Originally published in the Florida Student Philosophy Blog
In the article “Gay Marriage” in Philosophy and Sex Frederick Elliston, dissects several arguments against gay marriage. I would like to revisit a few of them in this essay, and will begin with the argument from shared morality. Elliston describes two arguments of Devlin, an “a posteriori argument to establish that the law is and ought to be based on society’s morals”, and an a priori argument that describes “society as a group of individuals bound together by their shared values.” Here, in Devlin’s own words:
“The law must protect … the institutions and the community of ideas, political and moral, without which people cannot live together. Society cannot ignore the morality of the individual any more than it can his loyalty; it flourishes on both and without either it dies.” – Lord Patrick Devlin
Elliston argues that “if opposition to gay marriage were unanimous then society’s present stance on homosexuality would be warranted.” But, since such uniformity cannot be found in today’s pluralistic society, society’s present stance [I assume he means the laws] prohibiting homosexual marriage are unwarranted.
I believe that this proves Devlin’s point exactly. Society is a group of individuals living in close communion and sharing similar cultural, religious, political, philosophical ideas. A “quilting” society meets to quilt and to talk about quilting. “High” society dresses for dinner, and has cultural or charitable events and coming parties out at the club. Low society goes uptown to jazz joints to smoke gage and listen to bebop. The members of a society hold certain basic presumptions in common. When Elliston is talking about society, he must be referring to that group of people who have an interest in a government created “of the people, by the people, and for the people.” By admitting that it no longer has a consensus on something as basic as what constitutes a marriage, is to say that it must be an extremely unstable one in danger of ruin.
“Providence has been pleased to give this one connected country to one united people – a people descended from the same ancestors, speaking the same language, professing the same religion attached to the same principles of government, very similar in their manners and customs” John Jay – Federalist #2
This quote by John Jay, fifth president of the Continental Congress, first Chief Justice of the Supreme Court, and Secretary of State under the Articles of Confederation, points up clearly the reason for the problems that the American republic will face in the next century around divisive issues like gay marriage. When I enlisted in the United States Army I swore to “support the constitution of the United States” and “to bear true allegiance to the United States of America, to serve them honestly and faithfully, against all their enemies or opposers whatsoever, and to observe and obey the orders of the President of the United States of America, and the orders of the officers appointed over me.” Today, I am less enthusiastic about a republic that supports, among other stupid and horrific policies, wars of containment, the killing of infants in the womb, and the practice of men having anal sex with other men.  Should the republic continue in this manner, I must side with Devlin, that it is likely to eventually falter, sinking into the sea of history. When it does, I hope that I will be there to throw it an anvil. As I say this, I do not mean to say that I am beyond reproach or not capable of evil acts, because I am, certainly. What I am saying is that I do not want to be part of a society that upholds what I view as evil and calls it good and do not much care if it survives. We all like being with people who act the way we do, and think the way we do, but it is difficult to make the case that we have a right to impose our will upon other factions in society who do not agree with us by discriminating against them, legislating against them, or finally making war against them.
I have two grown sons, and here I would like to offer a word about the welfare of children mentioned by Elliston. I  want my sons to marry women who will have many children so that my house and my name may increase. I have at present only one grandson and I want the same future for him. My experience tells me that homosexuality is a choice, a learned behavior. I also know that with very few exceptions all sexual men seduce, because that is the easiest way to have sexual intercourse, if only with your wife. I know that homosexual men seduce younger men, because I have been a younger man and have met homosexual men who have tried to seduce me. They do it for the same reason older men and women seduce younger women and men; again because it is easier that way. I am not a homophobe; homosexuality does not scare me. Rather I am a homogynist, in that I am repulsed by homosexuality. I do not want my grandson to know about homosexuality, I do not want him to hear about homosexuality, or see it in the media. I do not want him to meet any homosexuals, or play with children of homosexual guardians. The first Amendment acknowledges our freedom of association and by extension, disassociation. Homosexual couples are not a welcome part of my close society any more than a couple openly practicing adultery or publicly fornicating during Carnivale would be. This is because all three practices, to the extent that they are tolerated or approved of serve to disrespect and weaken the institution of marriage and the necessity of adherence to its practice for the benefit of society. All men and women have the right to be treated civilly and equally before the law. But they do not have the right to universal approval or tolerance for their bad acts.
