Thomas More Institute

As MPs enter the House of Commons this week the press is flush with arguments for and against the proposed new legislation on ‘same-sex marriage’. There has been much talk of whether or not there is public support for this Bill. But, in spite of multiple surveys and polls commissioned across the political, social and moral spectrum it is impossible to claim any democratic mandate when the electorate has never been given an opportunity to vote with such a policy on any party’s slate.

This is emphatically not, however, simply a matter of democratic mandate. After all, a majority – whatever its mandate – has no right to tyrannise a minority. If it could be shown that homosexual couples really had a basic human right to marry, no democratic mandate against it could ever justify a government that pushed through a vote violating it.

Human rights, like morality, are not simply a matter of consensus. They entail also an appeal to a kind of ‘higher’ law. If advocates and opponents of gay marriage are to justify characterisation of this issue as one of rights they must recognise such a position requires appeal to a universal law that precedes legislation, one that is in some way embedded in human nature itself. In tandem with moral philosophers, theologians and serious thinkers they must make this ‘higher’ law intelligible to politicians, civil officials and the electorate at large so that legislation may be enacted in a coherent, rational and humane way.

Natural Law theory has long taken such an approach to morality. In the words of Prof. Robert George, ‘Natural Law begins with experience, but it does not stop or even tarry there’. It is intelligible to all because it draws on the experiences of all, beginning with observations of human beings and the natural world, and proceeding to give a rational account of how they relate and fit together. Crucially it takes the world and humans as they appear and makes no attempt to identify hidden motives that drive a person’s ‘true’ intentions. Nor does it privilege a person’s will over the body, the body over the mind, or the mind over the will. It takes us as whole and seeks to make connections between our faculties and characteristics intelligible, rational, sustainable and, ultimately, more fully human. Since its starting point is a universal conception of human nature it is possible for Natural Law to provide foundations for a universal morality and for the human rights that prevent tyranny by a majority over a minority.

To claim this is not to argue in general against democratic forms of government or popular consensus, but rationality, coherence and intelligibility are key components of any such theory and this makes it unresponsive to whims of fashion and passing sentiments.

While advocates of gay marriage have carefully portrayed theirs as a cause of basic rights – one justified even in the face of ‘bigotry’ and popular opposition – they have manifestly failed to link it to any comprehensive account of human nature. There has been, of course, some emphasis on love, property and society, but the biological and procreative elements have of necessity been played down. It remains to be seen how the House of Commons will react in the end to a conception of marriage that explicitly adopts unequal definitions of marital consummation and of infidelity in treating of heterosexual and homosexual couples.

For those who hold to a traditional conjugal definition of marriage this Bill is unintelligible. It requires that we adopt a notion of marriage that separates not only sex and procreation, but even love and the human body. It atomises the human person, and with it the institution of marriage. For all of David Cameron’s talk about how this Bill will help to build up society by strengthening marriage it is difficult to see how this could ever be the case.