The question of same-sex marriage concerns every morally sensitive citizen. And so it is no wonder that it has been the subject of debate everywhere, among politicians and jurists, scholars and intellectuals.
Professor Martha Nussbaum and I have locked swords over this issue on many occasions, such as in Sexual Orientation and Human Rights in American Religious Discourse. Her recent essay in the California Law Review entitled “A Right To Marry?” provides a welcome opportunity to return to this hotly debated question, and sharpen the points of difference between us….
She draws upon precedents that seem to be already changing the legal definition of marriage from a union of a man and woman into the union of two persons, irrespective of their sex. Conversely, I want to change or undo those very precedents that have led to a situation where what might be called “the traditional Western definition of marriage” can now be seriously and powerfully challenged.
Novak’s argument regarding the state’s responsibility to protect the “natural rights of children” is a powerful one, and does indeed (it seems to me) cut against the state’s redefinition of sex-sex unions as “marriage”. As he himself notes, however, it requires rethinking a number of current practices beyond same-sex “marriage” as well, in ways that may make many uncomfortable. (This includes some forms of artificial fertilization.) Meanwhile, one can note Novak’s acceptance — on a “secular” basis — of same-sex “civil unions”. This too is a challenge to certain common ways of thinking among more conservative Christians.