The question as to whether same sex marriage be legalized or not has become increasingly common over the last decade. For more than the last thousand years, marriage has been considered globally as the public union between a woman and a man. Across the globe, in most the societies, homosexuality has been observed with contempt, and same-sex marriage had been banned (Corvino & Gallagher, 2012).
However, same-sex relationships are gradually gaining approval as more and more homosexuals were becoming vocal about their rights to marry anyone they want, as early in the 90s. Along with the increase in tolerance of homosexuality in societies and communities the dispute among nations over the controversy of gay marriage legalization also was increased. This essay would be looking at two arguments for and against the legalization of same-sex marriage – New Natural Law by John Finnis and Robert George, and Substantive Marriage by Richard Mohr.
The most common argument against the legalization of same-sex or homosexual marriage is the new natural law argument (NNLA). The main essence of NNLA is that it believes same-sex marriage to be impermissible since it contradicts the idea of basic human good or marital good that is achievable only via heterosexual unions which involve procreative acts (George, 2013). The two leading defenders of this law were John Finnis and Robert George, two of the principal architects of the law. They have been keen on stressing the secular angle to their outlook, trying to show that their arguments are embraceable by non-Catholic people too, despite being Catholic themselves.
The natural law theory has its roots deep into Thomism and some other contemporary theological accounts. This theory opines that humans are endowed with reasoning, and the natural laws of nature are distinct by human reason. Human beings are morally responsible for the discerning of law and the acts in conformity with them. The natural actions of human beings to eat, sleep and procreate is in agreement with the natural law specified for species to sustain and procreate. Morally good acts are activities in conformity with this law. This theory states that two individuals of the same sex if interact to produce orgasms would be judged as good or bad depending on the degree of their accordance with natural laws (George, 2014).
The theory formulated by Finnis is grounded with different ideas of basic goods. It contains acts that are intrinsically valuable and contains the intelligible ends of some human acts. Finnis and George present with arguments against all forms of no-marital sexual activities and not just same-sex marriage. They do so with the belief that marriage falls into the category of good that is essentially procreative. Their ultimate conclusion is that homosexual activities are unhealthy. From their belief, it can be extracted that the laws of men must not support or celebrate unhealthy relationships and that is what would happen if state recognition is provided to same sex marriage. For questions raised as objections to why sexual aspects are introduced in marriage, natural law arguments have a belief that without sexual interaction, which would lead to procreation, marriage does not become a marriage in its true sense (Duke, 2013).
One very strong argument against the natural law theory on behalf of same sex marriage is the Substantive Marriage argument of Richard Mohr (Mohr, 1995). Richard Mohr enunciates the substantive sense of marriage. He understands it as a form of intimacy that is provided with substance in the everyday life and is the joined intersection of necessity's demand and love's sanctity. The language he uses is not legal; however, it manages to capture the perceptible good at the heart of close human relationships. As a form of legal status, marriage identifies and replies to this reality (Stokes, 2015). He considers love to be blind, as overlooking the failings of the person whom we cherish and trying to sustain their happiness is the central concern of true love. He celebrates the importance and impact of flexibility in same sex marriages.
Mohr, while supporting same sex marriage, describes matrimony as the expansion and preservation of intimacy with the help of which people see their basic requirements and continue their lives. He puts forward this argument for both the homosexual and heterosexual couples equally. He considers gays and lesbians as members of the community we all live in, all the while exploring ways to manage greater legal and social inclusion. His argument, as to why same sex domestic partnerships are legally recognized, but not same sex marriage is powerful. His substantive explanation of marriage seems plausible, nevertheless in contemporary societies. The argument that marriage is by definition a union between man and woman only has no philosophical backing and is only supported by those who lookout for rationalization of their embarrassment in admitting that they believe gay people unworthy than straight people and marriage as an institution to be too good for them (Vaugh, 2015).
Mohr has an argument that gays must get an idea about gay experiences; they needed this education to feel visible and affirmed in their identity, which the society refuses to provide them with. He suggests the same education for non-gays too so that they can get out of the stereotypes and myths about homosexuality. He believes in the freedom of abiding by personal faith regarding righteousness, without it getting forced upon everyone. Mohr's arguments help in seeing beyond the fallacious appeals to nature and clearly see that same-sex unions embody good equally like the heterosexual ones (Wyatt-Nichol & Naylor, 2015).
From the arguments from Finnis and George’s perspective, legalization of same sex marriage would be a disalignment of law and what is right. It would encourage people to engage in and form unhealthy unions, and from the legal perspective would confuse people about the actual nature of a healthy sexual relationship. On the other hand, Mohr’s arguments on behalf of same sex marriages are more fitting to the idea of marriage, arguing substantive unions to not being exclusively or essentially heterosexual and not providing homosexual union recognition as being unjust and irrational.
Corvino, J., & Gallagher, M. (2012). Debating same-sex marriage. OUP USA.
Duke, G. (2013). Finnis on the Authority of Law and the Common Good. Legal Theory, 19(01), 44-62.
George, R. P. (2014). The clash of orthodoxies: Law, religion, and morality in crisis. Open Road Media.
George, R. P. (Ed.). (2013). Reason, morality, and law: the philosophy of John Finnis. OUP Oxford.
Mohr, R. D. (1995). The case for gay marriage. Notre Dame JL Ethics & Pub. Pol'y, 9, 215.
Stokes, P. (2015). Same-sex marriage: why the case against it is so weak. The Sydney Morning Herald. Retrieved 13 April 2017, from
Vaughn, L. (2015). Doing ethics: Moral reasoning and contemporary issues. WW Norton & Company.
Wyatt-Nichol, H., & Naylor, L. A. (2015). Liberty and Equality: In Defense of Same-Sex Marriage. Public Integrity, 17(2), 117-130.