Marriage and Positive Law

In my recent Christian Voice article 'Why Gay Marriage is a Public Threat Part 1', I pointed out that in the conjugal view of marriage there is an empirical reality we can point to when establishing whether a relationship is really a marriage, or at least a complete and consummated marriage. But there is no corresponding empirical reality that can constitute what it means to be in a marriage regulated by the new understanding of marriage that is being forced upon us. This is because a person might have a 'committed and loving relationship' with any number of other persons without it being marriage. Now precisely because of this, the only way that a committed and loving relationship can be upgraded into marriage is if the state steps in and declares that relationship to be a marriage, in much the same way as the state might declare something to be a corporation or some other legal entity. By contrast, conjugal marriages have and could exist without the state’s recognition because it is fundamentally a pre-political institution. Marriage is pre-political in the sense that it has intrinsic goods attached to it, not least of which is the assurance of patrimony and thus the integrity of inheritance. Such goods do not exist by the state’s fiat even though the state may recognize, regulate or protect them.

“By rearranging the very nature of what it means to be married, gay marriage raises the question of whether family and marriage can be considered pre-political institutions on the basis of natural and biological realities and intrinsic goods. This is because such natural and biological realities are being expunged from the essence of what we are now told marriage.

John Milbank echoes some of the concerns I raised
last month

“Since consummation is unnecessary for a same-sex union to be called a complete marriage (even putting aside the question of what would count as consummation within a same-sex context), then what determines whether or not a heterosexual marriage is complete? Either we can have two separate non-equal definitions of marriage, or we can realize the logical consequence of same-sex marriage and say that the only thing left to determine what actually makes something a complete marriage or a legitimate family is the law itself. But have we really considered the implications of saying that traditional marriages and families are entirely the construct of the law? John Milbank thinks we have not, in a recent article on the impossibility of gay marriage  which echoes many of the concerns I raised in my Christian Voice article last month.