Academic journal article Texas Review of Law & Politics

Natural Law, Natural Rights, and Same-Sex Civil Marriage: Do Same-Sex Couples Have a Natural Right to Be Married?

Academic journal article Texas Review of Law & Politics

Natural Law, Natural Rights, and Same-Sex Civil Marriage: Do Same-Sex Couples Have a Natural Right to Be Married?

Article excerpt

In contemporary liberal societies, those who want to enact new legislation that will coerce fellow citizens to act or refrain from acting bear the burden to justify their laws.1 Legislation that recognizes same-sex civil marriage is no different than any other laws. This is especially true because there is a strong coercive element that accompanies the legalization of same-sex civil marriages. That is, the government's endorsement of same-sex civil marriage entails the enforcement of this legislation. In this case, same-sex civil marriage advocates can use the government as a tool to force those who would not otherwise do so to believe or act as though same-sex civil marriage is the same thing as traditional marriage. At this point in history, it is clear that many do not want to accept same-sex civil marriage as an authentic marriage or as an acceptable lifestyle.2

It is my claim that the same-sex civil marriage advocates bear a heavy burden to prove that same-sex civil marriage is actually a natural marriage. If same-sex civil marriage is not a natural marriage, then there can be no natural right to same-sex civil marriage. The same-sex civil marriage advocate must prove that there is an underlying principle with the moral force to justify the government's enforcement of the recognition of same-sex civil marriage. If so, this commands a change in legislation in order to protect this right. I argue that only the natural moral law can grant this natural right. It follows, therefore, that there should be legislation to secure the right of same-sex civil marriage only if there is a natural right to it. Further, there can be a natural right to same-sex civil marriage only if there is actually such a thing as same-sex civil marriage that has an ontological status of existing naturally. If same-sex civil marriage advocates claim that same-sex couples have a right to marry, then they cannot mean that there is a posited right, because only a few states have the legal right written into the books.3 Thus, the claim that there is a right to same-sex civil marriage must mean that there is a naturally existing right that society ought to recognize and defend. Is this true?

I. ONLY NATURAL MORAL LAW CREATES NATURAL RIGHTS

The American Founding Fathers believed in natural law.4 They justified going to war on the grounds of the natural moral law.5 They further justified abandoning the Articles of Confederation by appealing to the natural law "in Order to form a more perfect Union."6 The Framers of the Constitution wrote the Ninth Amendment in order to defend the existence of unwritten natural rights.7 In the Declaration of Independence, Thomas Jefferson referenced the "Laws of Nature and of Nature's God," and noted that all men are "endowed by their Creator with certain unalienable Rights."8 This, however, is not the argument that same-sex marriage advocates use. We must then ask: what is this natural law of which I speak?

Man discovers natural law as a part of reality. That is, man does not create the laws of nature. Man may deny the laws of nature or ignore them, but he does so at his own peril. Natural laws of this sort do not stir much debate; they are nearly universally accepted as fact. For example, the force of gravity is part of the laws of nature. Mankind did not posit this law into existence, but instead lives according to it. One may choose to deny the existence of gravity, but he may not escape the consequences of his choices, because the force of gravity is part of the laws of nature. Although natural moral laws are quite controversial, they follow the same basic principle as the law of gravity. That is, the natural moral law is part of reality, discoverable by mankind, and one either lives within it or denies it at his own peril. Randy Barnett argues that the complexity and controversy surrounding these moral laws of nature do not make them any less real than the laws of nature that govern engineering and architecture. …

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