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POLT 309

Spring 2015
Yuanlong Liu

Same-Sex Marriage: A Jurisprudence Debate

People in our society perceive same sex marriage in different ways. Many proponents
believe that its legislation promotes general equality among citizens. They tend to attribute it to
another progress of the civil rights movement. Others hold that homosexual orientation violates
human nature and thus should be prohibited by government. Some of them are willing to accept
homosexuality itself or homosexual cohabitation, but not marriage.
The heated debate on same sex marriage evokes many discussions on whether
homosexuals should enjoy the equal access. But these debates tend to focus merely on an
extension of individual rights per se. Instead, the legalization of same sex marriage as a testing
instrument, may also be a constructive reflection on rival views of jurisprudence, which is the
foundational element of human society and its justice system.
This essay explores and examines the philosophical grounds that oppose and support
same sex marriage. Namely they are natural law theory against it, and legal positivism permitting
it. Legal positivism is the idea that laws are established only with respect to references to others
laws. Natural law theory thus makes the claim, that positivism, without any moral content, is
likely to produce evil laws. The jurisprudence debate extends its battlefield to same sex marriage
as the empirical case.

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The first half of this essay introduces several basic arguments of natural law theory and
its application on same sex marriage. Due to the ontological characteristic of natural law theory,
this essay suggests that natural theory may be interpreted in a way promoting same sex marriage.
The second half of this essay, looking into legal positivism as a comparison with natural law
theory, argues that positivism offers a more compelling philosophy of law, and its concession to
same sex marriage does not involve a slippery slope to the evilness of positive law.

Conjugal Marriage and the Natural Law Theory


A typical rejection of same sex marriage is to argue that homosexuality fails to
correspond with the basic definition of marriage; namely, first that the genital union of
homosexual couples can not actualize the martial good; and second, that homosexual intercourse
instead of unifying the couple, intensifies their separate individuality and thus is unnatural to
marriage. Natural law theorists, who believe that the content of legal norms should always reflect
moral values held by all societal members, form the alliance with such criticism on same sex
marriage.
However, such reasoning rests upon how one defines marriage, and whether his/her
definition is applicable as a functional moral value for the society at present, from natural law
theorys own point of view. In other words, Whether gay marriage makes sense, and whether
straight marriage makes sense, depends on what marriage is actually for.1
Contemporary society endorses diversity and plurality among citizens, which yields
varied definitions of marriage. As Jonathan Rauch points out, today marriage is almost entirely
1

Page 170, For Better or Worse? Jonathan Rauch, selected from Same Sex Marriage, Pro &
Con A Reader, edited by Andrew Sullivan, 2004

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a voluntary arrangement whose contents are up to the people making the deal2. Although
marriage appears to be a social institution, each of which is equally certified by government, and
each of which constitutes the basic social unit as a family, married couples may have their own
definition of marriage that conflicts with others view. In general, there are two types of
marriage, the conjugal version and the revisionist version.
The conjugal definition of marriage, mostly referred by natural law theorists, contends
that marriage involves both the mind and the body. The civil union, as a result of affection,
should fulfill the purpose of bodily faculties assigned by nature. In particular, what the conjugal
marriage manifests, as two spouses of different sexuality are put together, is the procreative
significance3 between heterosexual couples whose organs are able to reproduce, or at least acts
and actualizations of the reproductive kind4.
The ability of procreation, a natural element of human, unites the spouses biologically as
a two-in-one-flesh, and more importantly achieves the natural ends of human being. Further, This
bodily union can actualize and allow them to experience their real common good, parenthood
and friendship5, since the genital act is procreative in terms of sexuality, and unitive in terms of
emotional feelings.
As a result, homosexual couples entering into the civil union are often asked to consider,
that whether or not the conjugal marriage of heterosexual couples is applicable to them.
Homosexuals are not able to procreate, nor differ in sexuality. Their union fails to fulfill what
2

