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The Problem of ‘Nature’ in Family Law
Daniel Cere
McGill University
Symposium on Jurisprudence of Marriage and Committed Relationships
Boston College, March 13, 2009
Introduction
Current debates over the meaning of marriage are implicated in a wider set of debates over the
meanings of “nature,” the “natural,” the “body, and the “biological” in law.1 David Delaney’s
Law and Nature provides a comprehensive (and entertaining) survey of the varied legal
renderings of “nature.” His study explores legal theories and cases dealing with natural disasters,
wilderness preserves, endangered species, animal experimentation, reproductive technologies,
bestiality, genetic screening, and criminal pathologies. Curiously, Delaney’s only investigation
into the interface of law, nature, and sexual intimacy turns out to be his exposé of law’s interest
in bestiality. Bestiality (or “zoophilia”), Delaney explains, is part of a wide class of sexually
intimate acts uncontaminated by any extraneous procreative concerns. Bestiality’s complete
disconnect from human procreative potential is usually assumed to be the basis for the traditional
condemnation of bestiality as “unnatural.”2 However, according to Delaney, law’s
condemnation of zoophilia is not really due to the fact that such acts “violate” nature, but due to
the fact that they violate an unwritten sexual code of exclusive humanism that restricts erotic
intimacy to the domain of the human. Zoophiles are too intimately and erotically involved with
the natural. Their “back to nature” aspirations aim at fusion with the natural by crossing and
penetrating the species divide.3
Richard Collier states that, “Family law, perhaps more than any other area of legal study, is concerned with this
relationship of law and nature, with how the ‘natural’ connects, not just to the intimate, personal and ‘private parts’
of life—to sexual desires and activities, love and personal commitments—but also to ideas of community, sociality,
and citizenship.” Richard Collier, “Male Bodies, Family Practices,” in Body Lore and Laws, edited by Andrew
Bainham, Shelley Day Schlater, and Martin Richards, Oxford, Portland Oregon: Hart Publishing, 2002, pp.154
2
David Delany, Law and Nature, pp.6, 244. This is not to suggest that the zoophiles should be credited for
accomplishing this disconnect. According to England’s distinguished family law scholar, Andrew Bainham, that
honor should go to a Mr. Baxter. According to British common law, marriage must be “consummated” and this
requires “full penetration of the vagina by the penis.” Mr. Baxter did accomplish this feat, but he happened to do it
while wearing a condom. In a 1947 law case over the question of the “nullity” of the Baxters’ marriage that
eventually reached the House of Lords, the legal status of Mr.Baxter’s condomed penis was deliberated upon by the
honourable members. In a decision that, according to Bainham, “has massive implications for us today,” the Lords
ruled that Mr. Baxter’s condomed penis in Ms. Baxter’s vagina did constitute a conjugal “consummation.” Bainham
argues that one can trace a direct line from this “hugely important” decision to contemporary debates over the
conjugal rights of same-sex and transsexual couples. “Sexualities, Sexual Relations and the Law,” in Body Lore and
Laws, edited by Andrew Bainham, Shelley Day Schlater, and Martin Richards, Oxford, Portland Oregon: Hart
Publishing, 2002, pp.174-75
3
David Delany, Law and Nature, pp.6, 258.
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However, a new set of legal debates and court challenges over nature, humanity and conjugal
intimacy have surfaced in the last half decade requiring some updating of Delaney’s account.
These developments have been forcing zoophiles to make room for somewhat more conventional
folk determined to affirm connections between conjugal intimacy and nature. The zoophiles now
have company, namely defenders of the historic common law definition of marriage.4
Many legal scholars and some courts have dismissed these invocations of nature as fruitless
efforts to anchor human sexuality in largely discredited ideological frames. But many others
have been swayed by these appeals to the ‘natural’ nature of opposite-sex conjugality. If the
critics prove to be successful in defeating these appeals, then zoophiles can bide their time and
eventually reassert their claim to exclusive legal rights over the domain of ‘natural’ sexuality.
However, the verdict is still out, and legal debates over the ‘nature’ and ‘naturalness’ of conjugal
marriage are currently drowning out the nature-loving conjugal concerns of zoophiles.
1.1 Beyond Nature and the Body
“‘Nature,’ as we know, is a word contrived in order to introduce as many equivocations as
possible into all the theories, political, legal, artistic, or literary, into which it enters.”(Sir Leslie
Steven). Stephen’s introductory comments to his discussion of Hobbes’s doctrine of the “state of
nature” highlight the conceptual slipperiness of “nature.”5 His one-hundred-year old remarks
also serve to correct near-sighted impressions that insight into the complex, elusive and
promiscuous meanings of ‘nature’ should be credited to the conscious-raising power of
contemporary postmodernism.6
Less than twenty years ago, Marilyn Strathern lamented that the concept of “nature” was a now a
firmly established and fixed feature of contemporary discourse: “On the face of it, nothing today
seems further from erosion than the concept of nature.”7 That observation is definitely dated.
Today, concepts of ‘nature’ or the ‘natural’ are widely perceived to be complex, multivocal and
elusive. According to Delaney, ‘nature’ is an unwieldy, polysemous, ambiguous, unstable,
radically context-dependent, contingent, and an ‘ideologically saturated’ concept that requires
scare quotes when used in polite company.8
4
Apologies to defenders of the historic common law definition of marriage who may take offense at this association
– and to any offended zoophiles.
5
Sir Leslie Stephens, Hobbes, London: MacMillan, 1904, pp.173.
6
Such impressions and/or claims can derive from the variety of more recent studies on the equivocality of “nature.”
See Klaus Eder, The Social Construction of Nature: A Sociology of Ecological Enlightenment, London: Sage, 1996;
David Delaney, Law and Nature, Cambridge: Cambridge University Press, 2003; Kate Soper, What is Nature?
Culture, Politics and the Non-Human. Oxford and Cambridge Ma.: Blackwell, 1995; Donna Haraway, Simians,
Cyborgs, and Women: The Reinvention of Nature, New York: Routledge, 1991. Recognition of the equivocality of
words is longstanding feature of Western literary scholarship and biblical criticism.
7
The context of her comments is a discussion of reproductive technologies: “Against a background of concern about
the natural environment, constant reference is made to what is also natural in human behaviour, and nowhere is it
more emphasized than in the debates over the new reproductive technologies.” Marilyn Strathern, Reproducing the
Future: Essays on Anthropology, Kinship and the New Reproductive Technologies, Manchester: Manchester
University Press, 1992. 55.
8
David Delaney, Law and Nature, pp. 15-17.
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Post-naturalism is pervasive in the post-Foucaultian world of sexual scholarship. Susan Bordo
declares that “there is no ‘natural’ body. ...Our bodies, no less than anything else that is human,
are constituted by culture.”9 Similarly, David Halperin insists that “sexuality is not a somatic
fact; it is a cultural effect.”10 Major trajectories of sociological and legal scholarship are
constructing theories of the body and gender that refuse any conversation with the discipline of
biology.11 Suspicions of essentialist discourses on the body run so high in constructionist circles
that Anne Bottomley feels compelled to adopt the acronym TB (“the body”) in order to reinforce
her emphasis on “the empty/plenitude” of this semantic site.12
The body is view as a social “imaginary” deeply inscribed with gender specificity. 13 Sara
Crawley and K.L. Broad argue “the consistency of gender performativity causes the belief in
discrete biological sex categories, not vice versa... consistent dualistic gendered performances of
the body give the illusion that masculinity and femininity and discrete categories of biological
sex are real... gender feels ‘natural’ because it is well practices via performativity.”14 The body
is a “performative construction,” a script that is “naturalized through repetition.”15 Given the
dominance of certain scripts of corporeality, any focus on the body inevitably tends to gravitate
towards a focus on the heterosexual binary of male/female.
Ovid’s famous opening line of the Metamorphosis stating his “bent” to poetically revel in the
endless transformation of “bodies changed into new forms” has taken on canonical status in the
constructionist discourses on the body.16 A curious mix of biological and constructionist
concepts dubbed the “new materialism” attempts to offers an account of biology that emphasizes
the fluidity and plasticity of the material body itself.17 In this “new form of ‘corporeal
materialism’” the body itself is perceived to be “nomadic” and “performative”: “the body is seen
as an inter-face, a threshold, a field of intersection of material and symbolic forces; it is a
surface where multiple codes of power and knowledge are inscribed; it is a construction that
transforms and capitalises on energies of a heterogeneous and discontinuous nature.” 18 Part of
the collaborative work of legal constructionist theories is to “burst the binary bubbles” of
Susan Bordo, “Anorexia Nervosa: Psychopathology and the Crystallisation of Culture,” in Irene Diamond and Lee
Quinby, eds., Feminism and Foucault: Reflections on Resistance Boston: Northwestern University Press, 1988, pp.
90.
10
David Halperiin, “Is there a History of Sexuality?” in The Lesbian and Gay Studies Reader, edited by H.
Abelove, M. A. Barale, and D. M. Halperin, New York: Routledge, 1993, pp. 416
11
Tim Newton, Nature and Sociology, London and New York: Routledge, 2007, pp.20.
12
Anne Bottomley, “The Many Appearances of the Body in Feminist Scholarship,” pp.127, fn.2.
13
Moira Gatens, Imaginary Bodies: Ethics, Power and Corporeality, London and New York: Routledge, 1994.
14
Sara Crawley and K.L. Broad, “The Construction of Sex and Sexualities” in in Handbook of Constructionist
Research edited by James A. Holstein and Jaber F. Gubrium, New York, London: the Guilford Press, 2008, pp.548.
15
Richard Collier, “Male Bodies, Family Practices,” in Body Lore and Laws, edited by Andrew Bainham, Shelley
Day Schlater, and Martin Richards, Oxford, Portland Oregon: Hart Publishing, 2002, pp.153.
16
For example, Ovid’s opening line introduces Anne Bottomley’s essay, “The Many Appearances of the Body in
Feminist Scholarship,” in Body Lore and Laws, edited by Andrew Bainham, Shelley Day Schlater, and Martin
Richards, Oxford, Portland Oregon: Hart Publishing, 2002, pp. 127.
