A Legal Argument Against Homosexual Marriage

health, wealth, reputation, marriage

For the past several decades, the Western world has been increasingly distancing itself from its Christian roots. One of the clearest examples of this is its abandonment of traditional marriage by the legal recognition of homosexual unions as marriages. Until very recently, homosexual marriage was basically unthinkable in our culture. Yet, the dominant view today is that homosexual unions are no different from heterosexual ones.

In response, opponents of this trend maintain that marriage should be between a man and a woman, but unfortunately, most of their arguments are weak and ineffective. For example, some contend that our marriage laws should be explicitly based on God’s will as revealed in Scripture, but that argument has little (if any) force in a society that no longer cares about God or the Bible. Similarly, many people have a vague idea that homosexual acts are in some sense unnatural, but they are unable to articulate this belief in a clear or convincing way. Because of these weak arguments, proponents of gay marriage often believe that they are obviously right and that no intelligent, unbiased observer could possibly disagree with them.

However, that is not at all the case. There are other, better arguments against the legal recognition of homosexual unions as marriages, and if we want to have any chance of turning the cultural tide on this issue, we need to know them. We have to be able to articulate and defend our position in a clear and convincing way without appealing to vague intuitions or to sources that most people today would simply dismiss as irrelevant. And that is my purpose in writing this article. I want to summarize what I believe is the best philosophical case against the legal recognition of homosexual unions as marriages, one that can stand its ground in the marketplace of ideas and truly challenge the assumption that there are no intelligent reasons to oppose the prevailing mindset, which favors homosexual marriage.

The best way to tackle this issue is to take a two-pronged approach.  First, we have to look at the nature of marriage itself, and then we have to look at why the government cares about it. When we do that, we’ll see two things: 1) Marriage by nature requires one man and one woman; two people of the same sex simply can’t form the kind of union that we call “marriage.” 2) Legal recognition of homosexual unions as marriages is unrelated to and actually defeats the purpose of recognizing and privileging marriage in the first place. While each of these points is compelling on its own, when we put them together, we get a very strong argument that nobody who approaches this issue with an open mind can ignore.

Biological Union

Let’s begin with the first part: what two men or two women do when they form romantic relationships is not the same thing that a man and a woman do when they get married. The key difference concerns the role of sex within marriage. Marriage is a comprehensive union that unites two people on every level (physical, mental, emotional, etc.), and sex is the physical level of that union. When a man and a woman have sex, they unite physically; more specifically, they unite biologically.

That may sound odd. To understand it better, think of a biological act that our bodies perform. It can be respiration, digestion, movement, or any other biological act you may propose. Whatever you think of, it will almost certainly have these two features: 1) It involves various organs working together for the good of the whole organism, and 2) It takes only one person to perform it.

The first feature is easy enough to understand. What unites our organs as our organs rather than just random body parts that simply happen to be connected to one another is the fact that they work together for a greater good, the good of the whole organism. For example, when you digest your food, everything from your teeth to your intestines works together to break it down so your entire body can use its nutrients. The second feature, however, may seem a bit trivial. Of course biological acts are performed by only one person. That probably seems so obvious that it should go without saying, but it needs to be said because there is actually a key exception: reproduction. Reproduction can happen only when a man and a woman unite and make their reproductive organs work together for a single goal, the goal of producing a child who can carry on the genes of both parents.

This reproductive function is what unites a man and a woman when they have sex. By coming together to perform this act, they become a single subject of a single biological act. They don’t literally become one organism, but their bodies work together for a single goal, just like the organs of an organism do for any other biological act. Consequently, when a couple has sex, they unite in the closest way possible on the bodily level.

Personal Union

This may not seem very romantic, but we have to remember that we’re not just spirits that inhabit bodies; we are our bodies as well. That is why, for instance, if someone hits your body, they are truly hitting you and not just an external instrument that you use or inhabit. As a result, when a couple unites biologically, it is not just two impersonal bodies that become one. No, since it involves two bodily persons, it is the persons who unite, joining the physical parts of themselves in the most intimate way possible.

And that is the role sex plays in marriage. As I said before, marriage is a complete union of two people on every level, and sex, as a complete gift of one’s body to another, is the physical element of that union. It is the physical embodiment of the spouses’ love and commitment to each other.

The Big Objection

However, there is one big objection that just about everybody makes to this view of sex when they first encounter it: if sex is supposed to be the act of reproduction, how can it have any significance for infertile couples? To answer this objection, we have to understand that the nature of a biological act does not depend on its success.

