The James Wilson Foundation on Natural Rights and the American Founding

“The Jujitsu of Same-Sex Marriage”—Prof. Hadley Arkes in First Things

Writing in First Things on “The Jujitsu of Same-Sex Marriage,” Prof. Hadley Arkes discusses how the principal argument in support of same-sex marriage is inherently self-defeating.

“Yet there is one path of argument that has remained overlooked even now, and it could offer even Justice Kennedy some reason to pause, and perhaps to hold back, before he drops the second shoe. The strongest argument made by the proponents of same-sex marriage just happens to be the source of the strongest leverage against their position. It establishes the properties or the terms of argument that the advocates of same-sex marriage simply cannot meet. I call this the jujitsu of same-sex marriage.”

“If marriage is radically detached from the telos, or purpose, of begetting, on what principle would the marital relation be confined to a coupling? What is to be said to the people who insist that their love is woven together into a larger ensemble of three or more?”

“It is curious that the people who have been telling us for years that there are no moral truths now insist to us that the laws confining marriage to one man and one woman must not only have a moral justification—that is, reasons to establish the rightness or ‘justice’ that ‘justifies’ the law. This moral justification must also be nothing less than ‘categorical.’ It must offer reasons that can answer to the question, ‘Is it necessarily true, true in all cases . . . that the marriage of a man and woman will produce children?'”

“But in the same way, the judgment brought forth by the Court should be able to hold in all cases that may fit the principle the Court is articulating. What holds true only most of the time, we’ve been instructed, is just not good enough. It is only just that the principle brought forth to establish new modes of marriage should meet the same standard. And if that standard is not met, if the explanations are not provided, we can bet with confidence that these cases, now rare, will cease to be rare, precisely as the notion of same-sex marriage has shifted from the unthinkable to the implausible to the realities springing up all around now and demanding acceptance.”

Read the whole piece here.

Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790