil secular partnership and the institution of marriage

will, in my view, be preserved.15

Within two years, at the October 2006 Conservative Party Conference, the new leader

David Cameron said that “commitment … means something whether you’re a man and a

woman, a woman and a woman or a man and another man. That’s why we were right to

support civil partnerships, and I’m proud of that.” Mr Cameron referred to those words in 16

his first party conference speech as Prime Minister in 2011, where he announced a

consultation on “gay” “marriage”:

And to anyone who has reservations, I say: Yes, it's about equality, but it's also

about something else: commitment. Conservatives believe in the ties that bind us;

that society is stronger when we make vows to each other and support each other.

14 Hansard, 12 October 2004, column 174

Hansard, 12 October 2004, column 184 - 5. See also Hansard, 9 November 2004. 15

16 The Guardian, 4 October 2006

So I don't support gay marriage despite being a Conservative. I support gay

marriage because I'm a Conservative.17

For the purposes of United Kingdom statute law, marriage was redefined by the Marriage

(Same-Sex Couples) Act 2013 so as to allow for the possibility of two persons of the same

sex contracting a marriage. Looking back over the last two centuries of statutory

enactment, then, we see that for about 140 years homosexual acts were criminally

proscribed with severe penalties available to the courts. For about 36 years from 1967

there was a period of official toleration of some homosexual acts, which remained prima

facie illegal. Then, in a little less than a decade there is a period of very swift change

where homosexual couples were allowed to adopt children, the prohibition on the

promotion of homosexuality in schools was lifted, and first civil partnership and then “gay”

“marriage” were invented. Such was the pace of change, that one minister could without

apparent irony refer to a time just 15 years earlier as “a less enlightened age”.

Not only the law itself, but individual politicians seem to have moved from one view to the

opposite. Tim Yeo, for example, supported Section 28 in 1987, but voted to repeal it in

2003 and ended up voting for “gay” “marriage”, as did Andrew Mitchell. Peter Bottomley

voted for Section 28 in 1987 and 2003 and still ended up supporting “gay” “marriage” in

2013. Michael Howard was the minister who introduced Section 28, and he also ended up

voting for “gay” “marriage”. Patrick McLoughlin voted to keep Section 28 in 2003 but voted

to redefine marriage in 2013. Politicians who have been consistent between 1987 and

2013 include David Davis, Michael Fallon, Peter Lilley, John Redwood and Anne

Widdecombe. Interestingly, Davis and Fallon are now cabinet ministers, as is Jeremy

Wright, who voted against redefining marriage in 2013.

We also notice that at each stage in the development the proponents of change denied

any intention to enact further changes in the future, and that at every stage the proponents

of change relied on the changes that had already happened. So, for example, Jack Straw

expressly denied any intention to legislate for “gay” adoption or “marriage” when arguing

for a reduction in the age of consent, but “gay” adoption was on the statute book within

three years, and civil partnerships within five. Arguing for the repeal of Section 28, Alan

Duncan relied on the “gay” adoption legislation which Jack Straw had promised would not

17 The Guardian, 5 October 2011

be coming. Introducing the Civil Partnerships Bill, Jacqui Smith argued that it represented

the latest development in a line of authority beginning with the 1967 Act and including the

repeal of Section 28, despite the fact that Section 28 was itself enacted 20 years after the

1967 Act. In the debate on Civil Partnerships, Alan Duncan asserted that it was never

intended to become “gay” “marriage”, yet his own leader later relied on Conservative

support for Civil Partnerships to argue that it was logical for the party to support the

redefinition of marriage.

Let us return to Saint Thomas, and ask ourselves the question: is this evidence of good

legal philosophy? Saint Thomas certainly does not say that the law should never change

at all. Indeed, he quotes with approval Saint Augustine: “a temporal law, however just, may

be justly changed in the course of time.” Saint Thomas gives two reasons why it might be 18

right to change the law. First, human reason naturally advances from the less perfect to

the more perfect, for example in the understanding of science or philosophy, and so legal

institutions which may once have been established crudely to deal with some emergency

may over time be refined and perfected. Second, the conditions of human beings

themselves may change over time, so that, for example, a system of choosing

representatives appropriate at first may become inappropriate in the course of time. I 19

have not said anything yet about the merits of the legislative changes I have described.

