WHY SAME-SEX MARRIAGE IS UNJUST

James S. Spiegel

Proponents of same-sex marriage often defend

their view by appealing to the concept of justice. But
a significant argument from justice against same-sex
marriage can be made also, as follows.
Heterosexual union has special social value

Think Summer 2016 † 81

because it is the indispensable means by which
humans come into existence. What has special
social value deserves special recognition and
sanction. Civil ordinances that recognize same-sex
marriage as comparable to heterosexual marriage
constitute a rejection of the special social value of
heterosexual unions, and to deny such special social
value is unjust.

Arguments against same-sex marriage tend to fall into

two categories. Some are theological in nature, appealing
either to Scripture or to the concept of natural law. These
approaches ultimately reject same-sex unions on the
grounds that marriage is a divinely ordained institution
reserved for one man and one woman. Such arguments
have limited force in the public square, however, as they
controversially assume that theological views may properly
serve as a foundation for civil laws. Non-theological argu-
ments are typically consequentialist in nature, insisting that
legalization of same-sex marriage would have pernicious
social ramifications. The difficulty with such arguments is
that they lean heavily on predictive claims for which available
supporting data is contentious.
In addition to critiquing the above arguments, proponents
of same-sex marriage often defend their position by

doi:10.1017/S1477175616000075 # The Royal Institute of Philosophy, 2016

Think 43, Vol. 15 (Summer 2016)

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 appealing to the concept of justice. To refuse homosexuals
legal sanction of their unions is simply unfair, they argue. If
heterosexual couples are permitted to marry, then it is only
just that homosexuals should enjoy this same freedom.
Critics of same-sex marriage have had little to say in
response to this line of reasoning, perhaps creating the
impression in some minds that this aspect of their case
actually succeeds, as it is sometimes said, qui tacet con-
Spiegel Why Same-Sex Marriage is Unjust † 82

sentire videtur (silence is understood to be consent). Here I

would like to challenge this impression – not with a mere
rebuttal of the pro-same-sex marriage argument from
justice, but by arguing that same-sex marriage is essential-
ly unjust. This will also provide a much needed alternative
to theological and consequentialist arguments against
same-sex marriage.

The Argument from Justice

A few preliminary remarks are in order. First, I will

assume a general and widely recognized conception of
justice as giving to each its due. There are, of course,
many social, economic, and political contexts in which the
concept of justice is applied, and in light of each, context-
specific conceptions have been distinguished. Thus, we
may refer to distributive justice, commercial justice, retribu-
tive justice, and procedural justice, to name a few. But what
all of these ideas has in common is the concept of fairness
or giving to each its due. My argument below pivots on this
fundamental, long-standing intuition about the nature of
justice.
Second, I will assume that a society’s laws, rights, and
privileges ought to reflect its shared values. In particular,
those goods that are crucial to the flourishing of a society
deserve greater respect and civil sanction than those which
are not. And those social institutions which are essential to
the very survival of human civilization warrant the greatest
respect and civil sanction of all.

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 Lastly, I take it for granted that the most, or at least
among the most, valuable goods in any civil society are the
human beings that comprise that society.1 Furthermore, by
extension, the means by which humans come into the
world also deserves special respect and civil sanction. That
is, if the existence of human civilization is, to put it mildly,
especially valuable, then the heterosexual union which
alone can bring new humans into this world warrants sig-

Think Summer 2016 † 83

nificant honorific acknowledgment by any civil society. And
the fact that every known civilization in human history has
done just this is testament to the fact that this is a univer-
sally shared intuition.
As I have laid out these basic assumptions, I trust the
gist of my reasoning is now apparent. Here is a formal
summation of the argument:

1. Heterosexual union is the indispensable means

by which humans come into existence and
therefore has special social value (indeed, the
greatest possible social value because it is the
first precondition for the existence of society as
well as its continuation).
2. What has special value to human society
deserves special social recognition and
sanction.
3. Civil ordinances which recognize same-sex
marriage as comparable to heterosexual
marriage constitute a rejection of the special
value of heterosexual unions.
4. To deny the special social value of what has
special social value is unjust.
5. Therefore, same-sex marriage is unjust.

