For quite some time, I have been discussing and debating the question of same-sex “marriage”.  I regularly defend the authentic conjugal definition of marriage that has been enshrined in our social and legal tradition — a life-long, exclusive union of one man and one women dedicated to their good and for the procreation and upbringing of children.

This debate has been going on for years now.  What continues to astonish me is how vapid are the arguments offered by those who would re-define marriage to leave gender and children out.  Examples of this weak attempt to overturn the immemorial definition of marriage can be found in this op-ed, or this one.

The arguments typically do not embody reasoned attempts to persuade through logic.  Instead, they are are emotionally-driven appeals to rectify hard cases, calls for “equality” without understanding that different things should be treated differently, demands for a laundry list of legal rights typical of special interest pleading, and, frequently, naked attempts to exclude religious people from the public debate.  They don’t engage questions of the effect of redefining marriage on the common good or future generations.  They ignore the incongruity of redefining marriage for everyone, to satisfy the interests of a statistically tiny number of people who want same-sex unions.  When all else fails, polling data is trotted out, as if a transitory snapshot of public opinion is infallible in its wisdom.  When even that fails, defenders of marriage are simply called “mean” (as I was, recently, in a college classroom).

In contrast, the arguments we offer in the defense of real marriage are multiple and philosophically sophisticated.  This argument relies on the nature of the human person and the truth and meaning of human sexuality.  It also relies on the lessons of common sense, experience, and social science about the best outcomes for adults and children.  The concern expressed consistently is the effect of redefining marriage on the public messages that the law sends to men and women, particularly about the importance of marriage for children and for society as a whole.  We can offer ready logical answers to the common objections to the conjugal definition of marriage, such as the false comparison to interracial marriage.

Our approach is to appeal to the obligation to make public policy for the common good, to pay attention to all consequences of law-making (especially the long-term and secondary effects), and not to make law based on the particular desires of small interest groups.

A perfect example of this argument can be found in this op-ed by Robert George, Ryan Anderson and Sherif Gergis, or Michael Hannon’s on-line essay.

In so many ways, this debate is coming to resemble the debate about abortion.  Science and logic (not to mention tradition) all establish the humanity of the unborn, but these don’t seem to matter to our courts and legislatures.  Likewise, in the ongoing debate about marriage, reason and the common good of adults and children — and future generations — continues to be brushed aside by emotion and special interest politics.

Now that the post-modern ideologues and feckless careerists of the New York State Legislature have re-defined marriage to mean something that it cannot mean, we can reflect on the absurdity that they have created.

According to the Orwellian-named “Marriage Equality Act”, civil marriage under the laws of New York State will now be defined as a civil contract between any individuals (two, for the time being) who choose to consent to it, “regardless of whether the parties to the marriage are of the same or different sex”.  In other words, sex doesn’t matter to marriage — only consent does.

But another provision of New York State law already holds that sex not only matters to marriage, but that normal male/female sexual intercourse is the standard for whether a marriage is valid.  And the “Marriage Equality Act” didn’t change that law at all.

The statute in question can be found in Section 7 of the Domestic Relations Law, which is entitled “Voidable Marriages”.  It reads, in part:

A marriage is void… if either party thereto: (3) Is incapable of entering into the married state from physical cause.

This is an ancient principle of the law, a legacy that comes to us from the English common law and which finds its roots in ecclesiastical law.  The courts have always interpreted it to mean that the couple must be physically capable of consummating the marriage by having normal male/female sexual intercourse, what one court once delicately called “natural and perfect coition” — or, to use the traditional Latin phrase, “copula vera “.  The reason behind this law is, of course, the immemorial and universal recognition that ordinary sexual relations between men and women, the kind that potentially may lead to the procreation of children, is essential to the very nature of marriage.

So there’s the absurdity that has been produced by the “Marriage Equality Act”.  We have one provision of the law saying that that persons of the same sex may validly enter into marriage, even though they would obviously not be engaging in normal sexual intercourse.  But we have another part of the law that holds that ordinary sexual intercourse between a man and woman is an essential part of the definition of marriage itself.

I have no illusions about this.  The “Marriage Equality Act” will not be struck down by the courts because it conflicts with another part of the law.  I am confident that, if the issue ever arose, a Humpty Dumpty court will feel free to re-define “copula vera” to reflect the fallacy of same-sex “marriage”.

But the fact remains.  The “Marriage Equality Act” is on its face an absurd piece of legislation.  And it is directly rebuked by history, tradition, common sense — and New York State law itself.