The U.S. Supreme Court’s landmark decision to strike down Section 3 of the federal Defense of Marriage Act as unconstitutional is an example of how basic definitions logically determine what is regarded as morally just and what is regarded as morally unjust.
It is not always easy to define the obvious. To define something requires us to specify its essence by indicating its form and matter. A definition must specify a form by indicating a specific difference within a genus. Thus, the endeavor is often considered to be scientific or philosophical. It generally requires some familiarity with basic logic. Definitions delineate the extensions of terms which signify the specific natures of things. A given description is a true definition if, and only if, it distinguishes, all and only, the members of a kind. If a particular proposition fails to distinguish, all and only, the things of a kind, then it may be an adequate description, but it is not a definition. Activities and relations can be defined as readily as substances can. To take an example from Plato’s Sophist, the activity of angling can be defined as the activity of attempting to catch fish by means of a line and a hook. Thus, the proximate genus of angling is the activity of attempting to catch fish. There are other ways, besides angling, to catch fish. The specific difference of angling is the use of a line and a hook. If we are not using a line and a hook, then we are not angling. And every instance of using a line and a hook, in the attempt to catch fish, is some form of angling.
A definition of an activity also indicates the intrinsic purpose of the activity in accord with its essential ends. The intrinsic purpose of the activity of angling, for example, is to catch fish. A good angler is someone who has ability and success in catching fish specifically with a line and a hook. Thus, the specific perfective good of angling is the capture of fish with a line and a hook. The delectable good of angling, by contrast, is the specific pleasure that attends the activity. This pleasure is greatly enhanced whenever the activity attains all of its essential ends. The delectable good of angling, however, is not what makes someone an angler. A person can be a good angler and experience no pleasure at all in the activity. And a person can experience part of the specific pleasure of angling without actually catching any fish. The perfective good, not the delectable good, is what makes an activity to be the kind of activity it is. Thus, a person is an angler only insofar as that person is engaging in an activity that is intrinsically ordered to catching fish with a line and a hook. This specific kind of activity is what makes a person an angler, even if the person unfortunately fails to catch any fish.
Societies often find it necessary and prudent to regulate certain kinds of activities. Any law that regulates a given activity presupposes a definition of that activity. In our society, for example, there are certain laws that pertain to the activity of angling. It normally requires a license. The license to angle does not permit the activity of catching fish with nets, dynamite, etc. Angling must be done in such a way to hook fish in the mouth, rather than snagging them, etc. Angling is permitted only at designated times and places, and so on. Like any other kind of human activity, angling has an essence that exists prior to its definition, and prior to any laws that regulate the activity. The possession of a license to angle is not what makes a person an angler. A person is an angler only insofar as that person actually engages in the activity of angling in accord with its essential ends. And a person is a good angler only insofar as that person is actually able to catch fish by means of a line and a hook.
Now suppose that in our society there were significant social benefits formally attached to angling that were not also attached to, say, kite-flying, and similar recreational activities. Perhaps, those who regularly engage in angling would then be granted special privileges and exemptions. One problem would be that not everyone would have an equal opportunity to engage regularly in the activity of angling. Not everyone has a boat or lives near water. Suppose also that in our society there were many people who found it enjoyable and practical to fly kites by means of lines and hooks normally used for fishing. Perhaps, then it would even be commonplace to use a rod and a reel along with a line and a hook in the activity of flying a kite. In such a situation, some people might organize a coalition to have the activity of kite-flying legally recognized as a form of angling and thus, given the same privileges and exemptions. This coalition might even succeed in obtaining the legal recognition of kite-flying as angling. Such a legal definition would not, however, change the obvious fact that flying kites is an activity essentially different from catching fish.
Some people find kite-flying to be just as satisfying as catching fish, but these two activities have totally different objects as their intrinsic ends. Indeed, from the standpoint of catching fish, the activity of flying kites is unproductive. Kite-flying can certainly be used in the activity of angling, sometimes even productively, but then it is obviously a means to an end that is extrinsic to itself. Kite-flying and angling are essentially different forms of activity, regardless of whether our particular legal system recognizes them as such. A society can sanction whatever kinds of activity the majority, or some powerful minority, wants to sanction, but it cannot, thereby, magically turn one form of activity into a different form of activity, any more than it can turn kites into fish. And the fact that a particular society happens to sanction a particular activity does not necessarily make that activity morally licit.