17
On the “new materialism” see Anne-Fausting Sterling, Sexing the Body: Gender Politics and the Construction of
Sexuality, New York: Basic Books, 2006 and Myra Hird, Sex, Gender and Science, New York: Palgrave, 2004.
18
L. Braidotti, Nomadic Bodies, New York: Columbia University Press, 1994, pp.219
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male/female, nature/culture, corporeality/consciousness in order to create space for alternative
and transgressive conceptualizations of the body.19
There is, so to speak, a mutual attraction between constructionist views of the body and legal
conceptions of the body. The body is only meaningful for the law to the extent that it has
become a thoroughly legalized category. In Bodies of Law, Alan Hyde delineates various
discursive, constructed and performative constructions of the sexualized legal body, the “legal
breast,” the “legal vagina,” and the “legal penis.”20 The claims and constraints of ‘nature’ are
pushed aside; bodies are now the offspring of law. Biology offers the material stuff (“the array
of bodily organs of different shapes and sizes and colours”) but discourse gives us the normative
categories through which the body becomes meaningful and visible.21
Delaney’s exploration of law and nature concludes with a marriage of constructionism and law
arguing that the natural world or material world is “constituted by the legal.” Law, he argues,
“participates in the process of constituting the material: reorganizing it, transforming it,
penetrating it, preserving it.”22 Delaney is highlighting not just a claim about “the social
construction of reality,” but the “reality of social constructions.” 23 The legal, he argues, is
performed and instantiated on bodies “on all bodies, in all places, and at all times.”24 Every
instrument is a legal instrument, every body is a legal body, every location a legal location, every
event a legal event, every intimacy a legal intimacy. The law is lurking in and pulsing through
all “things.” Delaney legal materialism spotlights “the imperialism of the law vis-a-vis the social
totality”: “all of the material world, all of the material artifacts of the cultural order of modernity,
are the instruments through which “the legal” is realized in the world.” The power of law to
thoroughly legalize the material dimensions of human existence is a pivotal instrument for “the
destabilization of the taken-for-grantedness that hinders efforts to reimagine and reconstitute the
world.”25
Delaney’s intoxicating, almost hallucinogenic, vision of the penetration of law into nature, may
seem extreme. It appears to proclaim the final victory of nomos over physis. 26 But with the
Therese Murphy, “Bursting Binary Bubbles: Law, Literature and the Sexed Body, in John Morison and Christine
Bell, eds. Tall Stories: Reading Law and Literature. Aldershot, Dartmouth Publishing, 1996.
20
Alan Hyde, Bodies of Law, Princeton: Princeton University Press, 1997.
21
Alan Hyde, Bodies of Law, pp.258.
22
Delaney, Law and Nature, pp.404.
23
Stephen Pfohl, “The Reality of Social Constructions,” in Handbook of Constructionist Research edited by James
A. Holstein and Jaber F. Gubrium, New York, London: the Guilford Press, 2008, pp.645-668.
24 Delaney, Law and Nature, pp. 405; also see John Law and Annemarie Mol, “Notes on Materiality and Sociality,”
Sociological Review 43 (1995) 274-294.
25
Delaney, Law and Nature, pp.406.
26
Pheng Cheah and Elizabeth Grosz acknowledge the ways in which Western dualism highlights the normative and
coercive power of the law or nomos over nature or physis can be a form of violence against “embodied differences.”
But they reign in their critique noting that the recognition of embodied difference is “as dangerous as it is ethically
imperative” because “a recourse to a notion of real differences in nature between the sexes can lead to legally
sanctioned discriminatory treatment because ‘discrimination.. is only illegal or unconstitutional when the classes
being compared are similarly situated’.” Pheng Cheah and Elizabeth Grosz, “The Body of the Law: Notes Toward a
Theory of Corporeal Justice,” in Thinking Through the Body of the Law, edited by Pheng Cheah, David Fraser, and
Judith Grbich, Washington Square, New York: New York University Press, 1996, pp.5.
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deconstruction of physis, it is difficult to contain claims to “ultimate authority” by nomos.27
Chief Justice of Canada’s Supreme Court, Beverley McLachlin, defines the sweep of law’s
authority in a slightly different way to Delaney, but she seems to reach similar, somewhat
Hobbesian, conclusions for this new leviathan. The law, she writes, “exercises an authoritative
claim upon all aspects of selfhood and experience in a liberal democratic society.... [It] makes
total claims upon the self and leaves little of human experience untouched.”28
1.2 Nature Endorsing Perspectives
Time to get back to nature? Nature-dismissing perspectives may be prevalent today, but Western
thought also has fairly significant “nature endorsing” traditions.29 Ancient Greek, Roman
Stoicism, and Medieval thought were shaped by views of nature as a cosmic order or a “vast
chain of being” that encompasses and situates human existence.30 In this view, nature is saturated
with intelligibility, and all beings within nature exist in a continuum sharing both physical and
psychical lines of kinship.31 Revised versions of this perspective can be found in postEnlightenment Romantic thought as well as contemporary deep ecologies that portray nature as
an encompassing ecosphere.
These “nature endorsing” views tend to advance an ethics that highlights a precautionary
principle. Alexander Pope’s poetic version of this principle--“From Nature’s chain whatever
link you strike, Tenth or ten thousandth, breaks the chain alike”—captures this inherent
cautionary concern for disruptive interventions into the complex interconnections of the natural
order.32 However, in contrast to the static and closed conceptions of nature in classicist world
views, modern conceptions of nature attempt to provide an intelligible account of the historical,
processual, dynamic, developmental, contingent, and evolutionary dynamics of nature.33 The
chain of being turns out to be a spiralling double-helix chain of becoming that is constantly
interacting and genealogically evolving with the world around.34 In a sense, this heightens precautionary concerns since there is no reassurance of any cyclical return to right order. The
27
For a discussions of the dialectic of nomos and physis in Western thought, see Louis Dupré, Passage to
Modernity: An Essay in the Hermeneutics of Nature and Culture, New Haven: Yale University Press, 1993. Its
impact on the evolution of legal theory is explored by Donald Kelley, The Human Measure: Social Thought in the
Western Legal Tradition. Cambridge Ma.: 1990.
28
Chief Justice Beverley McLachlin, “Freedom of Religion and the Rule of Law” in Recognizing Religion in a
Secular Society, Montreal and Kingston: McGill Queens University Press, 2004, pp. 14, 16.
29
The term “nature endorsing” is used by Charles Taylor to describe important trajectories of modern thought,
Sources of the Self, Cambridge, Mass.: Harvard University Press, 1989. Also see Noel Castree, “Socializing Nature:
Theory, Practice, and Politics,” in Noel Castree and Bruce Braun, Social Nature: Theory, Practice, and Politics,
Malden, Ma.: 2001, pp.6-8/
30
Kate Soper, What is Nature? Culture, Politics and the Non-Human. Oxford and Cambridge Ma.: Blackwell,
1995, pp.21-25.
31
R.G. Collingwood, The Idea of Nature, Oxford: Clarendon, 1945, pp.3-4/
32
Kate Soper, What is Nature? Culture, Politics and the Non-Human, pp.22.
33
On the significance of the modern shift from classicist to historicist world views see Bernard Lonergan’s
influential essay, "Transition from a Classicist World View to Historical Mindedness" in William Ryan and Bernard
Tyrrell, eds. A Second Collection, (Philadelphia: Westminster Press, 1975), pp.1-9
34
Margaret Somerville, “Old Nature, New Science: Respecting Nature, the Natural and Life” in Margaret
Somerville, The Ethical Imagination, Toronto: Anansi Press, 2006, pp.95-156; for Somerville on the double-helix
metaphor see pp.77-78.
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unique ecological and evolutionary assets of future generations will be decisively shaped by
current choices.
Contemporary social theorists have become critical of the dangers of an uncritical turn to
thoroughgoing deconstructionist approaches to the natural. In What is Nature? Kate Soper
argues against strong versions of social constructionism that consistently contextualize “nature”
in ways that lead to a “denial of nature.”35 Some scholars in the social sciences are beginning to
react to the dominance of the more extreme forms of social constructionism. They argue that we
have witnessed a trade-off of biological reductionism for a form of “discourse determinism.”36
Others worry that strong constructionist theories of nature will lead to a form of relativism that
treats the discourse on nature as the mere play of politics and power. While social
constructionist perspectives feed left-of-centre libertarian agendas in the domain of sexuality and
family, they also fuel right-of-centre libertarian agendas in the domain of ecology. Deep
ecologist, Gary Snyder notes that constructionist arguments abound in right-wing parodies of
ecological issues such as global warming, wilderness preservation, or endangered species
protection. Ecological concerns are regularly debunked as political constructs designed to push
particular liberal agendas.37
Justice Scalia’s dissenting opinion in Babbitt v. Sweet Home Chapter of Communities for a
Greater Oregon (1995) offers evidence for Snyder’s concerns. Scalia argues that regulations
which constrain human interventions into nature based on appeals to notions of “endangerment”
represent little more than the play of discourse to promote particular political interests. He
concludes that the legal construct of “endangerment” represents an “unreasonable and unlawful
limiting of human freedom to transform the material world.” 38 Scalia’s argument is clothed in
irony as he playfully dismisses ecological appeals to “nature” as cartoonish constructions that
barely mask political interests. He shrugs off any serious consideration of the ecological
arguments about changing ecosystems, habitats, or the dynamics of reproduction that anchor
these concerns.39 References to the specificities of natural processes are treated special-interest
pleading devoid of real legal significance. In Scalia’s world, the dominance of legal categories
renders indivisible “the materialities of ecosystems and bodies.”40
Similar concerns are being raised about deep constructionist approaches to the human body and
sexuality. Bryan Turner’s impressive body sociological work on nature and the “body” employs
constructionist methods, however, he has two serious reservations about social constructionism
as an ideological framework. First, Turner argues that “most constructionist accounts of the
body neglect or deny our experiences of embodiment.” This, he argues, has “the consequence of
35
Kate Soper, What is Nature? Culture, Politics and the Non-Human, Oxford: Blackwell, 1995, pp. 250. But Soper
immediately adds that many of our emancipatory gains are owed to our refusal to conform to nature. (pp. 251).
36
Tim Newton, Nature and Sociology, London: Routledge, 2007, p. 22.