Shortly, I will go on to look at a specific case in which we should be able to test whether a

good reason for redefining marriage has been identified. For now, I want to focus on the

process, because Saint Thomas does not advocate changing the law whenever it might

seem right to do so, but carefully qualifies the circumstances in which the law ought to be

changed. First of all, he says, the law “ought not to be quickly changed” because, unlike

the rules of art, which derive from reason alone, the law derives from custom, which

cannot change quickly without harming its own authority: “when a law is changed, the 20

binding power of the law is diminished, in so far as custom is abolished”. It is for this

reason that Saint Thomas says that “the human law should never be changed, unless, in

some way or other, the common weal be compensated according to the extent of the harm

done in this respect.” That compensation may either take the form of a “very great and 21

18 ST I-II q.97 a.1 sed contra

ST I-II q.97 a.1 ad resp. 19

20 ST I-II p.97 a.2 obj 1

ST I-II q.97 a.2 ad resp. 21

very evident benefit” conferred by the change, or else the eradication of some injustice.

Whether or not the various steps I have described on the way from the strict legal

prohibition of sodomy to its adoption as an alternative in law to the marital act, or any of

those steps, either confer great benefits on the common good or serve to rectify any great

injustice is a question about the merits of the substantive legislative change. For now I

want to finish looking at the process by giving a couple of examples of the negative

consequences of changing the law that Saint Thomas mentioned.

On 29 April 2010 Sir John Laws refused an appeal from Gary McFarlane against the

finding of the Employment Appeal Tribunal that he had not suffered discrimination on the

grounds of his religion. The facts of the case were that Mr McFarlane had worked as a

relationship counsellor for Relate, and had failed to confirm that he would offer psychosexual

therapy guidance (as well as relationship guidance) to same-sex couples. He said

that his employer had unjustly discriminated against him because his objection as a

Christian was conscientious, and based his claim on the protection afforded him by the

2003 Equality (Religion or Belief) Regulations. Laws LJ’s judgment asserted that no

system of belief may “sound any louder” in law than any other; His Lordship did not

address the objection that a system of rational individualism was clearly sounding loudest

in his own judgment, but I leave that criticism alone for now. My point is that Mr McFarlane

was 48 years old in 2010. The Equality (Sexual Orientation) Regulations 2007 had been in

force for just three of his 48 years, and between the ages of 26 and 41 he had lived in a

jurisdiction in which Section 28 had been in force. It must have seemed to someone in Mr

McFarlane’s position that the stance of the law had radically reversed itself in less than a

decade from a position of official disapproval of the promotion of “homosexuality as a

pretended family relationship” to compulsory approval of the same thing.

Or, we could take the example of Peter and Hazelmary Bull, who ran a Christian guest

house, in which they did not offer a double room to any save married couples. In 2013 they

lost their appeal to the Supreme Court against Court of Appeal and County Court awards

of damages to homosexual civil partners, who had been refused a double room. The

legislation under which they were sued, the 2007 Regulations, has now been superseded

by the Equality Act 2010, but the operative part of the provision remains the same, that

commercial suppliers of goods and services are not permitted to discriminate on the

grounds of sexual orientation. The Bulls argued that they were actually discriminating

between married and unmarried couples (which would not work now Parliament has 

purported to redefine marriage), but they lost anyway because the majority of the Supreme

Court regarded marriage and civil partnership as legally indistinguishable. Whatever the

merits of that decision on the facts and the law as it stood, my point is that Mr and Mrs Bull

were 74 and 69, respectively. In 1967 they would have been aged 28 and 23. They could

quite easily have run a guest house before the Sexual Offences Act 1967 (I don’t know

whether they did or not; it is irrelevant to the point) when to have procured an act of gross

indecency between men in private would have been a felony punishable by imprisonment.

So, in the lifetimes of these people, the law has gone from strictly forbidding a certain way

of acting on pain of criminal sanction to making the same course of action compulsory on

pain of civil damages.

