San Francisco Judge Vaughn Walker’s recent decision to overturn Proposition 8 (which reads in its entirety: “only marriage between a man and a woman is valid or recognized in California”) has intensified discussion of same-sex marriage. The judge’s ruling rests on several claims that merit further examination.


Walker writes, “Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.”

But the proposition says nothing at all about gays or lesbians nor does it assume that gays and lesbians are incapable of forming long-term, loving relationships or of being good parents. A majority of Californians, indeed a majority of Americans, as well as President Barack Obama, oppose same-sex marriage, and it is unfair of Walker to attribute to such a diverse group the views ascribed.

Some people say that denial of same-sex marriage is like denial of marriage between the races. It was wrong to ban interracial marriage, so too it is wrong to ban same-sex marriage. Walker points to important Supreme Court precedents such as Loving v. Virginia, which allowed for interracial marriage. But is banning interracial marriage really like banning same-sex marriage?

Interestingly, those who have the most bitter and deep experience of discrimination, African-Americans, do not share this judgment. Some 70 percent of African-Americans voted in favor of Prop 8 in California defining marriage as between one man and one woman. In fact, differences in race are not equivalent to differences in sex. Everyone agrees it is wrong to have “separate but equal” facilities for each race — for example, bathrooms only for African-Americans. But virtually everyone agrees it is fine to have separate women’s bathrooms and men’s bathrooms. We have separate men’s and women’s Olympic basketball teams, but we would not accept a white U.S. basketball team and an African-American U.S. basketball team. The analogy between banning interracial marriage and banning same-sex marriage fails because discrimination according to race is wrong but discrimination (“separate but equal”) according to sex is not.

Love and commitment

Walker also writes, “Proposition 8 places the force of law behind stigmas against gays and lesbians, including: Gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.” Again, the proposition says nothing of the kind.

His implicit argument seems to be that if two men or two women have an intimate relationship with each other, they should be allowed to get married. The implied premise is that whoever has love and commitment should be allowed to get married. Clearly, this premise is false. True love and commitment exist in many intimate relationships that should not be recognized as marriage. For example, a grandson and a grandmother, or an army platoon, can have true love and commitment to each other, but they have no right to marry. So, the argument for love and commitment fails to establish that same-sex marriage is justified.

Sexual orientation neutral

In truth, the traditional marriage law is neutral with respect to sexual orientation. Any unmarried man and woman can marry each other, regardless of the sexual orientation of either party. As the marriage law is neutral with respect to race and religion, so too it is neutral with respect to sexual orientation, treating all people equally.

 Same-sex marriage advocates will object that even though homosexuals can currently get married, they cannot marry in accordance with their sexual orientation — for example, a gay man cannot marry a man. Same-sex marriage secures the right of people to marry in accordance with their sexual orientation.

However, if there is a right to marry in accordance with sexual orientation, then a bisexual should be allowed to marry both a man and a woman at the same time. Thus, bigamy would have to be acceptable. If a bisexual were forced to choose between marrying either a man or a woman, then the bisexual would not be allowed to marry in accordance with the bisexual orientation.

Of course, human sexual desire is not limited to heterosexuality, homosexuality and bisexuality. If it were true that people had a right to marry in accordance with their sexual orientation, we would have to extend this right to other forms of sexuality. Autosexuality (sexual attraction to onself) justifies self-marriage. Zoosexuality (attraction to animals) justifies human and animal marriage. Necrosexuality (sexual attraction to corpses) justifies marriage between the living and the dead. Clearly, each sexual orientation does not justify a corresponding kind of marriage.

I am not, lest I be misunderstood, saying that homosexuals are equivalent to persons who have a sexual attraction toward themselves, animals or corpses. Rather, all people, regardless of their sexual orientation — be it common and widely accepted or extremely rare and socially maligned — have intrinsic dignity. However, it does not follow from the intrinsic dignity of each human being that there ought to be a socially recognized form of marriage for each individual’s sexual orientation.

Procreative component

Only couples of the opposite sex can do acts that are of the kind that can generate new human life. No same-sex couples or other kind of couple can perform such acts. Because of the significance of this activity, one essential to the survival of society, it is proper to recognize and socially promote the unique value of a relationship between a man and a woman.

Walker retorts, “California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.” Instead, he writes, “Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.”
Walker’s statements are in some tension. On the one hand, he denies that marriage is about fertility because we do not require that married couples try to have babies. If he were consistent, he would also deny that marriage is about committed love because we do not require that married couples try to remain faithful to one another, insofar as we allow multiple divorce and prenuptial agreements.

In fact, marriage is about committed love and procreation, despite the fact that some married individuals are not willing (or in some cases not able) to remain committed or procreate. For this reason, we rightly reserve marriage to couples who are at least of the proper kind to be able to fulfill these two purposes of marriage.

Christopher Kaczor is a professor of philosophy at Loyola Marymount University in Los Angeles.