Page 171, Sullivan

Page 10, Law, Morality and Sexual Orientation, John Finnis

Page 10, Finnis

Page 10, Finnis

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marriage naturally is. Thus, the biological constraint deprives them of the ability to pursue
intrinsic marital goods. The intercourse between two homosexual spouses is simply the attempt
for pleasure, instead of attached any moral values of marriage.
Thus, the sexual acts of homosexual couples, as opposed to the naturally martial good, is
nothing more than mutual masturbation, in which one can only feel the strengthened
individuality and separateness rather than a unified two-in-one-flesh. And because of this
masturbatory feature, Finnis quotes Thomas Aquinas and contends, that (if I am) choosing this
act of intercourse with my spouse not for the sake of pleasurably actualizing and expressing
martial commitment but solely for pleasure6, my spouse can therefore be substituted by anyone
who has normal genital function. The sense of exclusive commitment as well as giving birth to a
child, as natural characteristics of marriage are both missing. John Finnis concludes that
homosexual orientation is immoral and out of line with human nature7.
But why would natural law theorists so stick to procreation and sexual difference, when
defining marriage and its intrinsic goods? The relevant philosophical ground can not be
identified without looking into Aristotles teleological conception of nature. If the jurisprudence
of natural law can still be prevalent today, then there remains no need to question the ineligibility
of homosexual marriage.
Given Platos dualism8 in which the world is divided into ideas and substance, Aristotle
claims that constituent parts of the natural universe were interpreted as tending towards the

Page 14, Finnis

Page 16, Finnis

Page 12, General Theory of Law and State, Hans Kelsen, Harvard University Press, 1945

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actualization of the ends which defined their essential reality.9 In other words, nature has
engineered its traits as human character, which we ought to follow. For instance, the genital
union of heterosexual spouses leads to procreation, a very important function of human being, on
which the existence of the entire species is dependent.
Therefore, only the kind of marriage between a man and a woman can be natural. For a
man. finding a woman to marry becomes one of his designated natural ends. To fulfill the ends
essential to ones rational nature, through an active participation in the political realm of laws
and institution10, is ones moral duty in his/her life. Further, because one can only achieve his/
her teleos by means of politics, state exercised a moral authority over the citizens11 in a way
such that each person is coordinated to purse his own teleos harmoniously. As a result, the
Aristotelian justice is treating equals equally12. The one born to be capable of swimming fast,
if teleological justice upholds, is honored to be a professional swimmer. The one born to be
capable of swimming fast will be morally dishonored if he chooses to be a manager as his
profession, only because he wishes so, or he enjoys being a manager.
Likewise, human who born to be a male must not consider to marry another male, since
such behavior violates nature and the task of nature, procreation. Given the state has a moral
authority envisioning how well citizens are achieving their own assignments, the teleos for the
government is to enforce the natural distribution of profession for unwilling citizens. In

Page 5, The Defense of Natural Law, Charles Covell, St. Martins Press, 1992

10

Page 6, Covell

11

Page 6, Covell

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Page 5, Covell

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particular, laws should stipulate that marriage is only between a man and a woman, as a way to
reflect the actualization of moral values and natural ends.
Based on teleological distribution of justice, Thomas Aquinas and John Finnis further
developed a more subtle theory of natural law. In short, they reinforced the emphasis on the
necessary causality between justice and morality. For Aquinas, natural law represents part of the
eternal law which was discovered by human reason, and which expresses Gods conception of
the ultimate purpose; for Finnis, legal obligation could be understood as a moral obligation13,
in order to secure human goods by law.
Finnis does not entirely follow the Aristotelian teleological distribution when defining his
theory of justice. He establishes a universal principle, with which individuals are able to exercise
their own will given relative freedom. Specifically, Finnis argues that the theory of natural law
hinges on several basic forms of human goods. They are life, knowledge, play, aesthetic
experience, sociability, practical reasonableness and religion. Primarily, sociability and practical
reasonableness are the two variables that are particularly concerned with same sex marriage.
These measures (life, knowledge, play, aesthetic experience, sociability, practical
reasonableness and religion) construe the natural ends one is able to choose. For instance,
committing suicide may maximize ones individual utility under extreme health condition, but
he/she must not do so because life, as a basic form of good, prohibits him, as doing so will
violate a given moral principle.
Subject to these legal norms and basic moral values, the individual should also exercise
his/her own practical reasonableness, as the basic good of being able to bring ones own

