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42 Am. J. Juris. 135 (1997)
What Sex Can Be: Self-Alienation, Illusion, or One-Flesh Union

handle is hein.journals/ajj42 and id is 139 raw text is: Forum: Sexual Morality and the Possibility
of Same-Sex Marriage
This article concerns the morality of sexual acts. Why, the reader may
ask, should it appear in a journal ofjurisprudence? The law of marriage has
long embodied the understanding that marriage, as a moral reality, is an
inherently heterosexual institution. Nowhere is this more evident than in the
legal rules regarding the consummation of marriage by, and only by, sexual
acts which are reproductive in type. These rules, and the understanding of
marriage from which they flow, have been called into question by people
who propose the revision of marriage law on the ground that acts tradition-
ally condemned as sodomitical may, in some cases, be the moral equivalent
of reproductive-type acts. In particular, advocates of same-sex marriage
claim that sound moral analysis demonstrates that homosexual sex can unify
the whole lives of people as committed partners in just the way that the
reproductive-type acts of spouses actualize and enable them to experience
their true marital union. In this article we shall show that sexual acts are
morally right only within marriage. Understanding this will enable one to
see why nonmarital sexual acts, including homosexual acts, are intrinsically
incapable of actualizing true marital union, and why the law ought not to
treat such acts as equivalent in human significance to marital acts. Indeed,
we shall argue that nonmarital sexual acts are always and in principle
contrary to an intrinsic personal good, and as such harm the character of
those freely choosing to engage in them.
It is often assumed in treatments of sexual ethics that the central argument
from natural law theory against nonmarital sexual acts is simply that such
acts are unnatural, that is, contrary to the direction inscribed in the
reproductive or procreative power. This argument, often described as the
perverted faculty argument, is easily disposed of.1 It is then assumed that
* We gratefully acknowledge the support of the Earhart Foundation.
1. It is not clear, for example, that acting against the orientation of a biological power
is necessarily wrong; nor is it clear that sodomitical and other nonmarital acts are really
contraryto the orientation of a biological power. It is worth noting that Pope John Paul II
is among the recent natural law theorists who decline to use the perverted faculty argument.
Cf. Familiaris Consortio, Part ill. The Pope specifically rejects this sort of argument in
Veritatis Splendor, #48.

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