A Thomistic understanding of Law and its Implications for gay marriage

Morning's Minion over at Vox-Nova recently wrote critiquing the Supreme Court's decision on D.C.'s handgun ban. I believe some of his reflections on the nature of Law and a Catholic understanding thereof can shed some light on the role of the government in legislating marriage, specifically gay marriage. [Note: In this post my intention not so much to develop a natural law argument for traditional marriage, but to show that the arguments for gay marriage are intrinsically flawed]

MM writes the following:

The US Supreme Court has declared the District of Columbia’s ban on handguns to be unconstitutional as it violates the so called individual “right to bear arms”. We need to unpack this. The Catholic perspective is to start with Aquinas, who viewed law as “an ordinance of reason for the common good, made by him who has care of the community”. The Enlightenment era gave us another view of the law, predicated on the notion of individual liberty as the foundation of society. In other words, the person has the right to do as they wish in search of personal fulfillment, as long as it does not impinge upon the rights of another. Law is then all about the enforcement of social contracts.

It would be erroneous not to credit the Enlightenment with its achievements. Too often, rulers abused the notion of “common good” (if they even bothered to seek a rationale) to trample upon human rights and human dignity. In re-discovering and liberating this essential Catholic teaching, we must be grateful to “Enlightenment values”. But we cannot go too far, for the underlying anthropology is false. It is used to support laissez-faire liberalism, based on the notion that market exchange is a “free” exchange that reflects natural differences in the various actors. This approach as been condemned vociferously by the Church from Pope Leo XIII onwards, for the Church looks at these issues through the lens of the common good, the way Aquinas viewed the law. The ethic of private liberty has led directly to gay marriage, where the goal is simply the satisfaction of personal desires as opposed to the common good which would emphasize the bearing and rearing of children. And of course abortion is justified in this manner: the “right to privacy” is paramount, and the unborn simply cannot be active participants in a social contract.

This is a rather lengthy introduction, but, I believe, an essential one. For the right to bear arms that the Supreme Court upheld today comes directly from this notion of personal liberty trumping the common good. For the authorities charged with the common good in DC, an area suffering from extremely high gun-related violence, felt that a ban on handguns was appropriate. Of course, this ban can have limited effect absent border controls at the Potomac river. But is this a valid argument for inaction? To use that logic, the ability to travel means that no laws restricting abortion should be enacted either.

I wish specifically to focus on his treatment of Law. According to Aquinas, the Law is always meant to serve the common good. Furthermore, human laws can only truly be considered laws if they do not contradict the higher orders of law (natural law, divine law, and eternal law, which it is not my purpose to delve into here). While not necessarily applicable to gun laws, it is certainly pertinent to marriage laws, but let's not get ahead of ourselves.

MM also adds a critique of our current Enlightenment-influenced understanding of law which has led to all the rights-based talk we see today. A right to privacy, a right to choose, a right to abortion, a right to guns, a right to do what I want when I want as long as I don't harm others, as long as I don't break the social contract. This very concept is illogical, contrary to the common good. For example, there is no way of knowing what hurts others, (private actions do have real effects) . Furthermore the governing bodies become the arbiters of rights. Thus we end of with people deciding that this or that is a legitimate right even though it may be harmful to society and contrary to the common good. We must not continue to base our Law on this thinking, which is a slippery slope that will ultimately lead to the further destruction of the family and of society.

MM explains that this faulty understanding of law logically leads to a right to choose abortion and a right to gay marriage.

So what might a proper understanding of law have to say about gay marriage? In order to more fully understand the implications of this question, we must consider how natural marriage serves the common good. Marriage/ Family is the foundation of any stable society. It expresses an accurate anthropology of the complementarity of the sexes where man and woman can help each other persevere through life's troubles and share life's joys. It offers a stable environment for the conceiving and rearing of children, who have the right to a safe, stable home life, a right to be educated, and a right to be loved. Statistics show that children who are deprived of these basic rights are more likely to abuse alcohol and drugs, are more likely to suffer from depression, are more likely to engage in promiscuous activities, etc.

In other words, the positive advantages of marriage for a civil society are numerous and nearly incalculable. Traditionally, this is why governments have offered incentives (tax breaks, etc.) to encourage marriage and stable family life.

Gay marriage does not offer many of these advantages. Furthermore, it is contrary to the natural law. Without using the flawed slippery slope of rights-based Enlightenment influenced argumentation, on what basis can one argue for a law allowing Gay marriage?