By Professor Brian M. McCall, Esq.
Editor’s Note: The following article was published on the website of Catholic Family News. It has been reprinted here with the permission of the author Mr. Brian McCall.
On June 26, 2015, the United States Supreme Court once again covered itself in shame rather than exhibiting true jurisprudence. In Obergefell v. Hodges, 576 U. S. ____ (2015), the Court ruled contrary to reality, that simulated marital acts between people of the same gender are identical to true marital acts and that those engaging in them have the legal right to force all governments and people to recognize these unnatural acts as constituting marriages. In 1857, the same court covered itself in shame by declaring that every person of black African descent regardless of whether slave or free was incapable of being a US citizen and thus had no standing to sue in federal court. Even though the law of the land stated that any person born in the nation would be a citizen, the court distorted reality and simply declared by fiat that although under natural and civil law these people were citizens, they were not legal persons capable of filing suit.
What connects these two cases is the sad fact that the Supreme Court Justice who delivered the unjust opinion of the court in both cases was a Roman Catholic. Justices Roger Taney and Anthony Kennedy both Roman Catholics violated the principles of the Church to which they purported to belong and disgraced the Court and Church. Their example is a warning to us all. But for the grace of God go I. Not simply by claiming to be a Catholic are we protected from committing evil acts. The Church’s traditional doctrine exudes perfection and truth; yet her sons, even the most educated and prestigious, can and often do act contrary to her teaching. Justice Anthony Kennedy’s opinion was joined by fellow Catholic Sonia Sotomayor. The other four Catholic justices although not joining in the majority’s outrage opposed it for reasons that are also rooted in Liberalism.
Kennedy’s Modernism
Justice Kennedy’s opinion relies upon many Modernist errors long condemned by the Church to which he claims to belong but which notwithstanding their condemnation have spread like viruses through the Mystical Body of Christ and American secular society. Sadly Justice Kennedy merely exemplifies the crisis in the Catholic Church of his time. If Modernism is, as St. Pius X taught, the synthesis of all heresies, Justice Kennedy’s shameful opinion is a synthesis of Modernist errors. The opinion reads like a basic syllabus of Modernist distortion of immutable truth. In this article we will see how this sad result was an inevitable consequence of the Modernist errors that have come to dominate the Supreme Court, Justice Kennedy, the Church and our society at large.
First, Kennedy embraces the Modernist concept of evolving truth. What was true for our ancestors for millennia is not necessarily true for us. He frankly admits that everything that all people—philosophers, lawyers, religious leaders—who have written about marriage since before the founding of our country (in fact for millennia) “were based on the understanding that marriage is a union between two persons of the opposite sex.” This is one of the few accurate things he says in his sophistic opinion. As a true Modernist, he often says one thing and then writes the exact opposite. Having stated that marriage has since the beginning of recorded history only existed between men and women, he then contradicts himself by stating that marriage has not been a fixed institution but has been evolving. “The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.” In classic Modernist fashion he asserts the contradiction that something can evolve and remain the same.
This trick relies on a Nominalist metaphysics. Words and concepts are merely empty containers which we use to fill with evolving content. By retaining the same name—marriage—but using the word to mean the direct opposite of what it has always meant, Modernists bridge this gap between continuity and evolution. They empty the word marriage of its meaning and fill it with something contradictory. Yet, the nominal word remains and provides the continuity that they claim exists in their redefinition of reality.
Pius X warned the faithful of this trick in Pascendi. Modernists use traditional words to give the appearance of continuity but infuse them with false novel meanings. Justice Kennedy can thus wax lyrical about the greatness of marriage in a way that in another context would sound correct. Yet, because he has substituted a new definition of marriage, his praise is not of the reality of marriage but this novel misconception.
By claiming that Justice Kennedy redefines marriage I do not mean simply what many pundits claim by such criticism. They mean simply that he redefines marriage as between two people regardless of gender. True this is the practical consequence of his redefinition. But the intellectual deception is much deeper. He redefines marriage in a more radical way that makes the conclusion that the action of marriage can be undertaken by people of the same gender a logical consequent. He does this by adopting the novel definition of marriage’s end or final cause promoted vigorously since the mid-twentieth century.
A Look at Reality
As Aristotle explains we know what things are by knowing their causes. Of which the most important cause is the final cause. The final cause tells us the why—the for what purpose—of a thing. To change the final cause changes the thing itself. The first component of the final cause of marriage is the begetting of children for the propagation of the human race. Marriage is a relation in which two people have a right and a duty to engage in acts which are suited to the conception of children. This definition is known by a higher law than the words which Justice Kennedy purports to be a law but are really no law at all. This higher law is the natural law. This law is written in our nature, in our hearts. We come to know its precepts through aspects of immutable human nature.