37
Gary Snyder, “Is Nature Real?” Whole Earth Magazine, Winter 1998,
www.wholeearthmag.com/ArticleBin/188.htm.
38
Comment on Scalia’s dissent by Delaney in Law and Nature, Cambridge: Cambridge University Press, 2003,
pp.211.
39
David Delaney, Law and Nature, Cambridge: Cambridge University Press, 2003, pp.211-12.
40
For Scalia, Delaney notes, “The physicality of the world played no part in the stabilization of legal meaning.”
Delaney, Law and Nature, Cambridge: Cambridge University Press, 2003, pp.212
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denying the very humanity of the agent. As the human body disappears behind the social and
cultural constructions that produce it, the vulnerability of the human agent is also obscured.”41
He argues the social construction must not obscure the importance of the lived experience of
embodiment. Second, he argues that the performativity” of the body is not free-floating, but
deeply anchored in the biology of human life. Aging is not merely a discourse constructed and
enforced by disciplines like gerontology.42 Disability is not a performance, it anchored in “real
performative impediments associated with disability status.”43 Deep forms of social
constructionism seem to miss the obvious “thingness” or quiddity (the “whatness”) of the human
condition.”44
Kate Soper also raises some cautionary concerns for the “‘nature-sceptical’ critiques of
progressive gender politics.” Constructionist discourses, she notes, now seem to dominate social
and legal theories of sexuality. In their view, there is no domain of the “natural” distinct from
the cultural discourses that construct and give meaning to ‘nature.’ Soper begins by warning her
colleagues to temper the ideological edge of their assault and, in particular, to carefully avoid the
temptation “to pit their ‘nature’ deconstructions against the ecological cause.”45
But Soper’s concerns go further. She notes that constructionist theories of sexuality have
contributed to a fairly uncritical ethos of technological intervention into biology (abortion,
contraception, reproductive technologies, sex change surgery, etc.) rather than the kind of “the
ecological injunction to respect the rhythms and modalities of ‘nature’” characteristic of most
environmental approaches.46 While Soper notes the “potentially reactionary dimensions of
ecological naturalism,” she also points to “the limitations, and indeed ultimate incoherence, of
the anti-naturalism professed in contemporary approaches to sexuality.”47
Human beings, like all other living creatures, are determined by biology in the sense that
they are embodied, mortal entities with specific genetic endowments, and possessed of a
particular sexual anatomy and physiology.48
Soper challenges the strong forms of constructionist “anti-naturalism” that deny the naturality
not only of gender, “but that of sex and the body as well.”49 Theorist like Wittig, Delphy and
Butler seek to utterly deconstruct “sex” as a category constructed to reinforce a heterosexual
regime.50 Soper argues that “insofar as a theory of sexuality and the body denies a realist
conception of nature, it is not only incompatible with ecological thinking, but incoherent in
itself.”51
41
Byran S. Turner, “The Constructed Body,” in Handbook of Constructionist Research edited by James A.
Holstein and Jaber F. Gubrium, New York, London: the Guilford Press, 2008, pp. 506.
42
Byran S. Turner, “The Constructed Body,” pp. 498.
43
Byran S. Turner, “The Constructed Body,” pp. 508.
44
Byran S. Turner, “The Constructed Body,” pp. 508.
45
Soper, What is Nature? pp. 120.
46
Soper, What is Nature? pp. 123.
47
Soper, What is Nature? pp. 124-25.
48
Soper, What is Nature? pp. 125-26.
49
Soper, What is Nature? pp. 127.
50
Soper, What is Nature? pp.128; see Diana Fuss’s discussion of Monique Wittig and Christine Delphy in
Essentially Speaking: Feminism, Nature and Difference, London: Routledge, 1988
51
Soper, What is Nature? pp.131.
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Family law seems caught in the very throes of the constructionist revolution. However, social
constructionism’s current dominance in the domain of discourse on sexuality and gender studies
may prove to be transitory. When progressive and critical social theorists like Soper and Turner,
scholars who have devoted a considerable amount of their attention to the question of “nature”
and the “body,” begin to voice serious reservations about the hegemony of constructionist
discourse it signals that we may be in the early stages of an intellectual shift. However, both
Turner and Soper are clear that the way forward will be intellectually and morally demanding.
Those sitting back waiting until it’s time to smugly flog the dead horses of constructionism
won’t be shaping the future conversation.
2.1 ‘Nature Endorsing’ Perspectives in Family Law
In the meantime, court cases and public debates continue to heat up. The place of the “natural”
in family law and social theory may be on the endangered list, but it is not extinct.52 It has been
a significant feature of the numerous legal decisions that have supported the historic common
law definition of marriage.
The argument from nature is viewed as the rational basis for law in Hernandez v. Robles (2006).
While other supporting lines of argument are acknowledged, the court advances two grounds that
“rationally support” the opposite-sex limitation on marriage. The first ground focuses on the
“natural tendency” of opposite-sex intercourse to lead to the birth of children. The natural
procreativity of opposite-sex bonding is the procreative fulcrum of human society. The
institution of marriage is anchored in this natural foundation, namely “the biological fact that
human procreation cannot be accomplished without the genetic contribution of both a male and a
female.” Given the ecology of human procreation the state has ground to offer inducements in
the form of marriage to opposite-sex couples to make a “solemn, long-term commitment to each
other.” Second, the “binary nature of marriage” is sex-inclusive. Marriage not only creates an
institutional frame for the natural ecology of opposite-sex procreativity both it also strives to
create an enduring community between the parents and their offspring.”53
Morrison v. Sadler (2005) argues that the state has “a legitimate interest in encouraging
opposite-sex couples to enter and remain in, as far as possible, the relatively stable institution of
marriage for the sake of children who are frequently the natural result of sexual relations
between a man and a woman.” 54 The natural sexual ecology of opposite-sex relationships sets
in motion a dynamic generativity that requires institutional framing and support. Morrison
argues that the non-procreative nature of same-sex coupling means that these relationships are
“not at “risk” of having random and unexpected children by virtue of their ordinary sexual
activities.” Therefore, the basis for laws extending marriage benefits to opposite-sex couples but
52
See the variety of voices in the recent 3 volume collection edited by A. Scott Loveless and Thomas B. Holman,
The Family in the New Millennium: World Voices Supporting the Natural ‘Clan’ Westport Conn. & London:
Praeger, 2007. For a full-throated proclamation of the “natural” in contemporary debates on the family see Allan C.
Carlson and Paul T. Mero, The Natural Family: A Manifesto, Dallas: Spence Publishing, 2007.
53
Hernandez v. Robles, 7 N.Y.3d 338 (N.Y. Court of Appeals 2006)
54
Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005)
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not same-sex couples is reasonably related to a clearly identifiable, inherent characteristic that
distinguishes the two classes: the ability or inability to procreate by “natural” means.”55
In Andersen v. King County, Justice Johnson cites “the unique and binary biological nature of
marriage and its exclusive link with procreation and responsible child rearing” as a central plank
of the rational basis argument for the common law definition of marriage.56 J. Johnson
acknowledges that while there are “numerous rational bases” supporting the reaffirmation of
marriage “as the union of one man and one woman,” sex-difference and the natural procreativity
of opposite-sex relations provide the most fundamental foundations for law:
The complementary nature of the sexes and the unique procreative capacity of one man
and one woman as a reproductive unit provide one obvious and non-arbitrary basis for
recognizing such marriage. The binary character of marriage exists first because there are
two sexes. A society mindful of the biologically unique nature of the marital relationship
and its special capacity for procreation has ample justification for safeguarding this
institution to promote procreation and a stable environment for raising children.57
In contrast to U.S. developments, recent Canadian jurisprudence on marriage gives an
appearance of comfortable consensus approaching near unanimity. However, the appearance is
somewhat deceptive. Court challenges to the common law definition marriage were initially
launched in three of the more liberal provincial jurisdictions in Canada (British Columbia,
Ontario and Quebec) where the prospects for success for high. Given the prominence of these
jurisdictions in the Canadian federation, favourable judgments would create a real momentum
for change. However, the first judgment delivered by the British Columbia Supreme Court in
Egan v. The Attorney General of Canada (2001) decided against the plaintiffs and reaffirmed the
common law definition of marriage.58 The appeal to nature was central element in the Attorney
General of Canada’s defence of the common law definition of marriage in all of the court
proceedings. An oft quoted passage in the legal debates on same-sex marriage was an opinion
from J. Forest in Egan v. Canada (SCC, 1995). Forest open highlighted the natural and
“biological” basis of opposite-sex marriage:
...marriage has from time immemorial been firmly grounded in our legal tradition, one
that is itself a reflection of long-standing philosophical and religious traditions. But its
ultimate raison d'etre transcends all of these and is firmly anchored in the biological and
social realities that heterosexual couples have the unique ability to procreate, that most
children are the product of these relationships, and that they are generally cared for and
nurtured by those who live in that relationship. In this sense, marriage is by nature
heterosexual. It would be possible to legally define marriage to include homosexual
55
Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) pp. 26-27. “Becoming a parent by using “artificial”
reproduction methods is frequently costly and time-consuming. Adopting children is much the same. Those persons
wanting to have children by assisted reproduction or adoption are, by necessity, heavily invested, financially and
emotionally, in those processes. Those processes also require a great deal of foresight and planning. “Natural”
procreation, on the other hand, may occur only between opposite-sex couples and with no foresight or planning. All
that is required is one instance of sexual intercourse with a man for a woman to become pregnant.... 16)
56
Andersen v. King County, 138 P.3d 963 (Wash. 2006)
57
Andersen v. King County (2006)
58
Egale v. Canada, BCSC 1365, (2001)
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couples, but this would not change the biological and social realities that underlie the
traditional marriage.59
The original Ontario Superior Court judgment in Halpern v. Canada (2002) was seen as the
landmark decision insofar as it recognized a fundamental problem of discrimination in the
current framework of Canadian marriage law. However, the judgment was also marked by a real
hesitancy about the option to redefine marriage and this hesitancy was reflected in its decision to
refer the issue back to the federal Parliament for deliberation. The first Halpern decision
recognized the seriousness of the proposed legal transformation of marriage:
… the consequences and potential reverberations flowing from such a transformation in
the concept of marriage, it seems to me, are extremely complex. They will touch the core
of many people’s belief and value systems, and their resolution is laden with social,
political, cultural, emotional and legal ramifications. They require a response to a myriad
of consequential issues relating to such things as inheritance and property rights, filiation,
alternative biogenetic and artificial birth technologies, adoption, and other marriagestatus driven matters. The Courts are not the best equipped to conduct such a balancing
exercise, in my opinion. This is not an incremental change in the law. It is a profound
change.60 (emphasis added)
The resolution of the Canadian marriage debate did not occur in a legal forum; it was settled by a
tight political vote in sharply divided federal parliament. Margaret Somerville, one of Canada’s
best-known public intellectuals and McGill’s Samuel Gale Chair in the Faculty of Law, made
significant contributions to both the legal and the wider public debates over marriage.
