Why there is No Right to Same-Sex 'Marriage'
Two men or two women cannot claim any authentic right to marriage. They cannot claim any authentic right to marriage because they are obviously unable of assuming the natural office of marriage since they lack the natural capacity to do so. Since they lack the capacity, it follows that they cannot assume the obligations of the office, nor the duties of the office. And this means, necessarily, they have no right to the office.
To see this false claim of right, we have to view marriage as an "office," which means we need to look at this word, the meaning of which we seem to have lost, at least as it relates to marriage. Implicitly, however, marriage means the "office of marriage."
The word office comes from the Latin word officium. That word probably comes to us from the Latin word opificum, which is formed from opus, meaning "work," and facere, meaning "to do" or "to perform." Literally, it means "work-doing," and it means a status or identity involved with doing something, assumed by a person capable of assuming it, to which certain duties and obligations are attached, and which duties and obligations give rise to rights.
The notions of duty and office are so inextricably linked, that the word office and duty in Latin are the same: officium, though in English we separate them.
The word office is used in its traditional sense when we refer to the office of President. We distinguish between the person who "holds" the office and the office. The office gives the person a capacity which he did not have before. He must, therefore, be able to assume that capacity. Under Article II of the United States Constitution, a natural born citizen must be at least 35 years of age in order to assume the capacity of the office of President. An 18-year old citizen, or a person born outside the United States, does not have the capacity to be President because he cannot assume that office by law.
Now, when a person assumes the capacity of an office, that assumption of office brings with it obligations which give rise to duties. We are still on familiar ground here, since we still talk about the duties of office.
For example, when a person assumes the office of trustee, that person assumes a capacity separate from his individual capacity, and as a result assumes obligations separate and distinct from the obligations to himself individually. These obligations are owed to the beneficiary. These obligations to the beneficiary give rise to duties. The capacity and the obligations and the duties are not the trustee's to define; the person assumes them and must conform his behavior to them. The person who assumes the office and the obligations and duties of the office of trustee becomes a fiduciary, he acts in a fiduciary capacity, and has fiduciary duties wholly separate from those he has to himself.
Traditionally, the notion of right (ius) was tied to office and duty (officium). Traditionally, there is no right to something without an office which gave rise to a duty The words ius and officium were therefore frequently tied together: ius et officium or officium et ius. The Church still holds on to this traditional thinking.
Some examples of this are:
"The laity derive the duty and right (officium et ius) to the apostolate from their union with Christ the head." Vatican II, Decree on the Apostolate of the Laity, No. 3. The office of "laity" gives rise to duties, and therefore rights.
"Parents . . . have the primary and inalienable right and duty (officium et ius) to educate their children . . . . ." Vatican II, Declaration on Christian Education, No. 6. The the parental office gives rise to duties, and hence certain rights.
"Public authorities . . . have the right and duty (ius et officium) to impose on citizens the obligations necessary for national defense." Catholic Catechism, § 2310. The public office gives rise to duties, and therefore rights.
The reason for this is that the office imposes upon the holder of office a duty which obliges him in conscience, and the obligation of fulfilling that duty gives rise to a right to fulfill that duty, a right which must be respected by others and which public authority can enforce.
Moderns, however, have severed the relationship between duty and right, between office and right, so we hear all manner of things about "rights" that are entirely untied to any office or duty. This gives rise to all sorts of silly rights, fictitious rights, to the point that "rights talk" has become virtually unmanageable.
In his book After Virtue, Alasdair MacIntyre says that rights unmoored from duties, from office, don't exist. "There are no such rights, and belief in them is one with belief in witches and in unicorns."
But the problem of fictitious rights, of witches and unicorns, becomes particularly acute, even destructive of public life, when such fake "rights" are used to attack or destroy an office.
This is exactly what is happening in the same-sex "marriage" debate. The supposed "right" to marriage between two males or two females is being used to attack or destroy the office of marriage. As such, it is a false right, a totally fictitious right. It is, in fact, a wrong, a delict as we say in law, against the office of marriage.
Though we don't often think about it, marriage is an office. We need to recapture this reality or we can get lost in the debate of same-sex "marriage."
Because marriage is an office, one must be capable of assuming it. Additionally, because marriage is an office, there are obligations attached to marriage which give rise to duties, and these duties, and these duties alone, are what give rise to the rights of marriage.
Traditionally, at its core, marriage was considered a natural office, an officium naturae governed by natural law. In other words, it was an office that was not founded by man and man's law. True, its social or civil aspects could be regulated by civil laws, and therefore it was also considered a civil office. This particular accidental aspect of the office of marriage (which could not change its essential officium naturae) was called its officium civilitatis. Finally, the natural office of marriage was also governed by divine law regarding its status as a sacrament (sacramentum) under the law of Christ. But the essence of the matrimonial office was found in nature.
Marriage was therefore referred to as the office of marriage (officium matrimonii), or the matrimonial office (officium matrimoniale), or even the conjugal office (officium conjugii or officium conjugale).
For example, in his book On the Sacraments Hugh of Saint Victor (ca. 1096-1141) referred to the "office of marriage." "Now the office of marriage (officium conjugii) is this, that the mingling of flesh was established (carnis commistionem) . . . for the multiplication of progeny." (2.11.3)
In his treatise De beatae Mariae virginitate, Hugh of Saint Victor said even more succinctly: "The office of marriage (coniugis officium) lies in the generation of children." (PL 176-874C)
The decretist and bishop of Assisi, Rufinus (fl. 1150-ca.1191) defined the primary and natural office of marriage (prima ad officium), one so essential that it existed even before the Fall of mankind, as the propagation or procreation of children (propter sobolem propagandum). (Summa Decretorum, Causa XXVII).
The concept of marriage as an office has been largely absent from the same-sex "marriage" debate. And its absence is what has created confusion in the minds of those wanting to resist the onslaught of the false "right" of two persons of the same sex to marry.
If marriage is understood as a natural office, which is what it is, an office that is expressed by the sexual union of two bodies which is ordered to the "multiplication of progeny"or the "procreation of children," it is manifestly obvious that it is an office that can only be assumed by a man and a woman, and not by two men or two women.
While two men or two women can "mingle" in the flesh, they cannot, like a couple composed of one man and one woman can, do so "for the multiplication of progeny" or "procreation of children." This capacity of the couple is a central and integral part of the office of marriage, because their "mingling" in the flesh is, by the makeup of that natural office, ordered to that end.
For this reason, two men or two women cannot claim any authentic right to marriage. They cannot claim any authentic right to marriage because they are obviously unable of assuming the natural office of marriage since they lack the natural capacity to do so. Sexual differentiation is required for the capacity to assume the marital office. Since same-sex couples lack that capacity, it follows that they cannot assume the obligations of the office of marriage, nor the duties of the office of marriage. And this means, necessarily, they have no right to the office of marriage.
Q.E.D., as they used to say. And the unicorns and witches that are the "rights" of two people of the same sex to marry are seen for what they are: figments of a diseased imagination, a flight, if one may say so taking full advantage of the double entendre, into fairy land.
Andrew M. Greenwell is an attorney licensed to practice law in Texas, practicing in Corpus Christi, Texas. He is married with three children. He maintains a blog entirely devoted to the natural law called Lex Christianorum. You can contact Andrew at email@example.com.
Pope Francis Prayer Intentions for December 2013
General Intention: Victimized Children. That children who are victims of abandonment or violence may find the love and protection they need.
Missionary Intention: Prepare the Savior's Coming. That Christians, enlightened by the Word incarnate, may prepare humanity for the Savior's coming.
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