Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, February 18, 2010

Koppelman on SSM

MoJers might be interested in Andy Koppelman's new paper, Careful With That Gun: Lee, George, Wax, and Geach on Gay Rights and Same-Sex Marriage.  Here is the abstract:

Many Americans think that homosexual sex is morally wrong and oppose same-sex marriage. Philosophers trying to defend these views have relied on two strategies. One is to claim that such sex is wrong irrespective of consequences: there is something intrinsic to sex that makes it only licit when it takes place within a heterosexual marriage (in which there is no contraception or possibility of divorce). Patrick Lee and Robert P. George have developed and clarified this claim. The second strategy focuses on consequences: the baleful effects on heterosexual families of societal tolerance for homosexuality. Amy Wax (who is not a clear opponent of same-sex marriage, but who is worried by it) has tried to array evidence to support the second. Mary Geach has developed a novel hybrid, relying on the second argument to support the first one. Both strategies fail. The first cannot show that the intrinsic goodness of sex is at once (a) derived from its reproductive character and (b) present in the coitus of married couples who know themselves to be infertile, but not present in any sex act other than heterosexual marital coitus. As for evidence of bad consequences of tolerance of homosexuality, the evidence is all the other way.

There is much to discuss in the paper, including Koppelman's response to the argument that sexual intercourse between a man and woman known to be infertile is still "oriented to procreation."  He writes:

My action can make sense as part of a process, can take its meaning from its role in facilitating that process, only if the process is known to be capable of completion. This is true even if the success of the project is unlikely. But it is not true if success is impossible.

A surgeon trying to save the life of a gravely sick patient is engaged in the practice of medicine even if the patient‟s death is almost certain. No guarantee of success is necessary. (Little human endeavor comes with a guarantee of success.) So long as the patient is alive and the surgery even marginally increases the likelihood of the patient's survival, then the surgeon's behavior makes perfect sense. He is engaged in a medical-type act. Whether it is a medical-type act now cannot depend on events that occur only later, such as the patient's recovery. But what would we think if the surgeon performed exactly the same actions, involving the same bodily motions, when the patient is already dead?

Koppelman is always a good read because he takes his opponents' arguments seriously.  If you're interested in these issues, you should read his paper.  And of course you should read George, Lee, and Finnis.  And then engage the question: does it make sense to say that sexual intercourse between a man and woman known to be infertile is "oriented to procreation?"

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Virtually all couples today render themselves infertile, or effectively infertile, by taking pills or having surgeries. When they are fertile, they can abort the babies they produce. It is virtually impossible to argue today that procreative sex is a constitutive element of marriage because there is no communal expectation that married couples will be engaged in procreative sex at all. Excluding gays from marriage on procreative grounds is a losing argument if we take modern marriage as normative.

Posted by: BMW | Feb 20, 2010 10:36:38 AM