Now for some disclaimers and clarifications. First, notice

that the argument does not assume that the only purpose
of marriage is procreation. Other traditionally recognized
functions of sex, including relational unity, character devel-
opment, and pleasure, may be heartily affirmed. For the

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 purposes of this argument, all of these benefits could like-
wise be granted of homosexual relations. Moreover, I
suppose that one could concede that procreation is not
even a purpose of heterosexual relations. In fact, my argu-
ment does not require any notion of sexual or marital tele-
ology. The crucial assumption regarding sex is
straightforwardly factual, namely that heterosexual relations
are the sole means by which humans come into the world
Spiegel Why Same-Sex Marriage is Unjust † 84

and thus provide a unique and profound social good that

deserves significant public recognition.
Also, my argument does not imply a denial of any civil
rights of homosexuals. What it implies is that homosexual
unions do not deserve the same level of civil sanction as
heterosexual unions, such as the latter enjoys through
marital contracts. This does not deny anyone’s civil rights
because marriage is not a right but a privilege. Civil rights
include, for example, basic freedoms of speech, assembly,
and legal representation when one is accused of a crime.
They apply to all citizens regardless of their race, age, reli-
gion, or sexual orientation. By contrast, civil privileges,
such as the freedom to operate an automobile, practice
law, or join the armed forces, are contingent upon such
factors as age, sensory functionality, and demonstration of
certain physical and/or intellectual aptitudes. Marital con-
tracts, like all such privileges, must be applied for and
certain criteria must be satisfied in order for applicants’
requests to be granted, including a minimum age require-
ment and applicants’ demonstration that they are not
closely related.2
Thirdly, I want to highlight the fact that the argument in
no way suggests that the institution of same-sex marriage
would constitute a denial of all value of heterosexual
unions. I do not consider this to be the case, nor does the
argument have this implication. If same-sex marriage
becomes a widely accepted practice or even as common
as traditional marriage, there is no reason to believe that
the latter would lose all social sanction. But this fact is con-
sistent with my basic claim, which is that same-sex

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 marriage undermines the unique social sanction which het-
erosexual unions deserve, precisely because what they
contribute to society is uniquely valuable, viz. the produc-
tion of new human beings. So the problem is not that the
institution of same-sex marriage implies that there is no
value in heterosexual unions. Rather, it is their special
value that is denied, and this is sufficient to constitute a
serious breach of social justice.

Think Summer 2016 † 85

Finally, my argument in no way implies, nor should it be
taken even to suggest, that proponents of same-sex mar-
riage intend to reject or undermine the special value of het-
erosexual union. On the contrary, I suspect this thought
never enters the minds of most same-sex marriage propo-
nents, whose aim is simply that homosexual couples enjoy
public affirmation of their mutual commitment, particularly in
the form of such benefits as immigration, tax breaks,
bereavement leave, social security survivor benefits, veter-
an’s discounts, and hospital and prison visitation privi-
leges.3 But however strongly homosexuals and same-sex
marriage advocates might acknowledge the unique procre-
ative value of heterosexual unions, this does change the
fact that the institution of same-sex marriage, insofar as it
is a public recognition of such unions on the same level as
heterosexual unions, is in itself a de facto denial of the
special value of the latter.
Perhaps an analogy will help here. The Purple Heart is
awarded to American soldiers who have been wounded or
killed in battle while serving our country. Suppose a pro-
posal was made to extend this award to all military person-
nel who see battle, not just those who are wounded or
killed. Those who advocated this change might argue as
follows. ‘We believe that all soldiers who fight for their
country are entitled to a Purple Heart. After all, they too
demonstrate extreme courage and commitment, usually just
as much as those who are wounded. And by extending this
award to all who serve in battle we by no means intend to
diminish the valor of those who are wounded. On the con-
trary, we affirm and honor their service as much as