These instances show how the law may be brought into disrepute by being changed too

frequently and hurriedly, as Saint Thomas warns in ST I-II q.97 a.2. Further, whatever the

intention behind the law and the content of the legislation, it can render it unjust. Saint

Thomas wrote that laws can be unjust in two ways. One way is to be contrary to the Divine

Law, and for the moment I am not going to say anything about that. The other way is that

they can be contrary to the human good, and within this category there are three

subdivisions. First, a law could be contrary to the human good in respect of its end if it is 22

unduly onerous or intended to satisfy what Saint Thomas the “cupidity or vainglory” of the

lawgiver. Reading reports of the Parliamentary debates which preceded the enactments I

have described here, I find there are grounds for holding that the politicians who supported

them did so because they wished to arrogate control over the people and because they

saw themselves as part of a grand progressive mission. Second, a law could be contrary

to the human good because it exceeds the lawful limits of the lawgiver’s power. Here we

have a problem in English law, which has traditionally treated the sovereign power of

Parliament as unlimited. Law students amuse themselves by discussing whether

Parliament could declare that black is white, or deem the moon to be made of cheese,

and, if so, whether jurists would them be forced to proceed on that basis. It is not so funny

when Parliament purports to redefine marriage. I will explain in a moment why I think that

Saint Thomas would say that that is certainly unjust as beyond the power of the lawgiver.

Third, Saint Thomas says that the law may be unjust when burdens are imposed unequally

on the community, even though with a view to the common good. I think that this last point

is important and that within it lies a key to understanding why a body of law in constant flux

ST I-II q.96 a.4 resp. 22

is such a bad thing. I have tried to show with a couple of examples that the status of

homosexual conduct has changed so frequently and quickly over the past 50 years that

the legal burdens on each individual person may not be the same this year as they were

last year, and that the distribution of the favour and disapproval of the law, her pleasure

and displeasure, vary constantly between various groups within society. Assurances

proffered by lawgivers that this change will be the last are constantly overridden and

forgotten by the same lawgivers or their successors; and this year’s new laws which we

were promised would not happen last year become the licence for next year’s laws to

break this year’s promises. It is not just that each person cannot have confidence in what

the state of the law is or will be in the future, although that is bad enough, it is that the law

itself takes on a whimsical character, “irrational, capricious and arbitrary” . 23

It is that word, “arbitrary” which is the antithesis of good law, because Saint Thomas’s chief

criterion for good law is that it is founded on reason. He wrote:

Human law has the nature of law in so far as it partakes of right reason; and it is

clear that, in this respect, it is derived from the eternal law. But in so far as it

deviates from reason, it is called an unjust law, and has the nature, not of law but of

violence.24

Of the unjust laws discussed at q.96 a.4, Saint Thomas says that they are “acts of violence

rather than laws; because, as Augustine says (De Lib. Arb. i, 5), ‘a law that is not just,

seems to be no law at all.’ ” The opposite of arbitrary laws, and their cure, is what is called

the Rule of Law, which I think is what Saint Thomas was taking about when he wrote:

Since then the animated justice of the judge is not found in every man, and since it

can be deflected, therefore it was necessary, whenever possible, for the law to

determine how to judge, and for very few matters to be left to the decision of men.25

When Parliament ceases to act as a lawgiver and starts to act as a judge of every issue it

goes wrong because, as Saint Thomas argues, the wisdom to judge is found in few

 Laws LJ in Mcfarlane v Relate (EWCA) 23

24 ST I-II q.93 a.3 ad 3

ST I-II 9.95 a.1 ad 2 “Whether it was useful for laws to be framed by men.” 25

persons. The value of customary law, and hence the argument Saint Thomas puts forward

for not changing it, is that its very permanence acs to uphold the Rule of Law. Saint John

Paul II wrote that according to the principle of the Rule of Law, “the law is sovereign and

not the arbitrary will of individuals”: it is submitted that a significant problem with the 26

changes to the law over the past 13 years is that they have come so thick and fast that

they have completely lost the appearance of the emanations of a coherent body of law and

become explicitly the expression of the arbitrary will of the lawgivers.

The essence of the Rule of Law was summed up by John Adams in his draft of the

Massachusetts State Constitution as a “government of laws and not of men”, and it is to

the United States that I wish to turn to look at some of the substantive arguments around

the redefinition of marriage. The United States is a common law jurisdiction like England

and Wales, but unlike this country it is a federal jurisdiction, meaning that under the

Constitution the States expressly cede certain powers to the federal government. One of

the functions of the United States Supreme Court is to restrain the exercise of power by

the federal government and by the governments of the states when such an exercise of

power is contrary to the provisions of the Constitution. Just over a year ago, the position at

law was that the legal definition of marriage seemed to vary from one state to another. In

some states marriage could legally be contracted not only between one man and one

woman, but between two men or between two women. In other states, the definition of

marriage as between one man and one woman was maintained. Some of these states

recognised the pseudo-marriages of other states, some did not. In some states, the state

legislatures had passed acts for the protection of marriage, expressly limiting the married

state to one man and one woman. In others, a democratic plebiscite had brought about the

same state of affairs, and in others the status quo had simply obtained without challenge.