Man is a rational animal. As an animal he shares some characteristics with other animals and possesses others unique to him. All animals are inclined to undertake acts which lead to the pro-creation of more like themselves and, to the extent consistent with their particular form, care for their young. As Man is a rational animal, capable of being educated, this inclination includes for Man both the inclination to produce other beings like himself and the “education” of children. Yet, Man is also a social and political animal, [1] and therefore this education must also be directed toward this social aspect of human nature. These inclinations indicate that the procreation and education of children within a stable familial society is a component of the good for Man.
We can thus define marriage as the human relationship which has as its end the fulfillment of this inclination of human nature: the procreation and education of children within a family. We can then understand what defines this relationship in light of that end and as a result understand what society should recognize as a marriage. In the tradition of natural law jurisprudence, we can define what distinguishes the marital relationship from other relationships in light of this precept of natural law discerned from human inclinations. The act that separates marital relationships from other relationships is the use of a particular act, appropriately enough referred to for centuries as the “marital act.” Now what is the function or purpose of this act? Simple observation demonstrates that this act has the function of bringing into existence other creatures like those making use of it. The function of the act, that which it naturally produces, is the procreation of human children. This logical inference is no different from concluding that the function of inhaling is to breathe oxygen and remain alive.
Some try to argue that it is possible to use the marital act for other purposes. Yet the fact that a thing oriented for a purpose is capable of being misused for another purpose does not disprove the fact of its natural inclination. One can use the ability to inhale to breathe in deadly poison, but doing so is not using the act in accordance with its natural function. Modern technological knowledge about the operation of the biological aspects of the marital act has only confirmed what people have always known.
For the act to be oriented towards this function of procreation, a male and a female must be the participants. The use of the marital act (or more accurately a part of it) by two persons of the same gender is inherently not ordered to this end of procreation. The purpose is in no way capable of being attained in this manner. Since the natural law requires us to do good and an aspect of the good for Man is the procreation of more Men, acts oriented to that end are good. Acts which are incapable of achieving, or which frustrate, that end are evil. This conclusion that the marriage relationship by necessity may involve only a man and a woman was seen as a fundamental truth by the pagan philosopher Aristotle. He explains:
"He who thus considers things in their first growth and origin, whether a state or anything else, will obtain the clearest view of them. In the first place there must be a union of those who cannot exist without each other; namely, of male and female, that the race may continue (and this is a union which is formed, not of deliberate purpose, but because, in common with other animals and with plants, mankind have a natural desire to leave behind them an image of themselves). . . ." [2]
Yet, Kennedy skips over this primary end of marriage and leaps to a secondary and dependent purpose. He rightly explains that marriage involves a stable and supportive commitment between two people. Likewise the Church has also always taught that the secondary purpose of marriage is the mutual support of the spouses. Yet, this secondary end is only good in itself when oriented to the primary end because the reason for this mutual support of the spouses is the rearing and education of the children that are the fruit of the marital act in a stable familial society.
Unlike many animals, human beings are born incapable of satisfying even the most basic needs for survival. They require an extended period of complete care by mature humans merely to survive. On a physical level, people are born social animals in that they need to live in society with others to survive. This indicates another aspect associated with the act of procreation. It must be undertaken in a situation in which a stable society exists into which the child conceived of the act can be born. To survive even physically, the child requires the presence of people capable of fulfilling this long-term need for care.
Yet some other animals also require similar periods of physical care. Man is further distinguished from all animals by his use of the faculties of reason and volition. It is also evident that although these powers are present in all humans, they are not capable of being used initially. Their use needs to be habituated through education. Human history also demonstrates that they are capable of being used well or abused. As the Aristotelian philosopher Alasdair MacIntyre has explained humans must be educated to be able to know and choose the good. [3] If modern psychology has proven anything, it has demonstrated the great complexity inherent in this process of training of the reason and the will. Training in the use of these complex, interrelated faculties requires more than mere physical care. It requires education and discipline. These processes extend over several decades (almost one decade before the faculties are even able to be used—the age of reason) and another decade to acquire the discipline of how to use them well.
Again, as modern psychology has demonstrated, the details of each person’s path to making proper use of these faculties is highly unique. They interact with the nuances of each individual’s personality type and surrounding circumstances. Thus, those directing this process must be able to acquire the relevant breadth of experience of the contingent factors present for each new child over the course of time.
This component of the end of marriage, which we have called the education or training of children, requires a fixed, stable society, i.e., a society that is not dissoluble and whose members are not coming and going. As noted earlier, Man is a social animal. He needs stable social interaction to develop and make use of his uniquely human faculties. When people can come and go from a relationship at will, they are not in a society; they are merely sharing, for the moment, living space. The reason and will need to be made to work in harmony with Man’s social nature. This learning is acquired by observing and experiencing others living in society. One living in an environment that is not a society of two adults that can serve as the model for societal interaction is unable to be educated effectively in the use of reason and will in light of his social nature.
Thus, marriage does involve a relationship of mutual love and support of the spouses. But this end is not merely good in isolation it is good because oriented to the primary purpose of marriage. The education of children is an arduous task that requires a society of mutual love and support. Thus, this secondary end of marriage is good and important but is meaningless without its primary end.