13

Page 7, Covell

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intelligence to bear effectively on the problems of choosing ones actions14. For instance, a
basic principle of practical reasonableness is to respect other given values such as life and
knowledge. One shall not commit suicide, as his/her practical reasons tell him/her not to do so.
The principle of sociability, Finnis writes, is realized by a minimum of peace and
harmony amongst men, and which ranges through the forms of human community to its
strongest form in the lowering of full-friendship15. Further, he believes that within a community
there is the unity or order which we bring into our own actions and dispositions by intelligently
deliberating and choosing16. In other words, if one recognizes the social context he/she is living
in as a community, one has a moral obligation to either constrain or encourage his/her action in
order to ensure the overall communitarian harmony.
On the other hand, given the actions and dispositions imposed by community members,
there exists the need of coordination of any and every individual life plan, so there is no aspect
of human affairs that as such is outside the range of such complete community17. Thus, laws of
a community ought to regulate the conditions under which members of that community can
participate, and characteristically purport to adopt rules and normative arrangement18.
As a result, the community establishes the unity of orders19 such as unity of symbol
making, in which all community members unequivocally agree with the meaning of a social

14

Page 88, Natural Law and Natural Rights, John Finnis, Clarendon Press, 1980

15

Page 88, Finnis

16

Page 138, Finnis

17

Page 148, Finnis

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Page 148, Finnis

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Page 136-137, Finnis

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symbol (marriage is between a man and a woman); and unity of actions and dispositions in
which community members define certain conduct in the same way (homosexual orientation
violates nature).
To sum up, natural law theorists believe that legal norms must be derived from moral
values universally recognized by the community, and in particular, moral values must reflect
human nature grasped by practical reasonableness. As a result, it is nature that causally
formulates laws and captures natural goods for community members.
There are two problems for same sex marriage under this communitarian view. First, it
does not cohere into the harmonious communitarian understanding of conjugal marriage, hence it
fails the sociability principle; and second, its sterility is contrary to nature and reason, hence it
fails the first principle of practical reasonableness, to pursue goods.
Finnis contends that same sex marriage is an active threat to the stability of existing and
future marriages, as it creates human sexual capacities in a way which is deeply hostile to the
self-understanding of members of the community, who believe that sexual intercourse is not
the mere instrument20 of joy, but also a tool to actualize the martial good. Because same sex
marriage conflicts with current unity of orders, the community exercising moral authority is
obliged to discourage it, as it is contrary to reason and therefore contrary to nature21. Further,
same sex orientation per se, as iterated above when defining the conjugal marriage, fails to
witness the procreative significance between spouses, and thus it is contrary to the teleos of
natural marriage.

20

Page 12, Law, Morality and Homosexual Orientation, Finnis

21

Page 14, Finnis

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In particular, viewed by both teleological jurisprudence and Finnis natural law,


homosexual orientation is solely the extrinsic instruments of sexual satisfaction or
expression22, which omits to secure the intrinsic moral goods of marriage that can only be
discovered by heterosexual couples inasmuch as they fulfill the nature ends of their bodies,
namely, they are procreative in type or in effect. The civil union of marriage functions not as the
unitive institution between two consenting adults, but also an important social institution that is
responsible for child-rearing23 and other civic duties. Same sex marriage neglects all of these
necessities of marriage, and it is the abominable erosion of conjugal marriage, and a plastic,
malleable mimic of traditional marriage without moral implication.
In respect to legislating same sex marriage, natural law theorists claim that for the
sociability variable, marriage used to be a symbols with which people define their lives and
have identities.24 But now the institution of marriage, as a social essence of heterosexuality, is
trivialized.25 if same sex marriage comes true. Same sex marriage, whatever its virtues, would
narrow the frame and foreshorten our perspective.26 In other words, same sex marriage as a
legal norm will fundamentally adjust the teleos of all community members including
heterosexual couples, and thus impair their martial good.
22

Whats Sex to Do with It? Robert P. George, Page 152, selected from The Meaning of
Marriage, edited by Robert P. George and Jane Elshtain, Spence Publishing Company, 2006
23

Soft Despotism and Same Sex Marriage, Seana Sugrue, Page 177, selected from The
Meaning of Marriage.
24

The Stakes in The Gay Marriage Wars, Richard D. Mohr, Page 106, selected from Same Sex
Marriage, edited by Robert Baird and Stuart Rosenbaum, Prometheus Books, 1997
25

The Stakes in The Gay Marriage Wars, Richard D. Mohr, Page 106, selected from Same Sex
Marriage
26

Marriages True Ends, Commonweal Editorial, Page 124, selected from Same Sex Marriage,
Pro & Con A Reader

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To sum up, as for the practical reasonableness variable, it measures the intrinsic value of
homosexual orientation, and discovers that same sex marriage fails to secure the natural ends of
marriage. For the sociability variable, enacting same sex marriage dishonor the existing social
institutions based on heterosexuality.

