Same-sex marriage advocates—including the courts—often argue that marriage is a fundamental right, and therefore same-sex couples must be granted access to the institution even if that requires changing the definition of marriage itself.[1]

There are three problems with this argument.  First, it proves too much.  If marriage is a fundamental right, such that the qualifications for and definition of the institution must be revised to accommodate those who want access to the institution but do not qualify based on the traditional definition, then the institution will have to be revised to accommodate more than just same-sex couples.  It will need to be revised every time any one wishes to participate in the institution, but does not qualify based on the legal definition in use at the time.  Indeed, if the right to marriage is so fundamental that it requires society to change its definition of marriage to match the desires of hopeful participants, then society is left without a principled basis for declining anyone’s request to have their own idea of marriage recognized by the State.  The State must change the definition of marriage to match every new request, whether we approve of their concept of marriage or not.

If the desire of same-sex couples to participate in “marriage” requires that we change the definition of marriage from something like “a union of one man and one women of distant kinship who commit to an exclusive, life-long, unitive bond” to something like “a union of two people of distant kinship who commit to an exclusive, life-long bond,” then the desire of polygamists to participate in marriage would require that we further change the definition of marriage to “a union of individuals of distant kinship who commit to a life-long bond.”  If siblings desire to participate in marriage, that definition would need to be revised to “a union of individuals who commit to a life-long bond” to accommodate them, lest they be deprived of their fundamental right.  If someone desires to be married but does not want to commit to a life-long bond, the definition would have to be further modified to “a union of individuals who commit to a bond.”  And if someone wants to participate in marriage, but wants to marry a non-human, the definition would need to be changed again to “a union of entities who commit to a bond.”  If someone wants to participate in marriage, but cannot find a partner, or does not desire a partner, the definition would need to be further edited to “a person who is committed to himself or herself.”  And on and on it goes.  The very meaning of marriage would be in constant flux.  Indeed, the definition could become so minimalistic and/or so contrived that it ceases to have any meaning at all.

Secondly, one cannot claim to have a right to some X unless one first knows what X is.  What, then, is marriage?  While marital norms and spousal roles have differed from culture to culture, and age to age, virtually every civilization has understood marriage to be an enduring, sexual union between a man and a woman.  This is not some arbitrary requirement, but is rooted in the natural ability of such persons to mate.  Mating requires partners who are sexually congruent with one another.[2]  Unlike all of the other organs and systems of the human body, our sexual organs are radically incomplete.  They require the aid of the opposite sex to perform their intended function.  Each gender is half of a sexual whole.  “Because there are essentially two and only two sexes, the presence of a male and female in a sexual relationship is necessary and sufficient for reconstituting a sexual whole.”[3]  While members of the same-sex are able to engage in sexual activity, they cannot mate.

If the heart of marriage is the ability to mate, and same-sex couples cannot mate, then same-sex couples are incapable of participating in marriage similar to the way a male is incapable of getting a hysterectomy.  The government could eviscerate the concept of mating from marriage so that same-sex couples could participate in “marriage,” but once the fundamental feature of marriage is removed, the legal institution that remains would no longer be marriage anymore than a car whose frame, engine, and wheels were removed would still be a car.  The only resemblance would be the name.  Ironically, then, redefining marriage so as to include same-sex couples results in a situation where same-sex couples obtain the legal right to use the name “marriage,” but without actually having one.

The third problem is related to the second: One cannot have a fundamental right to some X if that X does not have an objective, fixed meaning.  We have a fundamental right to life, but only because “life” has an objective meaning that cannot be changed.  If the definition of “life” was always changing, we would be bereft of anything fundamental to which we could attach a right, yet alone a fundamental right.  Likewise, for the right to marriage to be fundamental, marriage must be something fundamentally particular in nature.  And if marriage is something fundamentally particular in nature, then it cannot be redefined to fit the desires of those who want to lay claim to the name and benefits of marriage, but are not willing to meet the requirements for marriage.

Perhaps what SSM advocates mean when they say they have a fundamental right to marriage is that they have a fundamental right to legally use the word “marriage” to describe their relationship.  But how is this a fundamental right?  Rights have to be grounded in something more than mere claims, and fundamental rights must be grounded in something fundamental.  Life, liberty, and the freedom of conscience are clearly fundamental rights.  The right to have your relationship legally defined as a “marriage” is the odd-man-out in this list!

It could also be that SSM advocates mean everyone has a right to have their relationship legally recognized by the government, or to obtain special benefits and privileges from the government. Once again, rights claims need to be grounded in something objective.  What justification is there for thinking these are fundamental rights?  While humans have a fundamental right to enter into a marriage without government interference, State recognition and approval of their union is not a fundamental right.  The State regulates marriage because it is in their best interest to manage the procreative potential of opposite sex couples, not because they have a moral obligation to do so.  The institution of marriage is a natural union that exists prior to, and wholly independent of State recognition.  If the State withdrew itself from the marriage business tomorrow, those who are currently in a marriage would continue to be married, and those who enter into a marital (mating) relationship in the future would truly be “married” even though the State does not legally recognize their marital relationships as “marriage” or provide them with special benefits.  While marriage itself is a fundamental human right, there is no fundamental right to have the State recognize, regulate, and sanction it.  As such, the State is under no compulsion to recognize same-sex relationships as marriage.

[1]Some would argue that so long as the State does not declare that marriage is not the union of a man and woman, then it cannot be said that recognizing same-sex couples’ relationships as “marriage” would be a change to the institution of marriage.  After all, Joe and Susie’s marriage would not be affected by this definitional change at all.  But this misses the point.  Clearly marriage is being changed.  If you were in a five-man band, and your manager decided to open up your band to two additional band members, surely you would not buy your managers argument that since band members were only added to the band—and none removed—that the band had not changed.
[2]The act of mating does not necessitate procreation, even though it often results in such.
[3]J. Budziszewski, “The Illusion of Gay Marriage” Philosophia Christi 7 (2005): 45-52; available from; Internet; accessed 22 August 2005.