Consistent with these truths of natural law, the Church in which Justices Kennedy and Sotomayor were raised has always and everywhere taught that the primary end of marriage is the procreation and education of children. [4] The secondary end, which as secondary must be oriented toward the primary end, is the mutual support of the spouses, and the third end is the quieting of the desires of concupiscence. The second and third ends relate to emotional and physical pleasure. The emotional support of the spouses and the quieting of the appetites are pleasures that accompany the fulfillment of the primary end of the marital act. The sensation of pleasure is not the guide but rather the accompaniment of the primary end. These two subordinate ends of marriage are elements of the good of marriage but cannot be considered in detachment from the primary end. These ends must be subordinated to the primary end. [5]
Fruits of Vatican II
Yet, although Modernists claim to reject the perennial philosophy of Aristotle and St. Thomas, they cannot escape its teachings. They know that the final cause is what defines something. Thus, a change in the final cause inevitably changes the thing itself. Thus, Justice Kennedy follows the example of the Second Vatican Council in a vain attempt to change or obscure the final cause of marriage. The innovators sought at the Council to overturn this hierarchical definition and topple the primary end from its position of primacy. Their goal was either to invert the order of ends, placing the secondary end, mutual love and support, as the highest end and relegating procreation and education to the secondary end, or institute an incommensurability of the ends of marriage, thus holding them all of equally independent value.
As Dr. Roberto de Mattei writes, “Unfortunately the family morality formulated in the chapter ‘The dignity of matrimony and of the family’ in Gaudium et spes would incorporate the suggestions of the innovators, rather than those of the defenders of traditional morality.” [6] The prophetic criticism of the ideas of the innovators made by Cardinal Ruffini at the Council has come to fulfillment in the acceptance of same-sex “marriage” by Catholics, including Supreme Court justices Kennedy and Sotomayor:
"It seems that the concept of matrimony as we have understood it until now, dogmatically and morally, has to change, at least in practice. But is it possible that the Church was mistaken until now, and that adaptation to today’s society forces us to declare that what was always held to be immoral is [now] in keeping with morality?" [7]
Justice Kennedy’s entire understanding of marriage is dominated by this error that marriage can exist without this primary end and solely for the secondary purpose. As we have seen the mutual love and support of the spouses is a good but a good inextricably connected to the primary purpose for which purpose God created the love, support and pleasure connected to the primary end of marriage. Acts inherently incapable of being oriented to the primary end of marriage are evil.
Kennedy only defines marriage in light of the secondary goods between the spouses: “Its [marriage’s] dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons.” In another place he demonstrates that his entire reasoning is based on a barren vision of marriage—a vision that banishes the primary end of marriage as necessary to its definition. He explains that marriage is “fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold.” Over sixty years before this shameful opinion, in Griswold v. Connecticut, the Supreme Court invalidated a Connecticut law that restricted the sale of contraceptives. The Court declared that married couples had a right to buy contraceptives to thwart the primary end of their use of the marital act.
Thus, Kennedy rightly admits that his holding is contingent upon and consistent with Griswold’s novel redefinition of marriage to exclude the primary purpose of marriage. He explicitly argues that the right to contraception, abortion and same sex “marriage” all flow from the same source—the ejection of the primary purpose of marriage. He says that the choice to marry someone of the same gender is “[l]ike choices concerning contraception, family relationships, procreation, and childrearing [i.e. abortion].”
Citations to Griswold (which is the support for Roe v. Wade and legalized abortion) resound throughout almost every section of his opinion. If we distill Kennedy’s logic down we see it all hinges on his embrace of Griswold’s redefinition of marriage that considers procreation irrelevant to marriage. Since Griswold proclaims that men and women have the right to act directly contrary to the first end of marriage and prevent the attainment of the end of the marital act, then it is unjust to treat two men and two women differently. The latter want to do the same thing that Griswold guarantees, simulate a marriage by engaging in acts that are designed to foil the primary end of marriage.
If Griswold and its false definition of marriage relying solely upon the second and third ends of marriage were correct, then Kennedy’s reasoning is flawless. Denying this right to pursue the secondary and tertiary purposes of marriage to the plaintiffs is unfair. Yet, in reality his reasoning is poisoned at the root. It starts form the false premise of the Supreme Court in the 1950s to which Vatican II a decade later subscribed in its opening to the world. Marriage has been redefined to a relationship the essence of which is solely the mutual support, satisfaction and pleasure of the partners. As erroneously redefined to embrace intentionally unfruitful male/female relationships, there is no reason to support the State’s ban of this title to intentionally unfruitful relationships of the same gender.