Same-Sex Marriage and Legal Positivism


Now, if one examines how plausible natural law theory is in terms of finding same sex
marriage immoral and illegal, he/she is to observe the two inherent flaws of the conjugal
definition of marriage. In fact both of these flaws are derived from natural law reasoning itself.
They are first, the conjugal version of marriage mistakes homosexuality as contrary to nature;
second, conjugal marriage involves a double standard on procreative significance between
homosexual couples and sterile heterosexual couples.
The core argument for those who oppose same sex marriage is that homosexual
orientation, as contrary to nature, is immoral. But they never think about the fact that nature has
made many people attracted to members of their own sex27. And the reality is, that many people
now believe that homosexuality is an unchosen condition28. One is able to find historical
records of homosexuality dated back to Ancient Greece in terms of time dimension, and in
various other cultural settings such as native American and East Asian contexts, homosexual
orientation has its position. Homosexuality has been accompanying the development of human

27

Homosexuality and the Conservative Mind, Page 4 Stephen Macedo

28

Page 4 ,Macedo

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history as well as heterosexual relations for long period of time, as if for certain people, it is
natural for them.
If homosexuality is nothing more than another natural condition for certain people,
natural law theorists should acknowledge that nothing can be anymore moral for homosexuals to
pursue homosexual orientation and marriage. And for people who hold the view of Aristotelian
justice, same sex marriage is simply another form of teleos that nature has assigned to some
human being. Just as nature, under teleological distribution, designates tall people to play
basketball and smart people to study physics. Same sex marriage thus will not undermine
heterosexual marriage as a social institution, if it is simply a fulfillment of another natural end.
No one believes that basketball players obscure and devastate the natural ends for physics
scholars. Surprisingly as a result, for both natural law theory and teleological distribution, it is
immoral for homosexuals to deny their identity, or not to pursue marriage. The government is
also morally obliged to coordinate the society in a way such that no one should prevent same sex
marriage.
However, as persuasive as its conjugal counter-argument is the shallow assertion that
only because some are born to be homosexual, are we able to attribute homosexuality to a natural
characteristics. If marriage is equally natural to homosexuals and heterosexuals, procreation
becomes no longer necessary.
Stephen Macedo claims that none of sterile or heterosexual couples can procreate, but
natural law theorists still uphold them as married couples. It does not matter whether couples are
procreative in effect or in type, as long as the spouses are in different sexuality. Macedo asks,
what is the point of sex in an infertile marriage? If they have sex, it is for pleasure and to

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express their love, or friendship or some other shared good. It will be for precisely the same
reasons that committed, loving gay couples have sex.29 If sterile couples can actualize the
martial good, why cant homosexuals?
In addition, homosexuals can be, and many are, prepared to engage in the kinds of
loving relations that would result in procreation, were conditions different30. Hence, the only
reasons that conjugal marriage contains the procreative stipulation for homosexuals, but not for
sterile couples, remains to be an opportunistic one, selected as to allow sterile heterosexuals into
the tent while keeping all homosexuals out.31
When natural law theorists such as John Finnis contend that the intercourse of
homosexuals is nothing more than mutual masturbation, they exaggerate greatly the subjective,
self-centered character of all non procreative sexuality; in fact, most committed, loving
couples, whether gay or straight, are sensitive to the difference between loving sexual acts
expressing a shared intimacy and mere mutual masturbation32. In this case, homosexual spouses
are simply a variation of sterile heterosexual couples.
Again, procreation, the opportunistic and highly subjective component of marriage, is not
sufficient to distinguish what is natural and what is not. Similar to tinker families, homosexual
couples are well equipped with handful, as well as essential qualities worthwhile marriage, such
as love, commitment, companionship. Today our society treasures these qualities as they are
missing in many heterosexual marriages. Natural law theorists often advocate restoring moral
29