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 anyone.’ Surely such an argument misses the point that
extending the Purple Heart award in this way defeats the
purpose of honoring those who have made a special sacri-
fice for their country, significantly greater than other soldiers
because of the physical harm they have endured. And
even the purest intentions of those who would advocate for
such a change would not diminish the fact that altering the
application of the award would be unjust. So it goes in the
Spiegel Why Same-Sex Marriage is Unjust † 86

case of advocating for same-sex marriage. One can fer-

vently deny any intention to diminish traditional marriage
and its special contribution to society. But, as history has
all too repeatedly shown, the absence of intention to do
injustice is no guarantee that an individual’s actions or a
government’s laws are just. And the institution of same-sex
marriage constitutes yet more proof of this fact.

Objections and Replies

I now want to address several possible lines of criticism

of my argument. Some might take aim at the first premise
by denying that heterosexual unions are an indispensible
means of creating new human beings. While the existence
of human beings as a species and the preservation of our
kind throughout history has so far been a consequence of
heterosexual unions, it does not follow that this must
always be the case. Given the continuing advances of
reproductive technology, it is conceivable (no pun intended)
that in the future heterosexual union could become all but
irrelevant to the propagation of our species. Already ex
utero conceptions are a commonplace in the context of in
vitro fertilization, so coitus is no longer necessary for
human reproduction. And developments in genetic engin-
eering, particularly through cloning technology, might even-
tually bring the day when not even the combination of a
female egg and a male sperm is necessary.
To this objection I have three replies. First, while in vitro
fertilization is indeed quite common today, it is far from

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 being the standard means of human reproduction.
Moreover, this technology does employ the combination of
male and female germ cells. Second, the envisioned situ-
ation in which the combination of egg and sperm is ren-
dered obsolete is merely a theoretical possibility at this
point. And if current cloning technology is any indication, it
might never be possible in reality. Human cloning experi-
ments have yet to yield any documented successes

Think Summer 2016 † 87

beyond the embryo stage. And there is good reason to
think it will be a very long time – if ever – before cloning
technology could result in a healthy human being, even if it
could produce a viable fetus. Until then, heterosexual
unions do remain the indispensable means by which
human beings come into this world and all societies are
preserved. Lastly, even if in the distant future genetic engin-
eering made heterosexual unions reproductively obsolete,
this would not change the fact that human civilization
began through heterosexual unions and that for millennia
such unions have been the indispensible means of human
propagation. For this reason, for as long as our species
lasts, we will all be indebted to heterosexuality in the most
profound sense.
A second objection to my argument might focus on the
fact that not all traditional marriages produce children. In
fact, some married couples cannot reproduce for a variety of
reasons, whether due to medical problems or advanced
age. So, from the standpoint of justice, how would permitting
homosexual marriages be any different than allowing mar-
riages involving infertile heterosexual couples? Robert P.
George has effectively addressed this concern by noting that
while some traditional marriages might not be reproductive
in effect, they are nonetheless reproductive in type. In a
passage that gestures toward the sort of argument from
justice I am making here, he notes that ‘Reproductive-type
acts have unique meaning, value, and significance because
they belong to the class of acts by which children come into
being. More precisely, these acts have their unique meaning,
value, and significance because they belong to the only

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 class of acts by which children can come into being’
[George, Robert P., ‘“Same Sex Marriage” and “Moral
Neutrality”’ in Homosexuality and American Public Life, ed.
Christopher Wolfe (Dallas: Spence Publishing, 1999).
p. 144]. So the fact that some heterosexual couples are
infertile does not diminish the fact that heterosexual unions
provide a unique and great social good and that, conse-
quently, recognizing same-sex marriage would be unjust.
Spiegel Why Same-Sex Marriage is Unjust † 88