Kennedy states: “An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. . . . In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate.” Again he uses a Modernist trick by embedding a true statement within a false one. It is true that a person who through no fault of their own is physically impeded from conceiving a child can still enter into a valid marriage and make use of an act the end of which is not being intentionally thwarted. Yet, “ability” is not the same as a “desire” or “promise” to procreate. A naturally infertile person can still desire or intend the natural end of the marital act even if naturally occurring physical impediments in fact prevent it.
Intention is what matters. Kennedy is wrong. One who intends (desires or promises) to engage in act unsuited to procreation cannot and never could enter into a valid marriage (even if attempting to do so with someone of the opposite gender). The purported marriage would be invalid due to an invalid intention. As we have seen marriage is defined by its end. One who does not intend the necessary end is ipso facto incapable of entering into a valid marriage. One who intends that end but is prevented by an obstacle not placed there by himself is in a completely different situation. He or she does not deny or obstruct the end of marriage even if that end is not attainable in fact.
Likewise, there is a distinct difference between someone who intends to breathe oxygen but cannot do so because he is choking on something obstructing his airway and someone who intentionally shoves something down his throat so as to suffocate and die. Kennedy is correct that the corrupted modern laws of the States do not explicitly required men and women to affirm by promise their intention not to obstruct the primary end of marriage (although the Church has done so in that she will declare a purported marriage invalid if the purported spouses affirmatively intended to prevent procreation).
Yet, Kennedy is incorrect in that those States which had passed the laws struck down by the court have in effect done so. They have denied the state of marriage to those who make it abundantly clear that they are denying the primary end of marriage as it is impossible as a consequence of their actions. These laws are imperfect in that they should require a proper positive intention; yet, they indirectly conform to natural law by excluding some but not all cases of invalid marriages. In any event, the failure of human law to completely conform to the natural law, changes in no way the reality of marriage and its final end.
Kennedy then engages in a typical deception of Modernists who advocate an evolving concept that remains the same. They then claim the evolution has brought wonderful progress and benefits. As we have seen Supreme Court’s jurisprudence on marriage (as exemplified by the legalization of contraception and abortion) has been evolving, or more accurately degenerating since at least Griswold. Kennedy proclaims this radical changes as beneficial: “These new insights [into marriage] have strengthened, not weakened, the institution of marriage.” This is utter nonsense. The institution has not been at a lower point in thousands of years. Divorce, illegitimate births, and non-marital co-habitation dominate society. Divorce has skyrocketed from a rare event to an everyday occurrence. Is there an extended family you know that has not experienced divorce or out of wedlock births?
The rejection of the primary end of marriage has led to the devastation of the institution. This final blow will simply accelerate the trajectory. Kennedy sounds like Pope Francis or another Liberal bishop trying to sell the lie that the Church has flourished since the changes at and after Vatican II by utterly ignoring the devastating drop in every indicator of life in the Church: births, marriages, conversions, ordinations, and religious vocations.
Finally, Kennedy uses another trick of Modernism: to falsely attempt to analogize erroneous change from legitimate development. The liturgical Modernists claimed that because the Pope could make minor adjustments to guide organic development of the liturgy over time, Paul VI could mandate a completely new rite of Mass. In like fashion, Kennedy relates decisions by the Supreme Court which struck down legal impediments to people entering into actual marriages. He cites for example Loving v. Virginia whichinvalidated States’ attempts to legally prohibit interracial marriages. He ignores the critical distinction that the individuals affected by such laws were men and women attempting to enter into marriages that were capable of intending the natural end of the marriage act.
Frankly, to analogize same-sex simulation of marriage to the inter-racial cases is insulting to racial minorities. It equates the denial of their right under natural law to make proper use of marriage and the marital act to the unnatural simulation of it by the plaintiffs in this case. If I were an African American I would be outraged that the legitimate claim to discrimination by my people was being belittled by such misuse.
Notes:
[1] See Aristotle, “Politics,” The Basic Works of Aristotle, bk. I, ch. 2, 1253a, p. 1129.
[2] Ibid., bk I, ch. 2, 1252a24-31, p. 1127-28.
[3] See Alasdair MacIntyre, Whose Justice Which Rationality (Notre Dame: University of Notre Dame, 1988), 109-110.
[4] See e.g. Council of Florence, “Exultate Deo,” Denzinger’s Sources of Catholic Dogma (13th Edition) No. 695; Leo XIII, Rerum Novarum No. 12; Pius XI, Casti Connubii No. 12.
[5] See “Decree of the Holy Office April 1, 1944” in Denzinger The Sources of Catholic Dogma (13th Edition) No. 2295.
[6] Roberto de Mattei, The Second Vatican Council: An Unwritten Story, trans. Michael J. Miller (Fitzwilliam, New Hampshire: Loreto Publications, 2012), 396–97.
[7] Quoted by Mattei, The Second Vatican Council, 394.
Editor’s Note: The following article was published on the website of Catholic Family News. It has been reprinted here with the permission of the author Mr. Brian McCall.