The traditional definition of marriage specifies the form and matter of a common human activity that can be identified as easily as angling or flying a kite. In order to identify a specific activity, we do not generally need a formal definition, but a formal definition is often helpful, especially in legal contexts. The genus of marriage is that it is a permanent covenant. Every kind of covenant involves a lasting commitment and a steadfast fidelity to a personal community. Every kind of covenant involves an exclusive relationship that, at least, apparently serves the good of those who are in it. Every kind of covenant involves a personal exchange of vows. The specific difference in marriage as a permanent covenant is that it is made between a man and a woman specifically for the sake of generating and nurturing children. The specific human activity by which children are naturally generated is one of the essential ends of marriage. Any permanent covenant that intentionally and deliberately excludes this natural procreative end is not a true marriage. And every instance of entering a permanent covenant specifically for the sake of this natural procreative end is some form of marriage.
Of course, procreative human activity is always possible without a covenant, but such an activity is not a marriage. A voluntary personal union is a marriage if, and only if, all the essential ends of marriage are intended, at least implicitly. The specific perfective good of marriage is the kind of personal union which is intrinsically ordered both to the procreation of children and to the physical expression of the covenant relationship itself. The highest perfective good of the specific activity of marriage is the generation of children in the context of a permanent and loving communion of husband and wife. And all human activities are objectively good only insofar as they, at least implicitly, respect all the ends to which they are intrinsically ordered.
The delectable good of marriage is the specific pleasure that attends the specific activity of marriage. This pleasure is greatly enhanced whenever the activity respects its intrinsic ends and is open to life. The delectable good of the activity, however, is not what makes someone married. A person can be married and experience no pleasure at all in the activity. Furthermore, part of the specific pleasure of the activity can always be physically enjoyed apart from marriage, but never morally so. Sexual pleasure is intrinsically ordered to the specific activity of marriage and can never morally be divorced from it. The perfective good, not the delectable good, is what makes the activity to be the kind of activity it is. A couple is therefore married only insofar as that couple has entered a covenant that exists specifically for the sake of the activity that is procreative by its very nature. This kind of activity is possible only between two people of the opposite sex. Such activity may, or may not, actually generate children, but we all recognize that it is the specific activity of marriage nonetheless.
Same-sex marriage is, therefore, as impossible as a square circle or a married bachelor. Indeed, the very concept of same-sex marriage is incoherent. But it is not always easy to recognize that an incoherent concept is actually incoherent. We often find it difficult to give priority to the perfective good over the delectable good. We tend to evaluate our activities as good or bad solely on the basis of how they make us feel, not on the basis of whether they actually or, at least, potentially, achieve their intrinsic ends. We also tend to define natures not as they exist in themselves, but rather in terms of how we typically experience them. We tend to define the nature of the human person, for example, not as an intellectual potentiality, but as a kind of conscious experience, as if an individual had to become conscious in order to be a person. Whenever we fall into implicitly incoherent ways of thinking and acting, the challenge is to make the incoherence apparent. We are often habitually overlooking something essential.
The nature of marriage is, in fact, essentially inseparable from the nature of human procreation. The human sexual faculty, as it exists in itself, has two different, but equally essential, physical organs which deliver two different, but equally essential, components. The highest perfective good of this faculty (procreation and impregnation) cannot be naturally attained without the union of a male component (a sperm cell) and a female component (an egg cell). Accordingly, any use of this faculty ought to be intrinsically ordered to that essential end and, thus, be open to life. The specific object of consent in marriage is not merely to give and receive sexual pleasure or romantic love, but to engage in the kind of human activity that is inherently procreative. The nature of the consent depends not on the actual capacity of the couple to generate children, but on the actual capacity of the couple to engage in the kind of activity that is inherently ordered to the generation of children. The couple who exchanges the marriage vows may be temporarily or permanently infertile, but they are still married insofar as they are able to consummate their vows and, thus, enter into the covenant of marriage. Only a couple who is capable of engaging in that specifically procreative kind of activity is capable of being married. Impotence is an impediment to marriage, but sterility is not. This fact is simply one instance of the general truth about what makes an activity to be the kind of activity it is. In exactly the same way, only a person who is capable of engaging in the specific activity of angling can be an angler. If that is not obvious, then nothing is. If a person happens to be angling in a pond where there are no fish, he is an angler nonetheless. But if he has no line and no hook, then whatever he is doing in that pond is obviously not angling. Being a married couple, like being an angler, requires the right equipment, as well as the right intention.