For example, if I eat some food and then throw it up a few hours later, I have not completed the biological act of digestion, but that does not mean I have not performed it at all. No, the act of digestion is a process. It begins in the mouth and ends in the intestines, and it takes time for the food to be fully broken down. When the process is cut short by something like throwing up, that simply means that it hasn’t been completed, not that it never occurred at all. If you throw up, your body did in fact perform a biological act. It began to digest the food, even though it was not able to finish.

And sex is like that. As long as an infertile couple does the same thing that a fertile couple does when they have sex, they are still performing a biological act. They are performing the first part of the whole process, and if the process cannot be completed, that does not mean that what they did was not a biological act. It was, but it just didn’t reach its goal. As a result, any heterosexual couple, fertile or infertile, can unite physically and embody their marital commitment to each other when they have sex.

The Real Problem

Once we understand this, it is pretty easy to see that homosexual couples cannot unite in this way. They cannot perform the biological act of reproduction, so they cannot unite physically the way heterosexual couples can. Consequently, they’re unable to form the comprehensive, multi-level union that we call “marriage.” Sure, they may be able to unite on all the other levels, but for a couple to be married, they need to unite on all of these levels. Not a single one can be missing; if one is, it is simply not marriage.

As a result, the problem is not that gay couples should not be allowed to get married; rather, it is that they are unable to get married. They simply cannot do the same thing that straight couples do when they get married, so the government should not recognize their unions as marriages. To do that would be to recognize as marriage something that is not truly marriage, and that is obviously not a good thing.

Why the Government Cares

Next, we have the second reason why we should not legally recognize homosexual unions as marriages: it is unrelated to and in fact defeats the purpose of recognizing and privileging the institution of marriage in the first place. To understand this point, we have to reflect on the reason why the government should care about marriage at all. Some people think that it has to do with the happiness of the spouses, but that cannot be right. The government doesn’t recognize or regulate any other relationships that impact our happiness (like those with our friends and relatives), so why should it make an exception for marriage?

Instead, the government should care about marriage because it gives children the best possible chance of growing up to become good, productive citizens, and that is clearly something in which the government has great interest. Sociological studies have shown that on the whole, children tend to do best if they grow up with both of their biological parents in a stable marriage. Children with that kind of home life usually have lower rates of delinquency and of subjection to sexual and physical abuse, and they are typically healthier physically, emotionally, and mentally.1 Now, by binding mothers and fathers together and making it harder for them to separate, marriage helps keep families together, and that in turn helps children grow up to be healthier and better citizens.

Moreover, by keeping families together, marriage laws also help to create a good marriage culture. Whether we like it or not, laws influence public opinion. Once something becomes legal, more and more people will begin to do it, and after a while, a whole new generation grows up with it as a normal part of their lives. As a result, they accept it without much question. Think about racial integration, for example. Segregation laws were struck down only a few generations ago, but already the vast majority of Americans don’t think twice when they see people of different races using the same bathrooms or sitting next to each other on a bus. Similarly, by keeping families together, good marriage laws also make intact families a normal part of people’s lives. Marriage becomes the natural aspiration of young boys and girls. They want to grow up, get married, and have kids, all of which is conducive to raising good citizens.

Society’s Best Interests

Once we understand all that, we can see that recognizing and privileging hetero-sexual marriage is very much in society’s best interests. It is the best place for children to grow up to be good citizens, so it should have a special place in our society.

However, the same cannot be said about homosexual unions. As a couple, the spouses cannot be a child’s biological parents. Typically, they cannot provide the best possible environment for children to grow up. Consequently, legally recognizing these unions as marriages would not serve the purpose of legal recognition of marriage in general.


But that is not all; we can go even further. Recognizing homosexual unions as marriages is also counterproductive because it defeats the purpose of giving marriage a privileged legal status. Heterosexual marriage is characterized by the biological act of reproduction, so it has an intrinsic link to children that homosexual relationships cannot have. Granted, homosexual couples can adopt, but so can two sisters living together, yet nobody would say that a sibling relationship has any intrinsic relation to children. Such relationships aren’t incompatible with raising kids, but that is very different from being intrinsically related to it. There is nothing about sibling relationships or homosexual unions that has any inherent link to children.

Because of this, recognizing homosexual unions as marriages severs the link between marriage and children. It enshrines in our laws an understanding of marriage that has nothing to do with children. If we say that homosexual couples can get married just like heterosexual couples, then we’re saying that they can form the exact same kind of relationships. Because homosexual marriages are not inherently related to having and raising children, by legalizing them, we are saying marriage in itself cannot have any intrinsic link to children. As a result, we will be severing the link between marriage and children in our culture’s understanding, and people will become less inclined to consider marriage the proper place for bearing and raising kids. This will then naturally lead to people being less reluctant to have kids out of wedlock, which in turn will cause those children to be raised in less than optimal conditions.