On June 26, 2015, the United States Supreme Court once again covered itself in shame rather than exhibiting true jurisprudence. In Obergefell v. Hodges, 576 U. S. ____ (2015), the Court ruled contrary to reality, that simulated marital acts between people of the same gender are identical to true marital acts and that those engaging in them have the legal right to force all governments and people to recognize these unnatural acts as constituting marriages. In 1857, the same court covered itself in shame by declaring that every person of black African descent regardless of whether slave or free was incapable of being a US citizen and thus had no standing to sue in federal court. Even though the law of the land stated that any person born in the nation would be a citizen, the court distorted reality and simply declared by fiat that although under natural and civil law these people were citizens, they were not legal persons capable of filing suit.
What connects these two cases is the sad fact that the Supreme Court Justice who delivered the unjust opinion of the court in both cases was a Roman Catholic. Justices Roger Taney and Anthony Kennedy both Roman Catholics violated the principles of the Church to which they purported to belong and disgraced the Court and Church. Their example is a warning to us all. But for the grace of God go I. Not simply by claiming to be a Catholic are we protected from committing evil acts. The Church’s traditional doctrine exudes perfection and truth; yet her sons, even the most educated and prestigious, can and often do act contrary to her teaching. Justice Anthony Kennedy’s opinion was joined by fellow Catholic Sonia Sotomayor. The other four Catholic justices although not joining in the majority’s outrage opposed it for reasons that are also rooted in Liberalism.
Kennedy’s Modernism
Justice Kennedy’s opinion relies upon many Modernist errors long condemned by the Church to which he claims to belong but which notwithstanding their condemnation have spread like viruses through the Mystical Body of Christ and American secular society. Sadly Justice Kennedy merely exemplifies the crisis in the Catholic Church of his time. If Modernism is, as St. Pius X taught, the synthesis of all heresies, Justice Kennedy’s shameful opinion is a synthesis of Modernist errors. The opinion reads like a basic syllabus of Modernist distortion of immutable truth. In this article we will see how this sad result was an inevitable consequence of the Modernist errors that have come to dominate the Supreme Court, Justice Kennedy, the Church and our society at large.
First, Kennedy embraces the Modernist concept of evolving truth. What was true for our ancestors for millennia is not necessarily true for us. He frankly admits that everything that all people—philosophers, lawyers, religious leaders—who have written about marriage since before the founding of our country (in fact for millennia) “were based on the understanding that marriage is a union between two persons of the opposite sex.” This is one of the few accurate things he says in his sophistic opinion. As a true Modernist, he often says one thing and then writes the exact opposite. Having stated that marriage has since the beginning of recorded history only existed between men and women, he then contradicts himself by stating that marriage has not been a fixed institution but has been evolving. “The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.” In classic Modernist fashion he asserts the contradiction that something can evolve and remain the same.
This trick relies on a Nominalist metaphysics. Words and concepts are merely empty containers which we use to fill with evolving content. By retaining the same name—marriage—but using the word to mean the direct opposite of what it has always meant, Modernists bridge this gap between continuity and evolution. They empty the word marriage of its meaning and fill it with something contradictory. Yet, the nominal word remains and provides the continuity that they claim exists in their redefinition of reality.
Pius X warned the faithful of this trick in Pascendi. Modernists use traditional words to give the appearance of continuity but infuse them with false novel meanings. Justice Kennedy can thus wax lyrical about the greatness of marriage in a way that in another context would sound correct. Yet, because he has substituted a new definition of marriage, his praise is not of the reality of marriage but this novel misconception.
By claiming that Justice Kennedy redefines marriage I do not mean simply what many pundits claim by such criticism. They mean simply that he redefines marriage as between two people regardless of gender. True this is the practical consequence of his redefinition. But the intellectual deception is much deeper. He redefines marriage in a more radical way that makes the conclusion that the action of marriage can be undertaken by people of the same gender a logical consequent. He does this by adopting the novel definition of marriage’s end or final cause promoted vigorously since the mid-twentieth century.
A Look at Reality
As Aristotle explains we know what things are by knowing their causes. Of which the most important cause is the final cause. The final cause tells us the why—the for what purpose—of a thing. To change the final cause changes the thing itself. The first component of the final cause of marriage is the begetting of children for the propagation of the human race. Marriage is a relation in which two people have a right and a duty to engage in acts which are suited to the conception of children. This definition is known by a higher law than the words which Justice Kennedy purports to be a law but are really no law at all. This higher law is the natural law. This law is written in our nature, in our hearts. We come to know its precepts through aspects of immutable human nature.
Man is a rational animal. As an animal he shares some characteristics with other animals and possesses others unique to him. All animals are inclined to undertake acts which lead to the pro-creation of more like themselves and, to the extent consistent with their particular form, care for their young. As Man is a rational animal, capable of being educated, this inclination includes for Man both the inclination to produce other beings like himself and the “education” of children. Yet, Man is also a social and political animal, [1] and therefore this education must also be directed toward this social aspect of human nature. These inclinations indicate that the procreation and education of children within a stable familial society is a component of the good for Man.