In June 2015, however, this legal situation was overturned when the Supreme Court

handed down judgment in the case of Obergefell v Hodges. The case involved the 27

parties to a series of disputes in different states where either homosexual couples had not

been able to obtain marriage licences, or where their pseudo-marriages in other states had

not been recognised by state authorities. In brief, a majority of the court interpreted the

Due Process and Equal Protection clauses of the Constitution (the Fourteenth

Amendment) to require states to admit same-sex couples to the married state. Dissenting

26 Cestesimus annus, 1 May 1991, 44

576 U.S. _ (2015) 27

justices criticised the decision on the grounds the methodology, showing in learned written

opinions that such an innovation could not properly arise from the Fourteenth Amendment.

Another significant criticism is that the decision suffered from democratic deficit, since it

effectively overrode the democratic will of the peoples of the states whose law was

arbitrarily changed. I have insufficient time here to do justice to those arguments, important

and interesting as they are. What I was to focus on now is the reasoning which lay behind

the majority’s decision that there is a right to marry a person of the same sex as oneself.

The opinion of the majority was delivered by Kennedy J, and it contains three main

arguments as to why the parties to a marriage may be two men or two women. First,

Kennedy J argued that “the right to personal choice regarding marriage is inherent in the

concept of individual autonomy”. The phrase “individual autonomy” ought to ring alarm 28

bells with us if we are familiar with the writings of Saint John Paul II, who consistently

preferred to talk about the dignity and freedom of the human person. As soon as we start

to talk about individuals we lose any sense of the dignity of the person deriving from his or

her nature, and as soon as we talk about autonomy, we set aside the responsibility which

comes with freedom. Second, Kennedy J argued that the attributes of mutual love and

commitment which characterise marriage may be found in relationships between people of

the same sex as well as of opposite sexes, so that “same-sex couples, too, may aspire to

the transcendent purposes of marriage and seek fulfilment in its highest meaning.”

Whether this is right or wrong depends very much on what we consider to be the 29

transcendent purposes of marriage. Thirdly, Kennedy J advanced an argument from equal

treatment, namely that, because “the right to marry is a fundamental right inherent in the

liberty of the person”, it would “diminish [the] personhood” of homosexuals “to deny them 30

this right”. Here, the majority at least began to address the issue in terms of personal 31

freedom rather than individual liberty: the question becomes one of whether their logic

works: were the plaintiffs really deprived of the right to marry, and were they really seeking

it?

 Kennedy J, Obergefell v Hodges, 576 U.S._(2015) 12 (USSC) 28

29 Kennedy J, 17

30 Kennedy J, 22

31 Kennedy J, 19

If I may say so, I think that the intellectual heavyweights of the Supreme Court were on the

dissenting side. The leading dissenting opinion was delivered by Chief Justice Roberts,

while the other dissenters were Justices Clarence Thomas, Saul Alito, and the late Antonin

Scalia, who died earlier this year. Roberts CJ’s opinion is particularly helpful in proposing

answers to Kennedy J’s objections.

First, then, Kennedy J argued that marriage between two men or two women should be

lawful effectively because they want it: “marriage is desirable and the petitioners desire

it”, so to refuse offends their human dignity. The problem is that this way of arguing 32

confuses what the persons concerned subjectively desire with what is naturally desirable.

Saint Thomas teaches that that which is naturally desirable is necessarily the proper object

of the human will in the same way that the sum of the angles of a triangle is necessarily

180 degrees. Something is naturally desirable because it is connected to the final end of 33

happiness, yet that connection must be known to the intellect before the naturally desirable

object can command the adherence of the will. So the fact that a particular person’s will 34

desires a particular contingent object is, on its own, no guarantee that to obtain that object

accords with the person’s innate dignity. Further, as Roberts CJ pointed out in his opinion,

the inane dignity of the human person cannot be affected by the decision of the state to

grant or withhold a particular object: “The government cannot bestow dignity, and it cannot

take it away.” The reason for this is that the innate dignity of the human person lies in the 35

freedom to choose the good in any given situation, rather than in the quality of the specific

choices available to be made.