Somerville’s defence of the common law definition of marriage is grounded in a broader
approach to legal ethics that emphasizes the principle of “a presumption in favour of the natural.”
Her 2006 Massey lecture on “Respecting Nature, the Natural and Life,” develops this
cornerstone of her ethical theory.61 Somerville acknowledges constructionist concerns about the
elusive and shifting meanings of the natural. She also recognizes the difficulties of defining the
relationship between the “natural” and the “cultural.” However, she argues that postmodern
attempts to deconstruct and dismiss the significance of the “natural” pose serious threats to
human life and flourishing at a number of fundamental levels: ecological, technological,
biological, and anthropological. Deconstructions of nature also have a way of violating basic
the rights and interests of those especially vulnerable to aggressive human intervention: children,
the elderly, the infirm, the handicapped, non-human species, and ecosystems. Somerville argues
that advancing a “basic presumption in favour of the natural” as a core ethical principle requires
a consistent and coherent nature-respecting ethic to deal with the wide array of ecological,
technological, bio-ethical, and anthropological issues that involve the complex interface between
human choices and the diverse dimensions of nature.62
Over the years Somerville’s call for a consistent nature-respecting ethics has won her applause
and approval in many academic and public forums as she tackled a wide range of complex
59
Egan v. Canada, [1995] 2 S.C.R. 513, par.536.
Halpern v. Canada, (2002), par. 97-98.
61
Margaret Somerville, “Old Science, New Science: Respecting Nature, the Natural, and Life,” in The Ethical
Imagination, Toronto: Anansi, 2006, pp.95-156.
62
Margaret Somerville, The Ethical Imagination, pp.107-109.
60
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ethical issues including treatment of the serious disabled, the use of animals in research,
reproductive technologies, and transplant tourism. However, her decision to apply this ethic to
debates over the marriage question instantly made her the centre of a firestorm of public
controversy. Somerville recognizes that an emphasis on the importance of recognizing “innate
differences” between men and women, as well as “natural differences” between opposite-sex and
same-sex relationships, has often been employed to justify “horrible breaches of human ethics
and human rights” victimizing both women and homosexuals.63 However, a consistent naturerespect ethics, Somerville argues, cannot stubbornly dismiss all appeals to nature in dealing with
the domains of nature, biology, sexual difference, sexual bonding, procreation, and kin
connection. Marriage is a cultural construct that builds upon and works with the natural sociosexual ecology of opposite-sex bonding, procreativity, and child-bearing. The institution of
marriage strives to create and sustain a unique social context for a uniquely vulnerable human
category, namely children. In her view, ethics should strive to valorize and support the “natural”
connections between children and their biological parents. According to Somerville, “oppositesex marriage establishes as the norm and institutionalizes the inherently procreative relationship
between a man and a women, and in doing so establishes children’s rights with respect to the
links to their biological parents and families.”64
Somerville’s case against the redefinition of marriage has to be read as part of her contribution to
the international conversation on the rights of children as well as her distinctive approach to the
ethics of reproductive technologies. Somerville argues for an enriched conception of
fundamental rights of children and specifies three categories of birth rights: “[1] children’s rights
to know the identity of their biological parents; [2] children’s right to both a mother and a father,
preferably their own biological parents; [3] and children’s right to come into being with genetic
origins that have not been tampered with.”65 These rights are universal since conception, genetic
lineage, gestation, birth, and childhood are universal features of the human condition. Her
consistent nature-respect ethic, coupled with her specific appeal to recognize the natural birth
rights of children, makes Somerville particularly wary of proposals to fundamentally redesign an
institution that seems uniquely tailored to reinforce the natural bonds between children and their
parents.
It is one thing for children not to know their genetic identity as a result of unintended
circumstances. It is quite another matter to deliberately destroy children’s links to their
biological parents, and especially for society to be complicit in this destruction.
Needless to say, many have not welcomed Somerville’s determination to ethically challenge
attempts to redesign marriage in ways that legitimize the destruction of children’s birth rights
and their connections to “natural” kin. The curious feature of Somerville’s appeal to nature on
the marriage question is the way in which it is framed within the context of deep commitments to
environmentalism, human rights and liberal values. The mix seems baffling to many of her
intellectual adversaries and many of her allies. However, Somerville’s position on the marriage
question is fully consistent with her with her contributions to a wide range of ethical issues,
contributions that have been widely hailed for their progressive and ecologically sensitive ethical
humanism.
63
Margaret Somerville, The Ethical Imagination, pp.100.
Somerville, The Ethical Imagination, pp.102.
65
Margaret Somerville, The Ethical Imagination, pp.147.
64
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2.2. ‘Nature Dismissing’ Perspectives in Marriage Law
The legal arguments opposing the historic common law definition of marriage tend to simply
brush aside arguments that appeal to the “natural” social ecology of opposite-sex bonds or the
birth rights of children. The analysis that follows does not focus on the array of legal arguments
put forward by these decisions to make the case for redefining marriage, but solely on the
response of these decisions to arguments appealing to the ‘natural’ foundations of marriage.
The California decision, In re Marriage Cases (2008), notes that a significant number of U.S.
courts and legislatures did advance “rational basis” arguments in their defence of the oppositesex definition of marriage. However, in their presentation of the arguments, the California court
side-steps the direct appeals to the natural ecology of opposite-sex procreativity in order to refocus exclusively on one related aspect of their argument. According to California court, the
central argument of the “rational basis” defence hinges on a problematic feature of heterosexual
bonding, namely the heterosexual bent towards accidental or unintended pregnancies. In the
case same-sex couples, “parenthood necessarily is an intended consequence ...[that] requires
considerable planning.” However, “in the case of an opposite-sex couple a child often is the
unintended consequence of the couple's sexual intercourse.” This problematic feature of
heterosexual coupling requires state mandated incentives “to ensure that accidental procreation is
channelled into a stable family relationship.” In this version of the argument, “a similar
incentive is not required for same-sex couples” since they do not “not produce children
accidentally” (emphasis added).66 There are no concerns about irresponsible procreating for
same-sex couples since every child is, so to speak, a wanted child.
However, this re-framing of the rational basis argument by In re Marriage Cases ignores the key
conceptual term (“natural”) as well as the core arguments from nature employed in Morrison and
Hernandez to highlight the distinct significance of opposite-sex bonding and procreativity.67 For
the California Supreme Court, the only relevant characteristic of this category of procreation is
the high prevalence of “accidental” or “unintended” pregnancies. All references to arguments
for the “natural” character disappear from the court’s deliberations.68 The “nature endorsing”
66
In re Marriage Cases, 183 P.3d 384 (Ca. 2008), pp.42.
These two cases were specifically cited by In re Marriage Cases. See Morrison v. Sadler, 2003 WL 23119998
(Ind. Super. Ct. 2003)
68
The word “natural” only appears once in a footnote quoting from article 16 of the UDHR. The reference is used
to support the argument for a universal right to marry, but there is no comment on the UDHR’s use of the term
‘natural’ to define the family. In re Marriage Cases, 183 P.3d 384 (Ca. 2008) pp. 63, fn. 41. “It is noteworthy
that the California and federal Constitutions are not alone in recognizing that the right to marry is not properly
viewed as simply a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the
right constitutes a basic civil or human right of all people. Article 16 of the Universal Declaration of Human Rights,
adopted by the United Nations General Assembly in 1948, provides: “Men and women of full age, without any
limitation due to race, nationality, or religion, have the right to marry and to found a family. . . The family is the
natural and fundamental unit of society and is entitled to protection by society and the State.” Numerous other
international human rights treaties similarly recognize the right “to marry and to found a family” as a basic human
right.”
67
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approach of Morrison and Hernandez is countered by the “nature ignoring” stance of In re
Marriage Cases.
This pattern is repeated in other judgments. The challenge to arguments concerning the natural
dimensions of opposite-sex bonding proceeds less by critical counter-argument than by “nature
ignoring” lines of argument. Justice Kaye’s dissent in Hernandez only refers to the “natural”
when she quotes Justice Marshall’s partly dissenting judgement in City of Cleburne v. Cleburne
Living Ctr. (1985): "what once was a 'natural' and 'self-evident' ordering later comes to be seen
as an artificial and invidious constraint on human potential and freedom."69 The citation from
Marshall seems sufficient to dispense with the appeal to “nature.” A similar approach is taken in
Kerrigan v. Commission of Public Health (2008).70 New Jersey’s Lewis v. Harris simply ignores
arguments from nature.71
Justice Mary E. Fairhurst’s dissent in Anderson v. King County (2006) argues that the central
“issue at stake” in this debate is not the natural or foundational nature of marriage but “the
liberty to construct and define one's own family.” J. Fairhurst turns to Planned Parenthood v.
Casey (1992) for a canonical text to highlight her argument: “Our law affords constitutional
protection to personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. . . . These matters, involving the most
intimate and personal choices a person may make in a lifetime, choices central to personal
dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”72 In
re Marrriage Cases (2008) also emphasizes the fundamental right to conjugal intimacy as the
core of the marriage bond:
the right to marry is the right to enter into a relationship that is "the center of the personal
affections that ennoble and enrich human life" -- a relationship that is "at once the most
socially productive and individually fulfilling relationship that one can enjoy in the
course of a lifetime." The personal enrichment afforded by the right to marry may be
obtained by a couple whether or not they choose to have children, and the right to marry
never has been limited to those who plan or desire to have children.73
The core issues raised in arguments appealing to nature are systematically ignored in these
decisions. Does law need to consider the significance of sex-difference in social sexual ecology
of human mating? Does it need to consider the ‘natural’ procreativity of opposite-sex bonds?