Religious leaders, and all people of good will, who are endeavoring to follow the ways of God are called to recognize and defend the truth about the nature of marriage. The truth about the nature of marriage can be recognized and defended either by reason or by faith. People of faith often insist that marriage is, by its very nature, ordered to the union and good of the couple, and to the generation and education of children. But people of faith are not, thereby, attempting to impose a personal or religious belief on those who have a different opinion. The basic claim here is one that is fundamentally grounded in reason. Procreation is, in fact, one of the essential ends of marriage. To deprive the institution of that end is to act against the good of marriage. This moral truth applies equally to everyone—to those who are drafting the legal definition of marriage, as well as to those who are engaging in the specific activity of marriage. Everyone who denies, in word or deed, that marriage is ordered to procreation falls into incoherence, like people who deny that a circle is round. Either they do not know the meaning of the term, or they are just being facetious. Unfortunately, many people in our society nowadays literally do not know the full and exact meaning of marriage. They have only a partial understanding of the nature of marriage, and under the motive of compassion, they propose to extend the institution to those who are incapable of engaging in the specific activity of marriage. The basic error is the one that we make in practical reasoning whenever we focus on that which is delectable to the exclusion of that which is perfective. In our words and deeds, we must respect the total meaning of marriage and thus all of its essential ends. In our words and deeds, we must never deprive marriage of a good that ought to be present in it.
A basic error in practical reasoning always carries the potential to cause a great deal of misery. We must have a working definition of marriage, but our working definition is correct only insofar as it includes all, and only, the essential ends of marriage. If it excludes something essential to marriage or includes something that is not marriage, then it will contribute to social injustice, whether we recognize it or not. We often institutionalize injustice and then persistently fail to recognize it as injustice. This has certainly been the case with regard to the institution of slavery, in the antebellum South and in many other societies around the world. And we often fall into personally destructive habits and fail to recognize them as personally destructive. If we redefine nutrition to include indulgence and begin to act accordingly, then we will be making ourselves sick, but we will not necessarily recognize the cause. If we redefine marriage to include same-sex unions and begin to act accordingly, then we will be making our society sick, but we will not necessarily recognize the cause. Observation is theory-laden and emotion-laden, and what appears positive and healthy to one person often appears negative and unhealthy to another. Given a false set of assumptions, or a misguided set of concerns or suspicions, social injustice can look like moral progress, and social justice can look like moral regress. We very persistently see only what we expect or want to see.
There is no way to remain neutral in this kind of disagreement. Everything hangs on the basic definition, and the basic definition is either right or wrong. We must adopt and defend one definition of marriage, or another. Sexual activity is either intrinsically ordered to procreation, or it is not. Cohabitation and emotional bonds are either equivalent to marriage, or they are not. Identifying one specific form of sexual union as uniquely marital and moral is either an unjust and arbitrary discrimination among human activities that are essentially the same, or it is a just and fair discrimination among human activities that are essentially different. An unjust and arbitrary discrimination would be one that mistakes what is accidental for something essential. If we believe, for example, that interracial marriage is immoral, we are supposing that being of the same race is as essential to the specific activity of marriage as being of the opposite sex. If we believe, similarly, that in order to be an angler, a person must be using a line of a certain color, we are obviously including in the working definition of angling a certain characteristic that is actually inessential. The only way to overcome such false doctrines about particular human activities is to reflect carefully on the specific natures of those activities.