Secondly, I have already said that whether we accept Kennedy’s argument that same-sex

couples may aspire to the “transcendent purposes of marriage” depends on what that

phrase means. It seems evident to me that for the majority of the Supreme Court it

referred to emotional attachments alone. Saint Thomas would certainly not accept this

very limited definition, and would probably reject the idea that emotional attachments were

capable of amounting to transcendent purposes at all. For Saint Thomas, the ends of

32 Roberts CJ, 15

ST Ia q.82 a.1 resp. 33

ST Ia q.82 a.2 resp. 34

35 Roberts CJ, 17

marriage are the good of the offspring and the good of the spouses. Roberts CJ 36

expanded this definition of the ends of marriage, which “arose in the nature of things to

meet a vital need: ensuring that children are conceived by a mother and father committed

to raising them in the stable conditions of a lifelong relationship.” With respect, the 37

learned Chief Justice was quite correct to site his answer within the context of the natural

order, since this is where the institution of marriage belongs, not in the order of contingent

human law. Once we see that, it is apparent that only a man and a woman together can

form the marriage bond, since the natural begetting of children is impossible to two

persons of the same sex, even though many have resorted to unnatural means to obtain

children.

Thirdly, there is the question of whether the plaintiffs were ever really deprived of the right

to marry, or were ever really seeking it. The majority of the Supreme Court relied on a line

of authority about people who were forbidden to marry because of their race, or because

they were prisoners, but these examples were not equivalent to the cases before them,

which concerned people with no inclination to take or become a wife, which is what

“matrimony” means. It is like saying that one is deprived of the right to score a goal, not

because the goal mouth is blocked by a large goalkeeper, but because one has no desire

to kick the ball between the posts. What can we not score a goal by kicking it into the

crowd, or picking it up and throwing it? Every human being is either male or female, and

objectively free to marry a person of the opposite sex. As Clarence Thomas J observed,

across millennia and civilisations, “marriage referred to only one relationship: the union of

a man and a woman.” It is impossible for two men or two women to participate in that 38

relationship. Whatever formality may attend the state of affairs existing at law between two

persons of the same sex, that state of affairs is not marriage. Because justice is giving

things their due according to what they are, we do not deal justly unless we deal with

marriage according to what it is: to pretend that marriage may subsist in the relationship of

two persons of the same sex is to act unjustly.39

ST Suppl. IIIa q.41 a.1 resp. 36

37 Roberts CJ, 5

38 Roberts CJ, 26

 Reilly, R., Making Gay OK: how rationalising homosexual behaviour is changing everything, 39

Ignatius, 2015, pp.45-9

Saint Thomas would say that free will is integral to human dignity, and derives from the fact

that a human being by virtue of his reason is able freely to judge between comparable

options, an ability which distinguishes the human being as a rational animal from all other

animals which act according to their instincts. Free will is the power of choice, which is to 40

desire something for the sake of something else, as a means to an end, so that the power

of free will is to the will as reason is to the intellect. Now, the proper object of the will is 41

the good understood. The good refers to the final end of the human person, so that “the 42

will of necessity adheres to the last end”, namely happiness, “by means of which man 43

adheres to God”. The final end of the human person is determined by the nature of the 44

human being as a rational being: “the perfecting of his sensitive and vegetative tendencies

must be accomplished in subordination to his primary tendency, which is rational”.45

Human acts are good in so far as they are “in accordance with the order of reason”; in

particular, this means “that the [human] species is to be propagated and children

educated, and that the truth is to be sought”. “Anatomically and morally, only a man and 46

a woman can do this.” This determination is not inimical to free will because it is a natural 47

necessity, as the proper use of the reproductive power naturally befits the human person.48

In the marriage of one man and one woman, that to which human nature inclines “comes

to pass through the intervention of free will”. Matrimony is proper to human nature 49

precisely because of the difference between humans and animals, “whereby the human

species in so far as it is rational overflows the genus [of animals]”, so that human reason 50

has the power to know, and human will the power the choose, the good of the offspring

and the good of the spouses.

ST Ia q.83 a.1 resp. 40

ST Ia q.83 a.4 resp. 41

42 ST Ia q.82 a.4 resp.; ST I-II q.8 a.1 resp., ad 2

43 Copleston, F., A history of philosophy, v.2, 1950, p.405

ST Ia q.82 a.2 resp. 44

45 Copleston, Op. cit. p.405

46 Copleston, Op. cit. pp.405-7

47 Reilly, Op. cit., p.42

ST Ia q.82 a.1 resp. 48

ST Suppl. IIIa q.41 a.1 resp. 49

50 ST Suppl. IIIa q.41 a.1 ad 1

To Praise, To Bless, To Preach.