We can thus define marriage as the human relationship which has as its end the fulfillment of this inclination of human nature: the procreation and education of children within a family. We can then understand what defines this relationship in light of that end and as a result understand what society should recognize as a marriage. In the tradition of natural law jurisprudence, we can define what distinguishes the marital relationship from other relationships in light of this precept of natural law discerned from human inclinations. The act that separates marital relationships from other relationships is the use of a particular act, appropriately enough referred to for centuries as the “marital act.” Now what is the function or purpose of this act? Simple observation demonstrates that this act has the function of bringing into existence other creatures like those making use of it. The function of the act, that which it naturally produces, is the procreation of human children. This logical inference is no different from concluding that the function of inhaling is to breathe oxygen and remain alive.
Some try to argue that it is possible to use the marital act for other purposes. Yet the fact that a thing oriented for a purpose is capable of being misused for another purpose does not disprove the fact of its natural inclination. One can use the ability to inhale to breathe in deadly poison, but doing so is not using the act in accordance with its natural function. Modern technological knowledge about the operation of the biological aspects of the marital act has only confirmed what people have always known.
For the act to be oriented towards this function of procreation, a male and a female must be the participants. The use of the marital act (or more accurately a part of it) by two persons of the same gender is inherently not ordered to this end of procreation. The purpose is in no way capable of being attained in this manner. Since the natural law requires us to do good and an aspect of the good for Man is the procreation of more Men, acts oriented to that end are good. Acts which are incapable of achieving, or which frustrate, that end are evil. This conclusion that the marriage relationship by necessity may involve only a man and a woman was seen as a fundamental truth by the pagan philosopher Aristotle. He explains:
"He who thus considers things in their first growth and origin, whether a state or anything else, will obtain the clearest view of them. In the first place there must be a union of those who cannot exist without each other; namely, of male and female, that the race may continue (and this is a union which is formed, not of deliberate purpose, but because, in common with other animals and with plants, mankind have a natural desire to leave behind them an image of themselves). . . ." [2]
Yet, Kennedy skips over this primary end of marriage and leaps to a secondary and dependent purpose. He rightly explains that marriage involves a stable and supportive commitment between two people. Likewise the Church has also always taught that the secondary purpose of marriage is the mutual support of the spouses. Yet, this secondary end is only good in itself when oriented to the primary end because the reason for this mutual support of the spouses is the rearing and education of the children that are the fruit of the marital act in a stable familial society.
Unlike many animals, human beings are born incapable of satisfying even the most basic needs for survival. They require an extended period of complete care by mature humans merely to survive. On a physical level, people are born social animals in that they need to live in society with others to survive. This indicates another aspect associated with the act of procreation. It must be undertaken in a situation in which a stable society exists into which the child conceived of the act can be born. To survive even physically, the child requires the presence of people capable of fulfilling this long-term need for care.
Yet some other animals also require similar periods of physical care. Man is further distinguished from all animals by his use of the faculties of reason and volition. It is also evident that although these powers are present in all humans, they are not capable of being used initially. Their use needs to be habituated through education. Human history also demonstrates that they are capable of being used well or abused. As the Aristotelian philosopher Alasdair MacIntyre has explained humans must be educated to be able to know and choose the good. [3] If modern psychology has proven anything, it has demonstrated the great complexity inherent in this process of training of the reason and the will. Training in the use of these complex, interrelated faculties requires more than mere physical care. It requires education and discipline. These processes extend over several decades (almost one decade before the faculties are even able to be used—the age of reason) and another decade to acquire the discipline of how to use them well.
Again, as modern psychology has demonstrated, the details of each person’s path to making proper use of these faculties is highly unique. They interact with the nuances of each individual’s personality type and surrounding circumstances. Thus, those directing this process must be able to acquire the relevant breadth of experience of the contingent factors present for each new child over the course of time.
This component of the end of marriage, which we have called the education or training of children, requires a fixed, stable society, i.e., a society that is not dissoluble and whose members are not coming and going. As noted earlier, Man is a social animal. He needs stable social interaction to develop and make use of his uniquely human faculties. When people can come and go from a relationship at will, they are not in a society; they are merely sharing, for the moment, living space. The reason and will need to be made to work in harmony with Man’s social nature. This learning is acquired by observing and experiencing others living in society. One living in an environment that is not a society of two adults that can serve as the model for societal interaction is unable to be educated effectively in the use of reason and will in light of his social nature.
Thus, marriage does involve a relationship of mutual love and support of the spouses. But this end is not merely good in isolation it is good because oriented to the primary purpose of marriage. The education of children is an arduous task that requires a society of mutual love and support. Thus, this secondary end of marriage is good and important but is meaningless without its primary end.