Acts of discrimination (i.e., judgments) are necessary and unavoidable, but some acts of discrimination are just, and some are unjust. Essences are what make acts of discrimination just or unjust. We ought to recognize, for example, that using a line is essential to being an angler, and that the color of the line is inessential to being an angler. In the same way, we ought to recognize that being of the opposite sex is essential to being a married couple, and that being of the same race is inessential to being a married couple. If that is not obvious, then we ought to take another hard look at what marriage is. Procreation is, in fact, one of the essential ends of marriage, but racial purity is not. Certainly we ought always to avoid every form of unjust discrimination against homosexual persons, as well as persons of a particular race, but it is not an unjust form of discrimination to maintain that any couple who cannot engage in the activity intrinsically ordered to procreation is, thereby, incapable of being married. In order to carry out our sincere and noble intention to avoid unjust discrimination, we must first discriminate what is essential from what is inessential. If we fail to do that, then we have lost touch with reality, and we will, unfortunately, suffer the consequences.
Those who fail to recognize that procreation is an essential end of marriage, and that being of the opposite sex is, thus, essential to being a married couple, have lost touch with reality. Having misunderstood the nature of marriage, they will logically conclude that defining marriage as the union of one man and one woman is an unjust form of discrimination. They will also then typically be inclined to go even further and call into question the subjective motives of those who philosophically oppose them in defense of the traditional definition of marriage. This tendency is very apparent in the majority opinion of U.S. v. Windsor, the recent U.S. Supreme Court decision to strike down part of the 1996 Defense of Marriage Act (DOMA) as unconstitutional.
What exactly was at stake in U.S. v. Windsor? Section 3 of DOMA had invoked the traditional concept of marriage and defined it as “a legal union between one man and one woman as husband and wife.” Section 3 had also defined “spouse” as “a person of the opposite sex who is a husband or a wife.” DOMA was an Act of Congress that used the traditional definition of marriage specifically for the purposes of granting or withholding federal benefits. It did not require any states to adopt its definition of marriage. Beginning in 2003, 13 states subsequently decided to abandon the traditional definition and to legalize same-sex marriage.
Because of DOMA, the federal government was not required to grant the federal benefits of marriage to any same-sex couples who became legally married in these 13 states. Many same-sex couples were thus regarded as married for state purposes, but were simultaneously regarded as unmarried for federal purposes. People soon began to argue that this inconsistency unjustly imposed “a disadvantage, a separate status, and a stigma” on such couples, and that the authority of individual states to decide who should receive the recognition of marriage was being undermined. By a 5-4 majority, the U.S. Supreme Court ruled that “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” The majority opinion was that DOMA’s traditional definition of marriage was a violation of the right to equal liberty under due process of law. As a result, the federal government is now required to grant the benefits of marriage to every couple who is recognized as married according to the law of an individual state, regardless of whether that couple is of the opposite sex. Individual states, however, remain free to define marriage as they see fit.
Behind this decision, there is a particular line of interpretation of the Fifth and 14th Amendments. The Supreme Court has occasionally taken the initiative to discern and defend certain rights thought to be implicit in the constitutional concept of liberty. Only under certain conditions does the Court regard Congress and individual states free to enact and enforce laws which classify certain persons, and restrict their freedom. Any law that does not restrict “a right that is deeply rooted in the Nation’s history and tradition” is usually acceptable to the Court so long as it is rationally related to a legitimate government interest. But whenever a law does in fact restrict “a right that is deeply rooted in the Nation’s history and tradition,” then that law is subjected to a strict scrutiny and is rejected as unconstitutional if it seems to involve “a suspect or quasi-suspect classification.” This method of interpretation has been very effective in the area of social justice, but many people, including some Supreme Court justices, believe that in the judicial defense of such implicit rights, the authority of the legislative branch of government has been usurped.
The U.S. Conference of Catholic Bishops submitted an amicus brief to the Supreme Court last January, arguing that “there is no fundamental right to marry a person of the same sex,” and that the Court has never regarded classifications based on sexual conduct or any other behavioral characteristics as “suspect or quasi-suspect.” The U.S. Catholic Bishops very clearly and reasonably argued that Section 3 of DOMA was rational and constitutional. Several other amicus briefs argued for the same conclusion from various perspectives and for similar reasons. But five of the justices in U.S. v. Windsor disagreed with this conclusion, even though the legal right to same-sex marriage is obviously a very recent social construct that is not in any way rooted in our nation’s history and tradition. Indeed, this legal right has been created only in the last 10 years and only in 13 states. Most states still legally restrict marriage to opposite-sex couples, and in most instances by amendments to state constitutions.