Elliston argues against the argument from religion, and begins by quoting Pope Paul’s 1968 papal encyclical:
“Sex within marriage is acceptable and proper only insofar as each conjugal act serves two simultaneous purposes: first to unit the husband and wife in bonds of love and affection, and second to provide for the creation and transmission of new life.”
Ergo, no homosexuality, fellatio, or cunnilingus either. Elliston rightly argues that “the inseparability premise is unsupported by rational argument and relies instead on religious fiat that cannot be defended by an appeal to scriptures… [and that] no sect has the right to impose its beliefs on others.”
While I agree with Elliston’s argument that the inseparability premise is unsupported, I reject his narrow attack on religious arguments in general. To begin with, the conservative elements within Judaism, Islam, and Christendom (of which there are many varied denominations aside from the Catholics) agree that homosexuality is prohibited, not by any specific religion but by the Living, Omnipotent, God of the Universe. This is a statement that is clearly supported by both the Old and New Testaments, and if you must, also by the Qur’an. Happily, there are found no such clear prohibitions (that I am aware of) against fellatio or cunnilingus within the bounds of marriage.
This brings us to the problem that I mention in my opening paragraphs; that of one faction imposing its will upon others. I think we must decide first if the construct of marriage is fundamental to the essence of society. For if we cannot be agreed on the most basic assumptions upon which our society operates, the case might be made that the society no longer exists and that we are in, or rapidly approaching, a state of anarchy, a sure precursor to civil war.
Elliston states that the doctrine of separation of church and state prohibits the “‘simplistic’ inference of that which is sinful is illegal.” Mr. Elliston may not like this concept but I am sure he must fail in his attempt to deny it. Separation of church and state is by no means separation of God and state. Every truly devout person, Jew, Christian, or Muslim, knows the names of Shadrach, Meshach and Abednego, who, along with the Apostles, insisted that, “We must obey God rather than men!”, and were willing to die rather than to fail in that oath. While I would hesitate to add myself to that number, I am confident that there are yet very many men like them, who still live among us as citizens, civil servants, and perhaps even as politicians. The Christians among them make the claim that the Holy Spirit of the Mighty God indwells them. The “state” is not an inanimate machine, nor is it merely a collection of written laws and constitution. Rather, it is an amalgamation of these, plus all its citizens who include those previously described. Therefore, God is always very much a part of the state whether Mr. Elliston likes it or not.
As for the “‘simplistic’ inference of that which is sinful is illegal.” I must again disagree, recalling that the very foundation of our constitution and laws are in great part based on the work of Sir William Blackstone.
“Blackstone taught that man is created by God and granted fundamental rights by God. Man’s law must be based on God’s law. Our Founding Fathers referred to Blackstone more than to any other English or American authority. Blackstone’s great work, Commentaries on the Laws of England, was basic to the U. S. Constitution. This work was the sold more copies in America than in England and was a basic textbook of America’s early lawyers.”
In the Declaration of Independence, Thomas Jefferson speaks of “the Laws of Nature and of Nature’s God” and remarks that it is self-evident that men “are endowed by their Creator with certain unalienable Rights.” Both Jefferson and Blackstone were not men who carelessly bandied about words. When they used the word “God”, it was not merely as a political platitude to pacify the polis, the way some politicians might currently employ it. Blackstone and Jefferson really meant what they said. This is proof enough that the original framework of the republic easily endorses the concept “that which is sinful is illegal”, even if our current laws are not vetted to scripture, and our Constitution does not contain the word “God.” Mr. Elliston can fairly make the argument that this should not be so, but then that would not be the republic to which I swore allegiance.
I will conclude by answering Elliston’s objections to using the historical function of monogamy as an argument against gay marriage. Elliston remarks that marriages have been entered into for a variety of reasons but does admit that procreation and the desire to create a safe environment in which to raise children is one of most prevalent. Some might argue that this is also the original reason.
Caveman: “Hello, my name is Roman Hands. What’s yours?”
Neanderthal: “Ben Dover. Roman, meet my wife, Eileen.”
Neanderthess: “Eileen Dover, Hi. These are our kids, Hanna and Tip.”
Neanderthal: “Touch them and I’ll kill you, Roman.”
Caveman: “Hey, No problem, Ben.”
Elliston argues that homosexuals should not be prevented from marriage simply because they are incapable of having children, because many heterosexual couples who are allowed to marry do not desire to have children, or are incapable of it because of various physiological reasons.
