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 That section was repealed and replaced 2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