The majority opinion in U.S. v. Windsor seems shocking in its innovation and departure from precedent. Justice Scalia especially stresses this point in his dissent. The majority opinion ignores the objective and legitimate federal interests offered for DOMA’s traditional definition of marriage and takes advantage of the bench to speculate about, and cast suspicion on, the subjective motives behind the definition, condemning them as bigoted and harmful. It is important to recognize that the fundamental question here is not about the conscious motives behind DOMA. The majority alleges that Section 3 of DOMA was an intellectual and moral error. They, therefore, offer a theory to explain how that error was made, and how injustice was legalized on the federal level, even if those who enacted and enforced the federal law were unconscious of the injustice being inflicted on a segment of the population. The majority does not hesitate to propose that this theory is the best available, and most probable explanation, of Section 3 of DOMA, and that it, therefore, had to be condemned and struck down. We should expect that many people will uncritically accept this Supreme Court decision, and invalidly conclude that Section 3 of DOMA lacked a rational and legitimate foundation. And some of those who were involved in the enactment and enforcement of Section 3 of DOMA will also question their own subjective motivations.
As emphasized by Justice Alito in his dissent, however, the ultimate reason given for the majority opinion is that the definition of marriage, that was invoked by Congress in DOMA for federal purposes, now involves the exclusion of “a class of persons deemed by a state entitled to recognition and protection to enhance their own liberty” and “imposes a disability on the class by refusing to acknowledge a status the state finds to be dignified and proper.” The decision seems to establish nothing more than yet another judicial restriction on the power of Congress to enact and enforce laws, even for federal purposes.
The dissenting justices maintain that the majority did not prove that any injustice was done to same-sex couples by DOMA’s traditional definition of marriage. These justices also point out that the majority did not prove that the subjective motives behind Section 3 of DOMA were actually bigoted. Of course, if there were no rational and legitimate reasons for the federal government to distinguish between same-sex couples and opposite-sex couples in the recognition of marriage, then DOMA’s definition would certainly have been arbitrary and unjust. But as the dissenting justices cogently argue, there are, in fact, rational and legitimate reasons for the federal government to avoid recognizing same-sex unions as marriages, even when individual states have chosen to recognize them as such. The main reason why any federal or state legal system ought to avoid recognizing same-sex unions as marriages is that a legal definition ought to correspond to the intrinsic nature of the relationship, activity, or entity being defined.
A voluntary personal union is a true marriage only if all the essential ends of marriage are intended, at least implicitly. The Catholic faith and human reason both inform us that the male-female unitive activity, naturally ordered to the procreation of children, is an essential end of marriage. Friendship is also an essential end of marriage, but any couple who is incapable of engaging in the male-female unitive activity, naturally ordered to procreation, is incapable of entering the state of marriage. Two persons of the same sex can enter into a relationship with each other that is a permanent friendship, but they cannot enter into a relationship with each other that is a true marriage. To pretend that such a friendship is a true marriage is not compassionate, and actually does more harm than good. The Catholic faith and human reason both inform us that everyone who is unmarried is morally called to the austerity of chastity, difficult though it often is.
When two groups disagree on how to define an essence, they must necessarily regard each other as committing an injustice, at least intellectually, with respect to the nature in question. In moral reasoning, whenever a basic definition fails to do justice to the nature of the reality it defines, distinctions which are truly just and fair immediately begin to appear unjust and unfair; and distinctions which are truly unjust and unfair immediately begin to appear just and fair. Everything hangs on the definition, and the definition is either right or wrong. There is no neutral position in this debate. Those who choose not to defend the traditional definition of marriage will necessarily defend some other definition, if only by default. As our culture falls into yet another pit of confusion, if we want to stay in touch with the essence of marriage, our only coherent option is to define it carefully, and then act accordingly, even when we face condemnation.