Dr. Alan Keyes is a leading voice of conservative opposition to gay marriage believing it to be “the destruction of the fundamental idea of marriage as a social institution.” Keyes does not view marriage as a legal definition subject to change, but as “society’s recognition of an institution that predates civil society, predates government, predates positive law, and that is in fact the basis on which people come into civil society.” Keyes holds that marriage is a natural phenomenon and says that it:
“is the basis in fact for the belonging of parents to children and children to parents…Civil society comes into existence to secure our belongings, among other things, and if they disrespect that institution through which this sense of belonging is made possible, they are destroying the basis of civilization… it destroys the very concept of marriage, and by destroying the very concept of marriage, it destroys the possibility of effective respect for that institution. Now, if this society is going to retreat from respect for that fundamental institution, it [the society itself] will be dissolved”.
His argument runs as follows:
- Marriage has been instituted for the purposes of procreation and for the subsequent nurturing of the life created within the secure and loving confines of a family. To affect this, an attitude of commitment and self-sacrifice are required.
- Because the homosexual relationship is based on hedonistic pleasure rather than on procreation, and because two members of the same sex are essentially unable to create children, they cannot logically marry nor even say that they engage in sexual relations.
- The counter argument that some heterosexual couples also do not have children for various reasons is ineffective because these couples are only incidentally childless, being able in principle able to have children.
- Couples who adopt or use surrogate mothers to have children are only attempting to duplicate the essence of marriage, which is the joining of a man and a woman as one flesh to create new flesh that is uniquely a part of each of them. This would exclude homosexual couples.
- “If we embrace homosexuality as a proper basis for marriage, we are saying that it is possible to have a marriage state that in principle excludes procreation and is based simply on the premise of selfish hedonism. This is unacceptable.” 
Unacceptable logically and ultimately politically. To accept homosexual marriage is to accept the idea that marriage is essentially based on self-gratification rather than on self-sacrifice, that pleasure received rather than love given is the standard on which it will be measured.
It is our intent in America to have a free and open society with as few restrictions as possible. No one can deny that homosexual couples are capable of mutual love and affection, loyalty and self-sacrifice. No one can deny that they have civil rights and should have free and ready access to means that will allow them to contract together, own property, transfer assets, have power of attorney, and the ability to act as surrogates for each other, all of which are readily available to them now. There is no real argument that can be made that other ancillary privileges, such as being able to be listed as a dependent on a tax form or a health insurance policy should not be made available. But for a homosexual couple to say that they are husband and wife is to make a mockery of that singular and honorable institution. The state that recognizes such unions must certainly run the risk of no longer being recognized itself by a sizable, sober, and determined segment of society. Perhaps in this era of vigorous separation of church and state, it is time to separate marriage, an institution that predates government, from the state’s influence as well.
 Edited by Robert Baker and Frederick Elliston (Buffalo, New York,: Prometheus Books, 1984) pp. 146 – 166  Murphy, Jeffrie G.. Legal Moralism and Liberalism. Internet website. http://homepages.law.asu.edu/~jeffriem/legalmoralisma.htm  Loyalty oath, United States Army.  Would you believe that I was asked to change the phrase I originally used? It seemed to me that the unvarnished truth, the clearest representation of the reality that we are discussing, should not have been glossed over by euphemism.  I? Aye, I ! Not the state, not the society, but it is my personal will as a ruler in my house that it should be so. Symposium anyone? I’ll bring the Chablis!
 Remember, you read it here first!
 In this country, under this government, the God given right.
Such as having sex with your spouse every day and twice on Sunday during the Lenten season might be if you were a Catholic, although I am not quite sure, so ask your priest.
 Dan 3:16-18
 Acts 5:29
 Armstrong, PhD, Virginia. “Sir William Blackstone.” Internet website. http://www.blackstoneinstitute.org/sirwilliamblackstone.html
 Keyes has a Ph.D. in government from Harvard and wrote his dissertation on constitutional theory. He is former ambassador to the United Nations Economic and Social Council, Assistant Secretary of State for International Organizations, a Republican candidate for president and senate, and was Interim President of Alabama A&M University.
 TV interview with Hannity & Colmes on April 22, 2004. Internet website. http://www.renewamerica.us/archives/transcript.php?id=301
 Mostert, Mary. Alan Keyes teaches sex education lesson to homosexual interviewer Sept 7, 2004. Internet website. http://www.keyesforsenate.com/news/040907mostert.php
-Louis William Rose