Consistent with these truths of natural law, the Church in which Justices Kennedy and Sotomayor were raised has always and everywhere taught that the primary end of marriage is the procreation and education of children. [4] The secondary end, which as secondary must be oriented toward the primary end, is the mutual support of the spouses, and the third end is the quieting of the desires of concupiscence. The second and third ends relate to emotional and physical pleasure. The emotional support of the spouses and the quieting of the appetites are pleasures that accompany the fulfillment of the primary end of the marital act. The sensation of pleasure is not the guide but rather the accompaniment of the primary end. These two subordinate ends of marriage are elements of the good of marriage but cannot be considered in detachment from the primary end. These ends must be subordinated to the primary end. [5]
Fruits of Vatican II
Yet, although Modernists claim to reject the perennial philosophy of Aristotle and St. Thomas, they cannot escape its teachings. They know that the final cause is what defines something. Thus, a change in the final cause inevitably changes the thing itself. Thus, Justice Kennedy follows the example of the Second Vatican Council in a vain attempt to change or obscure the final cause of marriage. The innovators sought at the Council to overturn this hierarchical definition and topple the primary end from its position of primacy. Their goal was either to invert the order of ends, placing the secondary end, mutual love and support, as the highest end and relegating procreation and education to the secondary end, or institute an incommensurability of the ends of marriage, thus holding them all of equally independent value.
As Dr. Roberto de Mattei writes, “Unfortunately the family morality formulated in the chapter ‘The dignity of matrimony and of the family’ in Gaudium et spes would incorporate the suggestions of the innovators, rather than those of the defenders of traditional morality.” [6] The prophetic criticism of the ideas of the innovators made by Cardinal Ruffini at the Council has come to fulfillment in the acceptance of same-sex “marriage” by Catholics, including Supreme Court justices Kennedy and Sotomayor:
"It seems that the concept of matrimony as we have understood it until now, dogmatically and morally, has to change, at least in practice. But is it possible that the Church was mistaken until now, and that adaptation to today’s society forces us to declare that what was always held to be immoral is [now] in keeping with morality?" [7]
Justice Kennedy’s entire understanding of marriage is dominated by this error that marriage can exist without this primary end and solely for the secondary purpose. As we have seen the mutual love and support of the spouses is a good but a good inextricably connected to the primary purpose for which purpose God created the love, support and pleasure connected to the primary end of marriage. Acts inherently incapable of being oriented to the primary end of marriage are evil.
Kennedy only defines marriage in light of the secondary goods between the spouses: “Its [marriage’s] dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons.” In another place he demonstrates that his entire reasoning is based on a barren vision of marriage—a vision that banishes the primary end of marriage as necessary to its definition. He explains that marriage is “fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold.” Over sixty years before this shameful opinion, in Griswold v. Connecticut, the Supreme Court invalidated a Connecticut law that restricted the sale of contraceptives. The Court declared that married couples had a right to buy contraceptives to thwart the primary end of their use of the marital act.
Thus, Kennedy rightly admits that his holding is contingent upon and consistent with Griswold’s novel redefinition of marriage to exclude the primary purpose of marriage. He explicitly argues that the right to contraception, abortion and same sex “marriage” all flow from the same source—the ejection of the primary purpose of marriage. He says that the choice to marry someone of the same gender is “[l]ike choices concerning contraception, family relationships, procreation, and childrearing [i.e. abortion].”
Citations to Griswold (which is the support for Roe v. Wade and legalized abortion) resound throughout almost every section of his opinion. If we distill Kennedy’s logic down we see it all hinges on his embrace of Griswold’s redefinition of marriage that considers procreation irrelevant to marriage. Since Griswold proclaims that men and women have the right to act directly contrary to the first end of marriage and prevent the attainment of the end of the marital act, then it is unjust to treat two men and two women differently. The latter want to do the same thing that Griswold guarantees, simulate a marriage by engaging in acts that are designed to foil the primary end of marriage.
If Griswold and its false definition of marriage relying solely upon the second and third ends of marriage were correct, then Kennedy’s reasoning is flawless. Denying this right to pursue the secondary and tertiary purposes of marriage to the plaintiffs is unfair. Yet, in reality his reasoning is poisoned at the root. It starts form the false premise of the Supreme Court in the 1950s to which Vatican II a decade later subscribed in its opening to the world. Marriage has been redefined to a relationship the essence of which is solely the mutual support, satisfaction and pleasure of the partners. As erroneously redefined to embrace intentionally unfruitful male/female relationships, there is no reason to support the State’s ban of this title to intentionally unfruitful relationships of the same gender.
Kennedy states: “An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. . . . In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate.” Again he uses a Modernist trick by embedding a true statement within a false one. It is true that a person who through no fault of their own is physically impeded from conceiving a child can still enter into a valid marriage and make use of an act the end of which is not being intentionally thwarted. Yet, “ability” is not the same as a “desire” or “promise” to procreate. A naturally infertile person can still desire or intend the natural end of the marital act even if naturally occurring physical impediments in fact prevent it.