Does the issue of children’s kin-connection and lineage merit legal consideration in defining the
legal contours of marriage? One can surmise that the refusal or failure to engage these concerns
might be grounded on the conviction that they lack any legitimacy or merely mask
discriminatory perspectives.
69
Justice Kaye dissenting in Hernandez v. Robles, 7 N.Y.3d 338 (N.Y. Court of Appeals 2006), pp.5.
Kerrigan v. Commissioner of Public Health (2008) See footnote 49: “The following comments of Justice
Thurgood Marshall also are instructive in this regard: ‘‘[H]istory makes clear that constitutional principles of
equality, like constitutional principles of liberty, property, and due process, evolve over time; what was once a
‘natural’ and ‘self-evident’ ordering later comes to be seen as an artificial and invidious constraint on human
potential and freedom.”
71
Lewis v. Harris, 908 A.2d 196 (N.J. 2006)
72
Andersen v. King County (2006)
73
In Re Marriage Cases (2008) pp.43.
70
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In the landmark case of the Canadian marriage debate, Halpern v. Canada (2003), the Ontario
Court of Appeal struck down the common law definition of marriage. The Attorney General of
Canada did put forward arguments highlighting the ways in which marriage taps into a natural
ecology of opposite-sex procreativity in human life. In response Justice Roy McMurtry admitted
while it was “true” that due to the limitations of “biological realities, only opposite-sex couples
could ‘naturally’ procreate,” nevertheless, it is largely irrelevant since same-sex couples can
achieve the same goal by a wide array of methods such as adoption, surrogacy and donor
insemination (par. 93). Justice McMurty then quickly dismisses the argument from nature
arguing that the opposite-sex requirement is both over-inclusive (many opposite-sex couples are
unable to have children or choose not to) and under-inclusive (excluding same-sex couples with
children). The key issue, Justice McMurty concludes, is not the needs and capacities of
opposite-sex couples: “The question to be asked is whether the law takes into account the actual
needs, capacities and circumstances of same-sex couples, not whether the law takes into account
the needs, capacities and circumstances of opposite-sex couples.” (par.91)
The Supreme of Canada glanced at the question of the “natural limits of marriage” in its response
to the Reference on Bill C38, The Civil Marriage Act. The justices note the core argument
against redefining marriage maintains that “the institution of marriage escapes legislative
redefinition” since “it is not a legal construct, but rather a supra-legal construct subject to legal
incidents.” However, the justices impatiently dismiss this position arguing that institutions like
marriage are evolving historical and legal constructs. Furthermore, they conclude that,
The natural limits argument can succeed only if its proponents can identify an objective
core of meaning which defines what is "natural" in relation to marriage. Absent this, the
argument is merely tautological. The only objective core which the interveners before us
agree is "natural" to marriage is that it is the voluntary union of two people to the
exclusion of all others.74
Two points are worth noting in their brief discussion of the opposing view. First, the justices
simply ignore rather than engage the arguments put forward to “indentify an objective core of
meaning” that defines the “natural” character of the marital bond. They seem to assume that
there is no argument that merits serious consideration and dismiss the stance as the mere
assertion of a customary view that happened to be dominant in a particular historical context.
Secondly, the only interveners who actually agreed with the justices’ formulation of the
“objective core” of marriage were the interveners arguing for a redefinition of marriage
according to that particular doctrine. The justices conclude that the proposal to re-define
marriage is reasonable since everyone can agree on one “objective core” to marriage, namely
that it is “a voluntary union of two persons to the exclusion of all others”--the exact formulation
used by the contested Civil Marriage Act redefining marriage. According to this line of
argument, the best way of escaping tautological thinking is simply to turn it on its head.
What is noteworthy in the Supreme Court of Canada’s response is the refusal or unwillingness of
the judges to engage the arguments defining marriage in terms of the ‘natural’ character of
marital and familial bonds. These lines arguments had been widely circulated in part due to
Somerville’s pivotal role as government expert witness in the various court cases as well as the
74
Reference re Same-Sex Marriage, 2004 SCC 79, para.27.
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robust public debate in the Canadian media and parliament. The arguments had received
considerable support from a wide array of legal, political and public advocates. Most of the
interveners in the Supreme Court reference who raised objections to the Civil Marriage Act
appealed to children’s birth-rights and the “presumption in favour of the natural” lines of
argument. The fact that they were not countered, or even merited recognition, suggests a deep
ideological divide over the appeal to nature in the legal debates over the question of marriage.
3.1. Nature, Rights and the Family: Post-War Perspectives
Despite the dismissive attitudes in many legal and academic circles towards arguments that
appeal to nature, nevertheless discourse on the connection between nature, marriage and family
is a longstanding feature of early modern and modern political thought. These appeals to the
natural contours of marriage and family are deep features of the evolving liberal tradition as it
struggled to define the relation of the state to this domain of human life.
In recent history, this connection was strongly re-affirmed in the most widely hailed human
rights document of the modern era, the Universal Declaration of Human Rights (UDHR). The
initial drafting stages for the UDHR leaned heavily on the expertise of John Humphrey, a
Canadian legal scholar who served as the secretary for the committee.75 Eleanor Roosevelt, the
chair of the committee, commissioned Humphrey to get the process started by putting together a
preliminary draft of the declaration.76 Humphrey’s original draft contained no mention of any
rights related to marriage or family.77 However, the third version of Humphrey’s draft contained
the following formulation: “Everyone has the right to contract a marriage in accordance with the
laws of the state.”78 A slightly edited version of this formulation appeared in the first draft that
was circulated to commission members.79
Humphrey’s proposal has three distinct elements: (1) marriage is a universal (“everyone”) right;
(2) marriage is defined as a “contract”; (3) the right to marry is defined and qualified by state
law. This conception of marriage rights seems to cohere with current approaches which view
marriage as a construct of state law. The Goodridge decision to re-define marriage is grounded,
75
On the drafting process see: Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting
and Intent Philadelphia: University of Pennsylvania Press, and Mary Ann Glendon A World Made New: Eleanor
Roosevelt and the Universal Declaration of Human Rights. New York: Random House, 2001,
76
For forty years authorship was attributed to René Cassin, French jurist and member of the drafting commission.
Cassin did little to correct this misleading view. The historical record was corrected by John Hobbins’ landmark
essay, “René Cassin and the Daughter of Time: The First Draft of the Universal Declaration of Human Rights, in
Fontanus 2 (1989)
77
The Humphrey draft included in the appendix to Glendon’s is a later version that was circulated to the committee.
The text of Humphrey’s original handwritten draft can be found in Hobbins’ essay on Humphrey’s authorship.
“René Cassin and the Daughter of Time: The First Draft of the Universal Declaration of Human Rights, in Fontanus
2 (1989). For a fuller discussion of the drafting process for the UDHR article on marriage and family see Daniel
Cere, “Human Rights and the Family,” Academic Questions 2009
78
The text of the third draft. The final draft that was circulated to the members of the committee can be found in
Glendon, A World Made New
79
Cassin’s edit of Humphrey’s draft eliminated the reference “of the state” perceiving it to be largely redundant.
“The Cassin Draft, Glendon, A World Made New, p.277.
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in part, on the principle that marriage is “an institution created by the state.”80 Other decisions
favouring a redefinition of marriage have avoided such blunt statements, but the principle seems
to implicitly anchor their arguments.
This emphasis on the legal or political texture of marriage is a highly influential, though
controversial, conception of conjugal society. This strong version of the legal constitution of
marriage is reflected in the original draft of the UDHR and continues to have life in some recent
human rights instruments. The European Union’s Charter of Fundamental Rights (2000)
adopted a variation of Humphrey’s formulation when it affirms that “the right to marry and the
right to found a family shall be guaranteed in accordance with the national laws governing the
exercise of these rights.”81
The UDHR took a different direction. A significant amount of Humphrey’s preliminary draft on
human rights did survive the heated article-by-article debate that took place over the 18 months
of informal meetings and formal commission sessions. However, his marriage article did not.
The reasons for its defeat are instructive. In the Second Session of the Commission (Dec. 1947)
Charles Malik of Lebanon proposed new wording that eliminated any reference to the role of
state law and defined the family as “a natural and fundamental group unit of society.” Malik
argued that rights language on marriage and the family should not be framed so as to imply that
conjugal society is a creature of state law subject to “the caprice of men.” He argued that the
“family circle” was the foundational social crucible in which “the fundamental human freedoms
and rights were originally nurtured.”82 In his view, a full-throated affirmation of the “natural and
fundament” character of the family was critical to establishing its autonomy in relationship to the
state. Malik wanted to ensure that the strong version of legal constitution of marriage was firmly
repudiated by the UDHR.
Given the chronology of the drafting process, it seems clear that Malik’s wording was based on a
proposal that had been submitted by the International Federation of Christian Trade Unions. On
December 3, 1947 Petrus Serrarens submitted a memorandum suggesting the following
formulation:
The family is the natural, primary and fundamental unit of society; it is older than society
itself and has unalienable rights antecedent and superior to positive law. The family
therefore must be protected by society and have its free development and its security of
life ensured.”
Serrarens insistence on the need to build a wall of protection around the family tapped into
widely shared anxieties about the extensive violations of family rights by modern totalitarian
states. Malik revised the proposal and submitted it for discussion the following week.
The Soviet Union did raise objections to Malik’s version of the IFCTU proposal, arguing that
there was no universal or natural form of the family. However, the substantive concerns of the
80
Goodridge v. Dept of Public Health, Massachusetts Supreme Court, Nov.18, 2003.
Charter of Fundamental Rights of the European Union, art.9.
http://www.europarl.europa.eu/charter/pdf/text_en.pdf
82
Quoted from Morsink, The Universal Declaration of Human Rights, pp.255.
81
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proposal eventually worked their way into the Universal Declaration.83 By the end of the
prolonged debates on the declaration, the commissioners settled on the following formulation of
the right “to marry and found a family”:
(1) Men and women of full age, without any limitation due to race, nationality or religion,
have the right to marry and to found a family. They are entitled to equal rights as to
marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending
spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to
protection by society and the State.