The Path is Clear

From all this, we can see that contrary to what many people believe, there are in fact good reasons to maintain marriage as intrinsically heterosexual in our laws and in our culture. Homosexual and heterosexual unions are simply not the same kind of relationships. Moreover, the whole reason why the government cares about marriage (the begetting and rearing of children) depends on its being between a man and a woman, not two men or two women. Recognizing homosexual unions as marriages actually defeats the purpose of legally recognizing marriage at all. The right path is clear: homosexual unions should not be legally recognized as marriages.


1) Linda J. Waite and Maggie Gallagher, The Case for Marriage (New York: Broadway Books, 2000), 130-35.

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9 thoughts on “A Legal Argument Against Homosexual Marriage”

  1. Study released yesterday says “nones” has risen to 26%. The harvest is plentiful yet the laborers are few. Further incentive for gathering the harvest – we won’t have to worry about arguing with the secular world.


  2. The Bible is the inspired Word of God:

    You shall not lie with a male as with a woman; such a thing is an abomination. Lev18:22

    If a man lies with a male as with a woman, they have committed an abomination; the two of them shall be put to death Lev22:13

    They called to Lot and said to him, “Where are the men who came to your house tonight? Bring them out to us that we may have sexual relations with them.”…because of the Lord’s compassion for [Lot], seized his hand and the hands of his wife and his two daughters and led them to safety outside the city…Lord rained down sulfur upon Sodom and Gomorrah, fire from the Lord out of heaven. Gen19:5-24

    [Nor will] sodomites inherit the kingdom of God. 1 COR 6:9-10

    law is meant not for a righteous person but for the lawless and unruly, the godless and sinful, the unholy and profane, those who kill their fathers or mothers, murderers, the unchaste, sodomites, kidnappers, liars, perjurers, and whatever else is opposed to sound teaching, according to the glorious gospel of the blessed God, with which I have been entrusted. 1 Tim 1: 8-11

    Come Holy Spirit upon those in most need of thy gifts.

  3. Thank you for this great defense of heterosexual marriage. I’ve actually been using it without knowing it, but you’ve expressed it more clearly. I don’t believe most that favor gay marriage realize that the leaders of this movement are deliberately destroying the family and religion so that our only loyalty is to the state. And it won’t stop with gay marriage. There are already calls for recognizing plural marriages, incestuous marriages, and who knows if we’ll get to the point where the union of man and beast is called a marriage. God help us.

    1. It is not clear as to what you are referring as theoretical. The author’s fundamental argument is based on the definitively known process of sexual reproduction in both plants and animals. Sexual reproduction involves the binary division of genetic material in male and female reproductive cells thereby forming haploid male and female gametes, respectively. One male and one female gamete unite to form a new individual of the species, having a full genetic complement. Such is not theory.

    2. It is a fact, though a bare, meaningless fact. A baby results when sperm from a man meets an egg from a woman. It can be from rape, from a cold, unpleasant arranged marriage, from a loving life partnership, or maybe even from a loving marriage.

      From this meaningless fact arises the theory, developed by celibate males who, to state the obvious, didn’t know what they were talking about. The theory has nothing to do with why people have consensual sex, what makes for a lasting and loving two person relationship, what makes for effective and heartfelt child rearing, whether gay couples are as good as a heterosexual couples at raising children (they obviously are, especially since these are self sacrificing and consensual parents, no shotgun marriages here), or the fact that allowing gay marriage has in no way inhibited hetero couples from marrying and having children if they wish to do so.

    3. “From this meaningless fact arises the theory, developed by celibate males who, to state the obvious, didn’t know what they were talking about.” You could make that argument if most of the male individuals in the Bible hadn’t been married, but many of the men who wrote the books in the Bible were married, not celibate, so they knew about that thing called “sex”. Also, celibacy in the Roman Catholic rite of Catholicism wasn’t a required practice for nearly a millennium after the formation of the Bride of Christ. Celibacy didn’t become canon law until 1917. So, the theories of what constitutes marriage and sex was developed by men who had sex and wives a long time ago. Recent celibate men (aka priests) just realize the wisdom of the earlier centuries and keep it alive for now.

  4. Pingback: VVEDNESDAY EDITION – Big Pulpit

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