Intention is what matters. Kennedy is wrong. One who intends (desires or promises) to engage in act unsuited to procreation cannot and never could enter into a valid marriage (even if attempting to do so with someone of the opposite gender). The purported marriage would be invalid due to an invalid intention. As we have seen marriage is defined by its end. One who does not intend the necessary end is ipso facto incapable of entering into a valid marriage. One who intends that end but is prevented by an obstacle not placed there by himself is in a completely different situation. He or she does not deny or obstruct the end of marriage even if that end is not attainable in fact.
Likewise, there is a distinct difference between someone who intends to breathe oxygen but cannot do so because he is choking on something obstructing his airway and someone who intentionally shoves something down his throat so as to suffocate and die. Kennedy is correct that the corrupted modern laws of the States do not explicitly required men and women to affirm by promise their intention not to obstruct the primary end of marriage (although the Church has done so in that she will declare a purported marriage invalid if the purported spouses affirmatively intended to prevent procreation).
Yet, Kennedy is incorrect in that those States which had passed the laws struck down by the court have in effect done so. They have denied the state of marriage to those who make it abundantly clear that they are denying the primary end of marriage as it is impossible as a consequence of their actions. These laws are imperfect in that they should require a proper positive intention; yet, they indirectly conform to natural law by excluding some but not all cases of invalid marriages. In any event, the failure of human law to completely conform to the natural law, changes in no way the reality of marriage and its final end.
Kennedy then engages in a typical deception of Modernists who advocate an evolving concept that remains the same. They then claim the evolution has brought wonderful progress and benefits. As we have seen Supreme Court’s jurisprudence on marriage (as exemplified by the legalization of contraception and abortion) has been evolving, or more accurately degenerating since at least Griswold. Kennedy proclaims this radical changes as beneficial: “These new insights [into marriage] have strengthened, not weakened, the institution of marriage.” This is utter nonsense. The institution has not been at a lower point in thousands of years. Divorce, illegitimate births, and non-marital co-habitation dominate society. Divorce has skyrocketed from a rare event to an everyday occurrence. Is there an extended family you know that has not experienced divorce or out of wedlock births?
The rejection of the primary end of marriage has led to the devastation of the institution. This final blow will simply accelerate the trajectory. Kennedy sounds like Pope Francis or another Liberal bishop trying to sell the lie that the Church has flourished since the changes at and after Vatican II by utterly ignoring the devastating drop in every indicator of life in the Church: births, marriages, conversions, ordinations, and religious vocations.
Finally, Kennedy uses another trick of Modernism: to falsely attempt to analogize erroneous change from legitimate development. The liturgical Modernists claimed that because the Pope could make minor adjustments to guide organic development of the liturgy over time, Paul VI could mandate a completely new rite of Mass. In like fashion, Kennedy relates decisions by the Supreme Court which struck down legal impediments to people entering into actual marriages. He cites for example Loving v. Virginia whichinvalidated States’ attempts to legally prohibit interracial marriages. He ignores the critical distinction that the individuals affected by such laws were men and women attempting to enter into marriages that were capable of intending the natural end of the marriage act.
Frankly, to analogize same-sex simulation of marriage to the inter-racial cases is insulting to racial minorities. It equates the denial of their right under natural law to make proper use of marriage and the marital act to the unnatural simulation of it by the plaintiffs in this case. If I were an African American I would be outraged that the legitimate claim to discrimination by my people was being belittled by such misuse.
Notes:
[1] See Aristotle, “Politics,” The Basic Works of Aristotle, bk. I, ch. 2, 1253a, p. 1129.
[2] Ibid., bk I, ch. 2, 1252a24-31, p. 1127-28.
[3] See Alasdair MacIntyre, Whose Justice Which Rationality (Notre Dame: University of Notre Dame, 1988), 109-110.
[4] See e.g. Council of Florence, “Exultate Deo,” Denzinger’s Sources of Catholic Dogma (13th Edition) No. 695; Leo XIII, Rerum Novarum No. 12; Pius XI, Casti Connubii No. 12.
[5] See “Decree of the Holy Office April 1, 1944” in Denzinger The Sources of Catholic Dogma (13th Edition) No. 2295.
[6] Roberto de Mattei, The Second Vatican Council: An Unwritten Story, trans. Michael J. Miller (Fitzwilliam, New Hampshire: Loreto Publications, 2012), 396–97.
[7] Quoted by Mattei, The Second Vatican Council, 394.
After 9 years in private practice with the international law firm Dechert LLP, Professor McCall joined the faculty of the University of Oklahoma College of Law in 2006. As a practicing lawyer, he represented a variety of companies and banks in international merger and acquisition and corporate finance transactions. Seven years were spent in the firm's London office as an Associate and Partner. Professor McCall teaches classes in Contracts, Payment Systems, Secured Transactions and Corporate Finance. He publishes in the field of Commerical and Business law with an emphasis on the jurisprudence and philosophy of economic legal regulation. His scholarly research is rooted in a natural law jurisprudence.
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