In the course of the committee debates, all references to “nature” were weeded out of the UDHR
document, except for one. The most dramatic casualty was the deletion of the reference to
“nature” in article 1 which affirmed that all persons are “endowed by nature with reason and
conscience” (emphasis added).84 By Dec.10th 1948, the date of ratification, the only reference to
nature left standing in the Universal Declaration was the affirmation of the “natural and
fundamental” character of the family.
The final formulation represented a fundamental philosophical shift away from the concept of
marriage and human rights advanced in the original Humphrey draft. First, art.16 defines the
right to marry as a “compound right”--“the right to marry and to found a family”—underscoring
the connection between marriage and its procreative potential.85 Second, the contractual
language of marriage is dropped leaving it open to the diverse cultural and religious accounts of
the core symbolic significance of the institution (e.g. contract, covenant, sacrament, etc.). Third,
the portrayal of marriage as a function of state law is repudiated. The conjugal family is a prelegal institution, a “natural and fundamental” form of social life. Fourth, the validity of
marriage is grounded in the “free consent” of the couple, not in ratification by state law. Fifth,
the article replaces “everyone” with “men and women.” It situates the article in the context of
the sex duality of human life while insisting on the basic equality of the sexes in the conjugal
bond.86 Finally, the state and society are obligated to protect and promote this natural institution.
This UDHR rights discourse on marriage and the family continued to strongly shape the evolving
international human rights conversation.87 Jane Adolphe notes that UDHR language in art. 16
has been affirmed and expanded in a number of major United Nations rights documents
including the International Covenant on Economic Social and Cultural Rights (1966) and the
International Covenant on Civil and Political Rights (1966). The International Covenant on
83
Discussions of the debates can be found in Morsink, The Universal Declaration of Human Rights, pp.254-258 and
Don Browning, “The Meaning of the Family in the Universal Declaration of Human Rights,” in The Family in the
New Millennium, vol. 1, edited by A.Scott Loveless and Thomas B. Holman, Westport Conn. & London: Praeger,
2007, pp.38-53.
84
See Morsink’s discussion in “A Bargain about God and Nature” The Universal Declaration of Human Rights,
pp.284-290.
85
On “compound right” see Margaret Somerville, “Children’s Human Rights and Unlinking Child-Parent Biological
Bonds,” Journal of Family Studies, 13/2 ( 2007) 179.
86
The reference to “men and women” only appears twice in the UDHR: art.16 and the passage in the preamble
affirming “the dignity and worth of the human person and in the equal rights of men and women.”
87
See Jane Adolphe, “Securing a Future for Children: The International Custom of Protecting the Natural Family,”
The Family in the New Millennium: World Voices Supporting the Natural ‘Clan.’ vol.1, edited by A. Scott
Loveless and Thomas B. Holman, Westport Conn. & London: Praeger, 2007, pp.191-224; esp. pp.206-211.
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Economic, Social and Cultural Rights strengths the language of entitlement by stating that the
family must be accorded “the widest possible protection and assistance” (art.10). The “natural”
family discourse also appears in major international rights declarations such as the American
Convention on Human Rights, the African Charter on Human and Peoples’ Rights, the African
Charter on the Rights and Welfare of the Child, as well as various Islamic declarations of human
rights and freedoms. In short, it commands a fairly significant level of international support.
The UDHR debates expose a classic tension in liberal discourse on marriage. Is marriage
essentially a legal construct designed to facilitate certain human aspirations such as sexuality,
intimacy, and the right to children? Or is marriage a “natural” institution entitled to protection
by the state, but not constituted by state law? While contemporary liberal theory seems to be
swinging strongly to the former view, the UDHR reaffirmed a tradition of liberal theory shaped
by naturalist conceptions of conjugal society. By advancing this conception of marriage, the
UDHR was able to secure a broad international consensus while simultaneously advancing a
fairly hawkish stance on gender equality in the face of serious reservations from cultural and
religious communities invested in more patriarchal conceptions of familial life. The drafters of
the UDHR were convinced that there was no conflict between a strong affirmation of the
“natural” basis of the family and a strong affirmation of gender equality. And they spelled this
out in their final formulation of Article 16.
3.2. Nature, Rights and Marriage: The Liberal Tradition
The “naturalizing” language of article 16 is likely to be something of an embarrassment for many
contemporary human rights advocates in the West. This embarrassment signals that there has
been a considerable shift away from traditions of liberal discourse that provided an intelligible
framework for this concept. Divergent views of the significance of appeals to the “natural”
dimensions of marriage and family do run deep in the liberal tradition. However, given the
strong de-naturalizing drift of contemporary liberal theory, there is a tendency to overlook the
foundational role of the discourse on the “natural” in the development of liberal discourse on the
family.
Charles Taylor argues one underrated element in the emergence of the modern self is the
emphasis on “the affirmation of ordinary life.”88 The emerging modern social imaginary began
to valorize the ordinary aspects of human life—conjugal life, family, work—as central to its
concept of the “good life.” This represented a significant departure from classicist conceptions
which devalued ordinary life as mundane life-sustaining activities that we share with other
animals --- something to be downloaded or delegated to the lower orders of social life in order to
free those capable of pursuing the higher goods. The emerging modern conception of nature
affirmed the common pursuits of ordinary life as goods in themselves. The shift involved an
88
Charles Taylor, Sources of the Self: The Making of Modern Identity, Cambridge: Cambridge University Press,
1989, pp.211.
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attack on the elitism of pursuits that only the leisured few could meaningfully participate in.89
The “nature endorsing” traditions of modernity, Taylor argues, trace their roots to this
affirmation of the good of “ordinary life.” 90
The affirmation of ordinary life worked its way into modern legal and political theory. The
foundations of early modern liberal theory can be traced to the evolving natural jurisprudence
traditions of 16th and 17th century Spanish and Dutch political thought.91 John Witte’s recent
study, The Reformation of Rights, highlights the work of Johannes Althusius in revising and
transmitting natural jurisprudence theory to 17th century political and constitutional discourse.92
Althusius’s distinctive contribution was his pluralistic and confederal conception of human
society. While contemporary communitarian theory tend collapse marriage and family into the
more generic category of civil society associations, Althusius draws a fairly sharp distinction
between these two spheres of social life. In contrast to other consociational (consociato) forms,
the family taps into the “natural symbiotic” basis of associational life; its social contours have
“the same boundaries as life itself.”93 Anchored in nature these “conjugal and kinship” forms of
life are the “seedbed of all private and public associational life.”94
Althusius clearly differentiates conjugal society from civil society. The endless variety of civil
society associations are diverse, ever-changing, voluntary, and “transitory.” However “necessary
and useful” they may appear to be within any historical context, they can always be
“discontinued” and “disbanded” either by mutual agreement or the vicissitudes of time.95
Althusius cites four distinct spheres of autonomy that co-exist with the state: personal, conjugal
societies, civil society associations, and religious communities. Each sphere has its own distinct
character. Each sphere becomes a distinct site for rights talk. Each sphere can constitute
potential site of resistance to the coercive power of the state. This approach implies that rights
documents need to address each of these spheres as separate lines of rights discourse resisting
temptations to collapse marriage, family or religion into more generic categories such as civil
society, personal autonomy or conscience.
In many ways, the fairly thick body of rights delineated by the UDHR appears to offer an
approach to human rights and freedoms that reflects this Althusian pluralist conception of the
diverse personal, familial, social, and religious foundations of human life. Furthermore, for the
drafters of the UDHR, as for Althusius, the distinct place of the family in the rights tradition is
89
Taylor 1989, pp.213-14.
Taylor, Sources of the Self, pp.211-233.
91
See Quentin Skinner’s survey of this evolving tradition in Foundations of Modern Political Thought 2 vols.
92
John Witte, “Natural Rights, Popular Sovereignty, and Covenant Politics: Johannes Althusius and the Dutch
Revolt and Republic,” in The Reformation of Rights: Law, Religion and Human Rights in Early Modern Calvinism.
Cambridge: Cambridge University Press, 2007, pp. 143-207. Also Thomas O. Hueglin, Early Modern Concepts for
a Late Modern World: Althusius on Community and Federalism, Waterloo Ont.: Laurier University Press, 1999.
93
Johannes Althusius, Politica: Politics Methodically Set Forth and Illustrated with Sacred and Profane Examples,
edited and translated by Frederick S. Carney, Indianapolis: Liberty Fund, 1995, pp. 28. See Thomas O. Hueglin,
Early Modern Concepts for a Late Modern World: Althusius on Community and Federalism. pp.76,116.
94
Althusius, Politica, pp.31
95
Althusius, Politica, pp.33.
90
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firmly anchored in conjugal society’s unique grounding in the “natural” ecology of human life.
It cannot be subsumed under the category of “civil society.”
The well-trod narrative of British liberalism follows a trajectory from Hobbes, through Locke to
Mill. Despite the authoritarian bent of his political philosophy, Thomas Hobbes is widely
recognized for the foundational role he played in the liberal tradition due to his contribution to
the development of the modern concept of “natural rights.” Like Althusius, Hobbes sees the
domain of the conjugal as central part of the natural order of human life. He ranks “conjugal
affection” as second only to “self-preservation” – ranking it before “property” as a foundational
interest of human nature, a significant concession for this hard-nosed materialist.96 Conjugal
affection, Hobbes argues, is not a function of humanly devised “laws of matrimony,” but is
anchored in “the Law of Nature.” Put simply, it is “the naturall inclination of the Sexes, one to
another, and to their children.”97 Hobbes concludes that the basic order of natural rights consists
in the triad of life, conjugal society, and property, rather than the more conventional account
liberal rights to life, liberty and property.
