In this article, Canadian religion and philosophy professor, David Novak, argues that marriage pre-exists the state and cannot be “re-defined” by it to include same-sex couples.
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The question of same-sex marriage concerns every morally sensitive citizen. And so it is no wonder that it has been the subject of debate everywhere, among politicians and jurists, scholars and intellectuals. Professor Martha Nussbaum and I have locked swords over this issue on many occasions, such as in Sexual Orientation and Human Rights in American Religious Discourse. Her recent essay in the California Law Reviewentitled “A Right To Marry?” provides a welcome opportunity to return to this hotly debated question, and sharpen the points of difference between us.
It is clear that Nussbaum is dissatisfied with the present state of the institution of marriage in our secular society and its polity. I join her in that dissatisfaction, but we differ over what sort of change each of us wants.
She draws upon precedents that seem to be already changing the legal definition of marriage from a union of a man and woman into the union of two persons, irrespective of their sex. Conversely, I want to change or undo those very precedents that have led to a situation where what might be called “the traditional Western definition of marriage” can now be seriously and powerfully challenged.
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