The birds and the bees? Natural law and same-sex civil marriage
While some have wondered why Pope Benedict felt the need to mention same-sex marriage around Christmastime , few will wonder why Chicago's Cardinal Francis George went on the record in Sunday's Chicago Tribune  on the matter: Two Illinois legislators will introduce same-sex marriage  legislation this week in the lame duck session of the Illinois General Assembly. Last week, 250 Jewish and Christian clergy signed a statement in support of the legislation; George was not one of them.
George rightly points out that Catholic doctrine's opposition to same-sex sexual expression is rooted not in scripture or tradition but in an appeal to "natural law," a system of ethics first proposed by Aristotle but modified for Christian use by Thomas Aquinas. The nice thing about natural law is that it doesn't appeal to sectarian or confessional doctrine to justify its conclusions but on what is determined through the use of 'reason" to be "natural" to human beings as rational animals--though it often requires belief in a divine creator as the source of natural law. Principles or goods derived from natural law can be things as basic as the duty of self-preservation or the care of children. What it isn't, however, is looking at nature for examples of "good behavior"--for example, monogamous pairing among bird species is not a natural law argument--or at least not a good one--for monogamous marriage among human beings. You can always find a counter-example in nature; same-sex sexual behavior, for example, is commonly observed among animals.
It's a bit tricky to connect the civil and religious institution of marriage in all its complexity to natural law, though. George argues that "marriage comes to us from nature. That's based on the complementarity of the two sexes in such a way that the love of a man and a woman joined in a marital union is open to life, and that's how families are created and society goes along. … It's a matter of reason and understanding the way nature operates." So, for George, natural law includes marriage (a religious and civil institution created and governed by various human laws), the "complementarity of the sexes" as something built into creation (we'll have to assume he means biological and not gender roles), that this relationship is "open to life" (all the time?), and, finally, "that's how families are created and society goes along" (all societies?). That's quite a bit to expect from natural law, and it also assumes a common understanding of "reason" and "the way nature operates." Good luck with that in our pluralistic culture. (By the way, I'm sure George could give a much more erudite and sophisticated account of his natural law argument against same-sex marriage--this is a newpaper story after all.)
Also quoted in the story is a scholar from the "other" side, Bernard Schlager, executive director of the Center for Lesbian and Gay Studies in Religion and Ministry at Pacific School of Religion in Berkeley, Calif: "On sexual ethics, nature is neutral," he says. "We're moral beings. We may look to nature for some aspects of how we are in our lives, but we answer to a higher standard. Sexual behavior is an expression of human love."
The big question, however, is simply: Is that an adequate description of marriage as we now practice it? Is that an adequate description of how marriage has always been practiced across cultures? Or, to put it another way, have human societies across cultures agreed that George's description is, indeed, the "natural" definition of marriage? That's what natural law is supposed to do after all. We could ask the same question of Schlager: Is sexual behavior always an expression of human love? Both may argue that in the most moral situation, the answer to those questions is yes. For George it is simply definitional: "When we get behind the church and behind the state, you've got a natural reality that two men or two women … cannot consummate a marriage. It's a physical impossibility."
Obviously George's is by no means a universal definition of marriage, nor has sexual behavior within marriage always been an "expression of human love": For most much of its history, marriage has been defined as the union between a man and one or more women that functioned as much to assure paternity and property transfer as to express human love. Nowadays, at least in the West, but beyond as well, marriage has become more a special form of friendship that may or may not include procreation (or even sex for that matter); when it is "open to life," it usually results in far smaller famllies than it once did. While it's certainly true that men and women "naturally" come together sexually and produce children, the way societies have organized that biological function have varied, and by and large they continue to recognize as "married" couples who were never able to procreate--in fact, the church has long insisted that such marriages cannot be dissolved. Over the years and in many cultures, that has sometimes been a very unpopular position.
In the end, I'm not sure that natural law is all that helpful in the matter of same-sex civil marriage; when it comes from the mouth of a public religious figure, it ends up looking like a religious argument passing itself off as a neutral rational argument anyway. If anything, I think it better to distinguish between what is a sacrament within the Christian household and what is a contract in the civil realm. Each has its own appropriate arguments. Once we dismiss prejudice against gay and lesbian people as legitimate arguments against their civil marriage (and George, to his credit, says that "nobody should be disdained or persecuted because of their sexual orientation"), all that's left is the question of whether a civil marriage requires both a male and female partner (regardless of their willingness and ability to procreate). That's a question voters, courts, and legislatures are now deciding.
Within the churches, however, we have another set of questions that we ought to be asking, the first of which is simply: Why do we celebrate marriage in church at all? What has marriage to do with the reign of God? Is it indeed a kind of friendship? Does it require a commitment to at least attempt to bear children, or if not able to, to adopt or rear them in some other way? We might start by asking married couples and those who wish to be married to answer those quesitons themselves. We might be surprised by the answers we get.