John Locke’s famous Two Treatises on Government begins with a lengthy response to Robert
Filmer’s rendering of the political nature of familial life. Filmer repudiates Aristotle’s
distinction of the polis and the household and argues that family is a thoroughly political form of
life.98 According to Filmer, “If we compare the natural duties of a father with those of a king,
we find them to be all one, without any difference at all but only in the latitude or extent of
them.”99 Locke’s Two Treatises on Government, takes direct aim at Filmer’s attempt to fuse the
political and the conjugal. Locke argues that “conjugal society” is a pre-political institution vital
to human life because of the vital role it plays in generating and nurturing children. The familial
and the political are fundamentally “different Relations” that operate according to different rules
and values.100 Conjugal society “contains nothing of the Magistrates Power in it, nor is
subjected to it.” 101 “The society betwixt parents and children, and the distinct rights and powers
belonging respectively to them,” are, according to Locke, “far different from a politic
society.”102 These two institutional realities are “perfectly distinct and separate; are built
upon…different Foundations, and given to …different Ends.”103 “Conjugal society,” Locke
96
Thomas Hobbes, Leviathan, edited by C. B. MacPherson, Hammondsworth: Penguin, 1981, pp.383. Hobbes
states that “those that are dearest to man are his own life; and in the next degree (in most men), those that concern
conjugal affection; and after them riches and means of living.”) See John Rawls’ discussion of Hobbes’s views in
“Human Nature and the State of Nature,” Lectures on the History of Political Philosophy. Cambridge, Mass.:
Harvard University Press, 2007, pp.45.
97
Hobbes, Leviathan, pp.253. Hobbes has a mixed record on the question of patriarchalism. He envisages a form
of matriarchy in the state of nature arguing that, in the absence of law or matrimonial contract, the natural dominion
over offspring devolves to the mother. (Leviathan, pp.254)
98
Gordon J. Schochet, Patriarchalism in Political Thought, Oxford: Basil Blackwell, 1975, p.32.
99
Sir Robert Filmer, Patriarchia and Other Writings. Edited by Johann Somerville, Cambridge: Cambridge
University Press, 1991, p. 12.
100
John Locke, Two Treatises of Government, edited by Peter Laslett. Cambridge: Cambridge University Press,
1988, II, sect.2, p.268.
101
John Locke, Two Treatises of Government, edited by Peter Laslett. Cambridge: Cambridge University Press,
1988, I, sect. 64, p.187
102
John Locke, Two Treatises of Government, edited by Peter Laslett. Cambridge: Cambridge University Press,
1988, II, sect. 84, p.322.
103
John Locke, Two Treatises of Government, edited by Peter Laslett. Cambridge: Cambridge University Press,
1988, II, sect. 71, p. 314.
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writes, “is made by a voluntary compact between man and woman; and tho’ it consist chiefly in
such a communion and right in one another’s bodies as is necessary to its chief end, procreation;
yet it draws with it mutual support and assistance, and a communion of interests too, as
necessary not only to unite their care and affection, but also necessary to their common
offspring, who have a right to be nourished, and maintained by them…”104 For Locke, the
foundations of conjugal society lie in the natural socio-sexual ecology of human life: sex
difference, the natural generativity of male/female bonds, and parental investment in their
children.
Locke does begin to press for a modestly egalitarian understanding of conjugal relations.105
Locke’s debate with Filmer’s Patriarchia in the first treatise is built around an argument for the
distinctly non-political and natural character of the conjugal bond. At a number of key points in
his argument Locke counters Filmer’s emphasis on conjugal authority and subjugation by
advancing a more egalitarian reading of biblical texts dealing with the nature of the conjugal
bond. Locke’s manoeuvres suggest that liberalism can envisage an affirmation of the “natural”
character of conjugal society together with an emphasis on the egalitarian nature of
companionate conjugal relations.
In the evolution of the British liberal tradition, Mary Wollstonecraft’s Vindication of the Rights
of Women marked a decisive turn towards a more unequivocal affirmation of gender equality.
Wollstonecraft launched a powerful critique of the patriarchalism embedded in Rousseau’s
romantic vision of the family and gender relations. Rousseau’s republican political vision
defended the critical place of conjugal society in human life, however his defence was based on a
heavily genderized conception of social roles that effectively confined women to the domestic
sphere as exotic flowers for romantic passions of his manly citizens. However, Wollstonecraft’s
demand that liberalism embrace conjugal equality was not based on a repudiation of the natural
and foundational importance of marriage and family for human society.106 According to
Wollstonecraft, the structures of male authority and tyranny were complex human constructions
that actually distorted and damaged the natural conjugal and parental affections in the home.
Cleansing the home of the oppressive clutter of patriarchal conventions and constructions would
restore conjugal relations to their pristine natural beauty. In this view, the egalitarian family is
not the politicized family, but the natural family freed from the oppressive political overlay of
human conventions.
De Tocqueville’s exploration of democracy in America develops this line of reflection by putting
sociological flesh on the theoretical bones of Wollstonecraft’s argument for the egalitarian and
natural contours of the family. Democracy in America provides a strong communitarian
defence of the family and civil society as platoons of freedom in liberal democracy. However,
104
John Locke, Two Treatises of Government, edited by Peter Laslett. Cambridge: Cambridge University Press,
1988, II, sect.78, p.319.
105
Here I am siding with Jeremy Waldron’s qualified defence of Locke against Carole Pateman’s charge that Locke
was a consistent and uncompromising patriarchalist. See Carole Pateman, The Sexual Contract, Stanford, Cal.:
Stanford University Press, 1988 and Jeremy Waldron, God, Locke and Equality: Christian Foundations in Locke’s
Political Thought. Cambridge: Cambridge University Press, 2002, pp.35-40.
106
See Eileen Hunt Botting’s discussion of the important areas of common ground in the debates between Rousseau,
Burke and Wollstonecraft in Family Feuds: Wollstonecraft, Burke and Rousseau on the Transformation of the
Family. Albany: State University of New York Press, 2006, esp. Ch. 5.
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Tocqueville’s account also celebrates the warmth and natural affectivity of family life in
America in contrast to the convoluted complexities and competitiveness of relationships in the
aristocratic familial cultures of Europe. The “naturalness” of familial bonds in America,
Tocqueville observes, is due to the egalitarian nature of those relationships. Freedom and
equality foster “familiarity and affection,” and “new relations [spring] up in the bosom of the
family.” “Democracy,” Tocqueville writes, “loosens social ties, but it draws the ties of nature
more tight; it brings kindred more closely together.”107 Tocqueville argues that the social
radiance of the “natural” family shines forth in the more egalitarian conjugal culture fostered by
the America democratic ethos.
Arguably John Stuart Mill represents a decisive shift in the evolving liberal discourse on the
nature of conjugal society. Mill was not impressed with DeTocqueville’s reflections on the
family and dismissed them as lacking ‘‘any considerable value.’108 Mill did continue and
sharpen arguments for the full equality of women. However, the liberal insistence on the
“natural and fundamental” role of the family in social life begins to fade from view. First, Mill
suggests that there may costs incurred for the real advancement of women’s equality, and those
costs may have to be born by the family in terms of more divorce, more family instability and a
decisive relativization of the interests of conjugal society. “The question”, Mill writes, “is not
what marriage ought to be, but a far wider question, what woman ought to be.”109 In this view,
equality claims must trump concerns about the inherent or ‘natural’ nature of marriage.
Actualizing individual choice and autonomy requires “the most unbounded freedom in uniting
and separating.”110 Social and political reforms advancing women’s equality will be required to
target the family and gradually resituate it so that it will not present an obstacle to women’s
needs and aspirations. Mill recognizes that the promotion of equality rights will inevitably erode
and destabilize traditional family forms.111 However, he is convinced that this price must be
paid.112
Second, Mill views the institution of marriage and family with deep suspicion. Conjugal society
will be adversely affected by the promotion of equality rights because its institutional purpose,
like that of slavery, is one of oppression and domination. In The Subjection of Women Mill
paints a profoundly dark portrait of oppressive nature of marriage and family. Marriage
institutionalizes the subjection of women. Marriage cuts deeper than slavery since it imposes a
form of forced prostitution.113 The woman in marriage is reduced to “being the personal bodyservant of a despot” who can demand sexual access at any time. (335) “The family,” Locke
107
Alexis De Tocqueville, Democracy in America, vol.2, New York: Schoken Books, 1961, pp. 233, 236.
John Stuart Mill, ‘‘M. de Tocqueville on Democracy in America,’’ Dissertations and Discussions: Political,
Philosophical and Historical (New York: Henry Holt and Company, 1874), 124.
109
J.S.Mill, “On Marriage” (1832-33?) in The Subjection of Women in Sexual Equality: Writings by John Stuart
Mill, Harriet Taylor Mill and Helen Taylor, edited by Ann Robson and John Robson, Toronto: University of
Toronto Press, 1994, pp.9.
110
J.S. Mill, “On Marriage” pp.5.
111
A similar form of sober rights realism can be found in Michael Ignatieff’s discussion of the family and human
rights in The Rights Revolution, Toronto: Anansi, ch.4.
112
A similar argue is made by Michael Ignatieff in his Massey lecture, “Rights, Intimacy, and the Family,” The
Rights Revolution, Toronto: Anansi, 2000, pp. 85-112. Thought Ignatieff strikes a more sobering note: “We need to
see our anguish and disarray about the family as a struggle to face up to the consequences of having got what we
wanted. We wanted freedom and we should stop apologizing for it. We must simply pay its price.” (pp. 112)
113
J.S. Mill, “On Marriage, pp. 9.
108
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argues, “is a school of despotism.” (346) It is a legalized form of “bondage” the directly controls
and constrains the lives of a huge sector of the population: “There remain no legal slaves, except
the mistress of every house.” (380)
Finally, Mill launches a sharp attack on appeals to “nature” or the “natural” in advancing
arguments about social and political order. In his essay On Nature, Mill rejected the Romantic
endorsement of nature as a normative ground for human life. Mill anticipates postmodern critics
of the concept of the “natural.” The appeals to nature are typically emotive and ideological:
“Nature, natural, and the group of words derived from them, or allied to them in
etymology, have...become entangled in so many foreign associations, mostly of a very
powerful and tenacious character, that they have come to excite, and to be the symbols of,
feelings which their original meaning will by no means justify; and which have made
them one of the most copious sources of false taste, false philosophy, false morality, and
even bad law.” (emphasis added)
According to Mill, the concept of “following nature” is empty and devoid of meaning. All
human action is transformative.
Let us then consider whether we can attach any meaning to the supposed practical maxim
of following Nature, in this second sense of the word, in which Nature stands for that
which takes place without human intervention. In Nature as thus understood, is the
spontaneous course of things when left to themselves, the rule to be followed in
endeavouring to adapt things to our use? But it is evident at once that the maxim, taken in
this sense, is not merely, as it is in the other sense, superfluous and unmeaning, but
palpably absurd and self-contradictory. For while human action cannot help conforming
to Nature in the one meaning of the term, the very aim and object of action is to alter and
improve Nature in the other meaning.