Page 9, Macedo

30

Page 10, Macedo

31

page 10, Macedo

32

page 11, Macedo

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values and invigorating human nature, under the current increasingly alienating context. If they
sincerely wish to do so, paradoxically, they should in fact legislate same sex marriage.
Nevertheless, natural law theorists take moral values and natural ends as given.
Homosexuality may be naturally given for us, but never for them. It may be never possible for
natural law theory to fully accommodate same sex marriage. Under such worst case scenario,
legal positivism becomes a useful alternative.
Legal positivism, contrary to natural law theory, is the idea that laws are source based
instead of merit based. Positivism per se, argues that legal norms are not valid because they
themselves or the basic norm have a content the binding force of which is self evident; they are
not valid because of their inherent appeal. A norm is a valid legal norm by virtue of the fact
that it has been created according to a definite rule33. In other words, laws are in effect not
because they are attached moral values innate to human nature, but because they rest upon
references to other laws and eventually the basic norm, namely the constitution, to which all
norms whose validity may be traced back.34
In particular, when supporting same sex marriage, legal positivists may claim that the
exclusivity of marriage for heterosexuals does not have any supporting legal sources. In
particular, since the question of whether an individual norm is valid is answered by recourse to
the first constitution35, the current stipulation of marriage and the basic norm under certain
context may fail to coincide.

33

Page 113, Kelsen

34

Page 111, Kelsen

35

Page 122, Kelsen

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For instance, in the United States vs. Windsor, the supreme court found the Defenses of
Marriage Act, Section 3 unconstitutional, as a deprivation of the equal liberty of persons under
the Fifth Amendment36. The DOMA Section 3 immediately lost its validity without the
reference to other laws, especially to the basic norm. Its replacement, legalization of same sex
marriage simultaneously acquired legal standing with the reference to the constitution. This in
practice proves the positive doctrine that creation of law is always application of law.37
Legal positivism as a formalistic method allows us to bypass moral reasoning, which is
often criticized as not verifiable, self-centered or subjective. Legislating same sex marriage,
under legal positivists perspective, coheres with their source-based principle of justice, and
further greatly enhances the general equality among citizens. In addition, since positive law are
man-made, contrary to natural law that are discovered by human reason, the success in the
legislation is able to reveal the popularity of same sex marriage.
Nonetheless in spite of its improvement on civil rights, the formalistic disposition of legal
positivism attracts many critical assessments. The most famous two are the separability thesis
and fallibility thesis. The first asserts that for legal positivism, there are no necessary connection
between laws and moral values, as laws are explicitly source based rather than merit based. As a
result the content of laws does not matter in terms of its validity. The second suggests that
because of the disjuncture between positive laws and moral values, positivism is likely to
produce evil laws. In particular, natural law theorists, worried about polygamy, consanguineous
marriage, regularly refer to the fallibility thesis to imply a slippery slope after legislating same
36

United States v. Windsor 570 U.S. ___ (2013), https://supreme.justia.com/cases/federal/us/


570/12-307/
37

Page 133, Kelsen

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sex marriage. However, none of the two these are entirely true, and legal positivism in fact
benefits from both alleged separability and fallibility.
As for the separability thesis, legal positivists are in fact happy to contend that morality
sets ideas for law, and law should live up for them. We see their union everywhere38. The
formalism in positive law simply is for avoiding pretensions to be a guide to conscience39, and
for revis(ing) the concept of law so as to deprive wicked legal systems of whatever allure
attaches to the law; as a plea for the revision of the distinction between law and morals.40 In
short, Leslie Green proposes the key relations between positive laws and moral values, that it is
in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though
in fact they have often done so41.
In practice, this positivist ontological austerity, defined by Brian Leiter, turns out to be its
greatest virtue, since it does not involve unnecessary, controversial or incredibly metaphysical
commitments42. Instead, legal positivism is reducible, and requires only persons and their
psychological states to explain the social phenomenon of law.43 We still remember that John
Finnis natural law definition on conjugal marriage has been incomprehensible and highly
subjective. It is so only because Finnis jurisprudence models on Thomist ethnics that
presupposes the existence of God. What Finnis presupposes is the unequivocal appreciation of

