The new natural law theory and the question of same-sex marriage
In this dissertation I engage the new natural law argument that homosexual acts cannot be marital acts. I address two important disputes within contemporary philosophy. One is the issue of whether or not the new natural law approach is an authentic natural law approach. The other is whether or not this approach is adequate to the task of calling into question the arguments of those who advocate that persons of the same sex be given the legal right to marry one another. I argue further that these two disputes are related, that is, that the question of whether the new natural law theory is really a natural law theory has a direct impact on the question of its adequacy in dealing with the question of same-sex marriage. ^ The core of my argument is that the lack of an explicit metaphysics undermines both the natural law argument and the arguments of some who advocate same-sex marriage. I argue that the new natural law view ought not be taken lightly, however, since the intuition that it depends upon, namely, that the union-effecting nature of heterosexual intercourse is essential to the meaning of marriage, has wide support. But while this intuition may indeed be a recognition of a moral truth, the new natural lawyers do not show this to be the case. I then address the fact that many arguments for same-sex marriage depend upon the presupposition that sexual activity in general is in some sense union-effecting. I suggest that this presupposition is unwarranted and that it depends upon an acceptance and transference of the union-effecting meaning that the new natural lawyers say is intrinsic only to heterosexual intercourse and not to other kinds of sexual acts. In my conclusion I offer some suggestions for future work on this issue, specifically in the area of the metaphysics, or the nature, of sexual acts. ^
Anthony Emile Giampietro,
"The new natural law theory and the question of same-sex marriage"
(January 1, 2003).
ETD Collection for Fordham University.