In short, Mill’s “comprehensive liberalism” decisively breaks ranks with the “political
liberalism” of theorists like Locke, Wollstonecraft and Tocqueville on the marriage question.
One of the most distinctive characteristics of this form of comprehensive liberalism is its
determination to press for a gradual but thoroughgoing transformation of the institution of the
family. The family for Mill is, most decisively not a “natural and fundamental” form of social
life “entitled to protection by state and society.” It is a flawed legal construct that requires
ongoing radical reform to meet evolving demands for equality and liberty.
More recently, Martha Nussbaum has thrown her intellectual power behind the “Millean liberal”
trajectory lamenting that “most of the liberal tradition did not follow Mill’s lead” on critical
issues concerning sexuality, marriage and the family.114 Nussbaum takes up the torch from
Susan Okin in her mission to nudge Rawlsian political liberalism into a more thoroughly liberal
stance on the family.115 In her discussion, The Family: “not ‘by nature’,” Nussbaum leans
heavily on Mill to argue against political approaches to the family, “both liberal and nonliberal,”
that attempt to posit a “natural” grounding for the family.116 Like Humphrey and Goodridge,
Nusshaum argue that the family is a “creation of state action” in a more “direct sense” than other
114
Martha C. Nussbaum, Sex and Social Justice, New York, Oxford: Oxford University Press, 1999, pp. 20-25, 65.
See Susan Moeller Okin, Justice, Gender and the Family,
116
Martha C. Nussbaum, Women and Development: The Capabilities Approach. Cambridge: Cambridge University
Press, 2000, pp.252-261.
115
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civil society institutions of society such as universities or religions.”117 “The state,” Nussbaum
argues, “constitutes the family structure through its laws, defining which groups of people can
count as families, defining the privileges and rights of family members, defining what marriage
and divorce are, what legitimacy and parental responsibility are, and so forth.”118 The state does
not simply “police” marriages, “it marries people”: [T]he state is present in the family from the
start... it is the state that says what this thing is and controls how one becomes a member of it.”119
Nussbaum notes that there are soft and strong versions of the legal character of associations. In
the soft version the law contextualizes institutions, in the strong version the law constitutes them.
Nussbaum is arguing for the strong version of the legal constitution of marriage:
All human associations are shaped by laws and institutions, which either favour or
disfavour them, and which structure them in various ways. But the family is shaped by
law in a yet deeper and more thoroughgoing way, in the sense that its very definition is
legal and political.120
The curious feature of Nussbaum’s nature-dismissing discourse on the family is that it is set
within the context of a complex and evolving intellectual project that offers rich resources for
nature-endorsing ethical approaches. Her philosophical ethics develops traditions of
Aristotelianism and neo-Stoicism noted for their non-dualist appreciation of the complex webs of
interaction between nature and culture, nomos and physis, body and consciousness.121 Frontiers
of Justice, for example, challenges contemporary liberalism to a new conversation on questions
of human vulnerability, embodiment, aging, childhood, and disability. However, when
Nussbaum turns to questions of the family, sexuality, sexual difference, or procreativity the arc
of her thought seems to be channelled along a thoroughly predictable Millean lines.
Conclusion
Those attracted to nature endorsing conceptions of marriage, like most ecologically-minded folk,
tend to be concerned about threats to the vulnerable dimensions of social sexual ecology of
human life. The domains of marriage and family do raise fundamental rights concerns, but they
are situated in the context of equally weighty concerns for nature, embodiment, and
vulnerability.122 The international commission drafting the UDHR was attentive to these
interconnections as it wove together language about ‘rights,’ the ‘natural,’ ‘protection,’
‘motherhood and childhood’ (arts.16 & 23).123 The duty to ‘protect’ this unique web of natural
bonds and rights loomed large in their final formulation of UDHR.
117
Martha C. Nussbaum, Women and Development: The Capabilities Approach. Cambridge: Cambridge University
Press, 2000, pp.260-62. “The family is a social and legal construct in a much more fundamental and thoroughgoing
way than these other organizations.” ibid. pp.275.
118
Nussbaum, Women and Human Development, pp.262-63.
119
Nussbaum, Women and Human Development, pp.263.
120
Nussbaum, Women and Human Development. pp. 262-63.
121
For a more recent statement of Nussbaum’s identification with the neo-Stoic tradition see, Martha Nussbaum,
Frontiers of Justice.
122
Turner’s work on rights and vulnerability tries to ground a discussion of human rights in the embodied vulnerable
nature of human existence, see Bryan S. Turner, Vulnerability and Human Rights, University Park, Penn.:
Pennsylvania University Press, 2006. Martha Nussbaum’s recent work of disability raises similar concerns,
however she applies them to the disabled and animals, not to children in the context of family. Frontiers of Justice:
Disability, Nationality and Species Membership. Belknap Press, 2007
123
“Motherhood and childhood are entitled to special care and assistance.” (Art. 25)
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Jonathan Rausch’s hopeful argument that the current rights revolution, anchored in a very
different vision, would somehow protect and revitalize marriage culture is proving, at least in
Canada, to be a somewhat shaky, if not empty, promise.124 After the heated debates around the
definition of marriage, the public conversation on marriage is now essentially dead. The legal
and political achievement of marriage equality seems to have been the major goal for most gays
and lesbians. Now that equality has been achieved, their interest in, and aspiration to, marriage
has been modest, at best. Marriage rates in Canada continue to stagnate or decline. In Quebec,
extra-marital births have risen to 62% and climbing. Michael Ignatieff’s more sober account of
real price to be paid for the evolving “rights revolution” in the family probably offers a more
accurate assessment of the road ahead. Ignatieff follows Mill’s tough-minded approach to the
tensions between marriage, family, and commitments to liberalism as comprehensive political
stance. With the penetration of liberal values deep into the texture of family life, ongoing
destabilization is to be expected and welcomed. According to Ignatieff, the rights revolution
driving current reforms in marriage and law has no real commitment to marriage and family as
integral or ‘natural’ forms of life apart from concerns for the fundamental equality claims of its
participants.125
Alternative conceptions of rights and liberalism that do situate marriage and the family as
“natural and fundamental” dimensions of human society are deeply shaped by equality concerns,
but not constituted by them. Although I find myself in sympathy with lines of liberal reflection
willing to continue, develop and enrich a conversation on the ‘natural’ dimensions of marriage
and family, I have mixed sympathies for proposals to use the coercive power of the state to
legally impose any particular doctrine of marriage. The repressive power of these doctrinal
impositions can cut both ways. In the heat of the debates over marriage the charge of repression
is typically levelled against the imposition of opposite-sex doctrines of marriage. However, in
the wake of redefinition, a new legal and doctrinal orthodoxy rapidly settles into place and new
heretics soon feel the repressive weight of its authority. Imposing a new doctrine of marriage
throws citizens committed to the historic understanding of marriage under a legal and cultural
cloud. The expansion of the category of homophobia to include heteronormative and
“heterosexist” speech works to close conversation in both academic and public settings.
Heternormative conceptions of marriage may be alluded to in sanctuaries under the veil of
religious freedom, but they are increasingly banned from polite conversation in the public
sphere.126
Margaret Somerville’s recent experience illustrates these trends. Somerville is an internationally
acclaimed ethicist, winner of the first UNESCO prize in science and ethics and recipient of the
“Order of Australia.” Her nature-endorsing approach to ethics won her acclaim in the late 80s
124
Jonathan Rausch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, New
York: Henry Holt and Company, 2004.
125
It’s a price Ignatieff is willing to pay – Michael Ignatieff, The Rights Revolution, pp.85-112.
126
In Canada social and self-censorship is often reinforced by the policing of public discourse by active use of
human rights tribunals, case law or employment penalties. Since the passage of the new marriage law, human rights
complaints filed against Bishop Fred Henry, Roman Catholic bishop of Calgary, and Fr. Alphonse de Valk, editor of
Catholic Insight, a national Canadian Catholic magazine, for their views on marriage and homosexuality. In
addition, some marriage commissioners who have conscientious objections to performing same-sex marriages have
been forced to resign.
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and early 90s as she fought for responsible public health care response to the AIDs crisis.
However, in Canada her argument for the natural contours of the family has made her the focus
for a remarkable stream of public abuse including continuous hate mail, threats, university
petitions condemning her work, and demands to have her tenured position terminated. Ryerson
University’s decision to grant her an honorary doctorate provoked significant controversy
requiring elaborate security measures to ensure her safety during the event. 127 Her recent
nomination to the “Order of Canada” was dismissed by the nominating committee on the
grounds that she was too controversial, yet during the same year the honor was awarded to Henry
Morgenthaler, Canada’s most controversial pro-abortion advocate. Perhaps the most curious
expression of this wave of public shaming was an article in the Ottawa Citizen bluntly titled, “Is
Margaret Somerville a Bad Person?” In short, theoretical debates aside, the appeal to nature in
family law is now provoking, in some circles, more visceral ethical disgust and abhorrence than
the nature-loving antics of zoophiles.
In the Bodies of Law, Allan Hyde argues that blows against ‘nature’ and ‘biology’ are blows
struck on behalf of the freedom and authority of human law-making. Treating the body as a
“legal artefact,” a malleable construction, an imaginary, rather than a foundational biological
reality, is, Hyde argues, a “powerful blow” for “legal creativity.”128 I suppose it is. Legal
orthodoxies, whether political or religious, have often proved to be powerful and creative blows
against the varied restrictions of ‘nature’—material nature, biotic nature, human nature, or even
so-called “natural” rights. The appeal to ‘nature’ can be restrictive, reactionary, and even
repressive. However, the appeal to ‘nature’ can also prove to be a cautionary stance against
human hubris and, at times, a liberating stance against oppressive human ‘constructions.’
Somerville offers some of her reflections on this event in “Incorrectly Labelled” MercatorNet, Feb. 24, 2009,
http://www.mercatornet.com/articles/view/incorrectly_labelled/.
128
Alan Hyde, Bodies of Law, pp.262.
127