38

Positivism and the Inseparability of Law and Morals, Page 1, Leslie Green

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Page 3, Green

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Page 5, Green

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Page 20-21, Green

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But Why Legal Positivism (Again)? Page 12, Brain Leitner

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Page 13, Leinter

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his moral values. Positivism presupposes nothing, and one can easily verify it with respect to the
sounding reference to other legal norms.
For the second alleged flaw of positivism, the fallibility thesis, legal positivists believe
that it is true that positive laws may be contingently just, but so are other laws, including natural
laws. In particular, the fallibility of law has two sources: law can be used to promote the wrong
ends, and it can promote its ends by the wrong means. Laws fallibility is, something that infects
law from the outside, as a result of human failure to adopt the aims or the means proper to
law.44 For legal positivism, its recognition of fallibility captures remarkably well the familiar
distinction between law and morality, legal knowledge and moral wisdom45, and thus leaves
spaces for what can be law and what may not be.
For natural law theorists, recognition of fallibility simply signals the demise of their
jurisprudence, as moral values are always the eternal guiding principle and must not fail. But it is
not clear when and whether a guiding principle is necessarily law, as some are only sound for
certain people while not for others, or some are confused with other guiding artifacts that are not
laws themselves a priori, such as advertisement.
In short, as all laws may be contingently false, the acceptance of fallibility enables legal
positivism to establish a pure definition of law. Further, the refusal of fallibility render natural
law theorists ontological reasoning a tautology, in which legal norms are neither popularly
approachable, nor can be verified without self-centered presumptions. For instance, the content
of anti-abortion laws itself may promote certain moral values, as life should be treasured. But in

44

Page 21, Green

45

Page 9-10, Leitner

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a society where welfare and childcare policies are lacking, a single mother in poverty finds such
article unjust to her. Exactly as Hart says, that as societies become larger, more mobile and
diverse, life under a wholly customary social order is liable to bemuse uncertain, conservative
and inefficient.46
Above all, examined by same sex marriage, legal positivism becomes the preferred
jurisprudence, compared to natural law theory and teleological distribution. Positive laws often
carry moral values, as it is the essence of law to reflect morality. More importantly, positive laws
are fallible and verifiable, which means that it is able to reflect the contingent development of
human society, as nothing but the basic law is supposed to be given. These characteristics are
particularly applicable under modern contexts, in which citizens require laws to concern the their
diversity and plurality.

Conclusion
So far this essay, by looking into the jurisprudential comparison between natural law
theory and legal positivism in the special case of same sex marriage, has preferred the latter.
Little natural law theorists have recognized that same sex marriage may just be the teleos for
homosexuals, thus natural law is applicable to LGBT groups and other minorities likewise. It
fails to do so only because in this special case, natural law theory becomes nothing more than a
theorized form of homophobia. In Andrew Sullivans term, it is a panic47. The double standard
between sterile and homosexual couples demonstrates how a self-centered mindset, under the
46

Page 17, Green

47

Threes a Crowd, Andrew Sullivan, page 280, selected from Same Sex Marriage, Pro & Con A
Reader

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disguise of moral values and natural ends, may impede and frustrate sound propositions that
come from the need of actual human nature.
In addition, it is peculiar for natural theory to prioritize procreation when defining its
conjugal version of marriage. The primary task of human, as extricated from animals, is virtually
not to multiply its species but to promote moral characters such as philanthropy, perseverance
and wisdom. The legislation of same sex marriage has got all of them, and heterosexuals have
nothing to lose from it, only if heterosexuals do not view our society a cement jungle, in which
the rules of zero sums are applied, which is certainly a retrograde step. Same sex marriage in fact
will harm no one, but promote general equality, as well as enhance the civicness of social actors.
There are many more to say, for instance, it is true that as positivism accepts fallibility,
but is it necessary that all laws are only contingently just? Is there a possibility that natural law
may be fallible, but in a less devastating way different from positive law? Are natural laws more
stable than positive laws, since they have necessary connection with moral values? Is it possible
to envision a society in which each positive law, including the basic law is evil, but still
formalistically defined as a system of justice? Is is possible that laws are no longer laws, since
positivism always reduces values to agreement? I decide to leave these questions for future
considerations .
We can only see a short distance ahead, but we can see plenty there that needs to be
done48

48

Alan Turing, Computing Machinery and Intelligence

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