Also, it must be borne in mind that the lack of precision

in doling out special honors to certain groups is not suffi-
cient grounds for abandoning all such honors. For example,
to use another military analogy, Veterans Day honors all
American veterans, including those who, like my own
father, never saw combat but did office work while in the
service. And war memorials, such as the Vietnam War
Memorial in Washington, D.C., sometimes list the names of
soldiers who died of natural causes, such as heart attacks
or disease, whether during battle or in bivouac. In these
cases, we affirm the propriety or at least the unavoidability
of including such people in this honor despite their lack of
perfect exemplification of the ideals recognized by the
memorial. So, again, lack of perfect precision in bestowing
special social honors and privileges is not grounds for
rejecting them altogether.
A third objection to my argument addresses the assump-
tion that legally recognized marriages are the only means
by which heterosexual unions can be publicly endorsed.
Can’t the concern of this argument be satisfied by permit-
ting same-sex marriage while giving heterosexual mar-
riages an ‘extra’ sanction or acknowledgment to preserve
their special role in society? In other words, aren’t there
other ways to recognize and affirm the unique social bene-
fits of heterosexual unions? This objection raises practical
issues in a way that the previous objections do not. And it
is tempting to embark on a discussion of some of these
issues, such as what form such an additional endorsement
of traditional marriage could take or the difficulty of ensur-
ing that, with the legalization of same-sex marriage, some

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 higher level of social sanction of traditional marriage could
be established. But the most direct way of meeting this
objection might be simply to note that if same-sex mar-
riages are permitted, then any extra endorsement of hetero-
sexual marriage would be merely symbolic and therefore
trivial. Only truly significant benefits accorded to heterosex-
ual married couples are sufficient to justly honor the special
social value of such unions. If the current social benefits of

Think Summer 2016 † 89

marriage are extended to homosexual couples, then it’s
hard to imagine what substantive advantages or privileges
could be reserved for heterosexual unions. For this reason
it appears that any such ‘extra endorsement’, from a public
policy standpoint, would amount to little more than damning
with faint praise.

Conclusion

I have argued that same-sex marriage is essentially

unjust, because to the extent that it is legalized it constitu-
tes an elimination of the special sanction of traditional mar-
riage, as warranted by the unique and significant social
goods that heterosexual unions provide. For this reason,
same-sex marriage should be strongly opposed, at both
state and federal levels, irrespective of any theological or
consequentialist considerations which might be relevant to
the subject.

James Spiegel is Professor of Philosophy at Taylor

University in Upland, Indiana. His books include The
Benefits of Providence, The Love of Wisdom, and How to
be Good in a World Gone Bad. JMSPIEGEL@TAYLORU.
EDU

Notes
1
I take this to be obvious, and I would not bother to mention
it except for the fact that my argument pivots on this point.
Shakespeare’s Hamlet entertained the question whether it is
better to live or not to live. Although some would answer

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 negatively regarding his or similarly agonizing cases, as
applied to the existence of humanity in toto the correct answer
to Hamlet’s question is clearly affirmative.
2
Furthermore, as some have observed, homosexuals do
enjoy the privilege to marry, so long as they do so with
someone of the opposite sex. This might seem to be an empty
or even mocking point because it ignores the distinct sexual
desires of homosexuals. But there are many other civil privi-
leges the criteria for which are similarly unyielding to the
Spiegel Why Same-Sex Marriage is Unjust † 90

unique desires of particular citizens, such as the disqualifica-

tion of the severely visually impaired when it comes to obtain-
ing a driver’s license or joining the armed forces.
3
By most counts, there are over 1,100 benefits provided to
married couples by the U.S. federal government and many
more benefits provided at the state level, including automatic
inheritance, divorce protections, burial determination privileges,
automatic housing lease transfer, domestic violence protection,
joint bankruptcy privileges, and wrongful death benefits.

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