by Brian McCall, J.D.

The headlines have been dominated in the past year over the topic of the relationship between law and marriage. Can and should state law prohibit or permit the “marriage” of two people of the same sex? Are such laws consistent with the Constitution of the nation? A few months ago I attended a presentation by the ACLU of Indiana at Notre Dame University, where I was visiting as a professor for the semester. The contingent argued that denying the “right to marry” to those of the same sex was contrary to our jurisprudence. The proposed amendment to the Indiana Constitution would “discriminate” against these people who want to get married and is inconsistent, they argued, with our evolving notion of marriage.

These debates, if one can use such a term to describe them, often end in incommensurable positions being staked out and lack any apparent resolution. The problem is fundamentally philosophical. Those discussing the particulars of civil law and its relation to marriage do not understand the nature of things and as a result cannot understand the nature of the legal issue.

The heart of the issue lies in the antithetical philosophies of Creation and evolution. The Catholic Church has always and everywhere taught that God created everything ex nihilo. Philosophically this means that God established the essences of all things that exist. To create something out of nothing requires the establishment of a form that did not previously exist to inform matter. Thus, by asserting that God created all things, that must mean that He established the form, or definitional essence, of all things. The essence of something is the definition of what something is. The definition distinguishes one thing from another. By stating that God created everything, the Church means that the definitional essences of things have been fixed, or legislated, by the mind of God. In the physical world, this means that a zebra is not a mouse, and a rock is not water. Yet even non-material things have essences. Charity, liberty, justice, and marriage although immaterial are real [Although such beings are not substantial beings (i.e., they cannot exist other than inhering in a substance), they are nonetheless real.] and have definitional essences. The modern world abhors definitions. They are too restricting to human license. The modernists thus invented the antithesis of Creation—evolution. This false philosophy holds that there are no fixed essences; everything is evolving. Rather than “being,” everything that exists is in a state of “becoming.” On the material level, a human being does not have a fixed essence. At a prior time, that which is now a human being was an ape or an amoeba in the process of becoming Man. Likewise, on the immaterial level, evolution holds that things like marriage are not constrained by fixed definitions deriving from the mind of God, a Being incapable of becoming as His Essence is pure being—“I AM who AM.”

For those indoctrinated into the evolutionary philosophy, marriage like all reality is simply an artifact at a point in time of evolutionary change. For them there is no contradiction in stating that marriage formerly was defined as a lifelong relationship between a man and woman but now it is a state of revocable commitment between any two people. And as emerged during the ACLU presentation in Indiana, there is nothing to prevent it from “evolving” to include non-human beings. As one student asked, what is to prevent your position from permitting someone to “marry” their dog? The ACLU attorney could only answer, “Nothing is; except that most people are not accepting of such a change, yet.” This possibility of marriage evolving to include animals is no more surprising than the alleged “fact” that Men used to be little tadpoles and are likely to be something very different in millions of more years. If Men can change so radically, why not something like marriage, they assert.

This evolutionary mindset, which sees everything as in a state of evolutionary becoming, requires a very different understanding of law than that of our ancestors, who understood that God created the essences of everything. This new jurisprudence sees law as always in a state of having to be updated to conform to the latest evolutionary developments. Law no longer rules and measures human behavior, but is ruled and measured by evolving reality. By contrast, if God has already defined the essences of all that is, then such a task is not entrusted to human lawmakers. All that human lawmakers can do is establish rules regarding the use of things by Men living in a community. Human law cannot define what constitutes a horse, but can require that we not let ours run free and trample our neighbor’s flower garden. The “what” of things is not entrusted to human law; the “how” of things is. God in His infinite wisdom has entrusted a great liberty to Man with respect to the created universe. He is charged with ordering the use of what God has created, but Man is not capable of creating, of defining the essences of things. The actual liberty of Man is evident from the first moments of Creation. One of the first acts of Adam is to name the creatures of the earth. God brings to Adam that which He has already made and permits Adam to assign a name, a linguistic reference which assists Man in ordering his use of these pre-existing things. In this first legislative act of the first Man, we can see the proper liberty of human law. Man cannot create; he can order. Laws can pronounce the name and place within human society of that which exists, but this act does not cause the thing’s existence nor change the essence of it.

Marriage, like bees and fire and dogs, was created by God when he took Adam’s rib to form a helpmate for him and commanded the two to go forth and multiply. Human law, whether made by ecclesiastical or human agents, can declare the name of this pre-existing essence and can order its use within society. Human laws can define, within the limits of justice, the effects upon property of marriage and its dissolution upon death. Yet no human agent can alter the definition or essence of marriage as a lifelong union of a man and a woman for the purpose of begetting and rearing children. An attempt to do so is merely a failed attempt at naming. It would be as if Adam incorrectly named both a dog and a cat to be a dog. The assigned name is for the purpose of identifying one essence as distinguished from another. Thus, the name dog if assigned both to dogs and cats is a false name. It equivocally refers to two different essences. Likewise, those who assert that human law can assign the name “marriage” to something which is not contained within the essential definition of the reality exceed the scope of human law.

Since modern positivist legal theory recognizes no law above or beyond human-made law, the debates over marriage law appear interminable and irresolvable. If marriage is merely what people, or their lawmakers, want it to be, there is no rational way for resolving these disputes. The only rational way to resolve the disputes is to appeal to an independent authoritative standard or definition. Yet modern legal positivism is a product of philosophical relativism. Definitions of things are merely the product of evolving human consensuses on those things. Relying on the philosophy of evolution, marriage can become anything into which we will it to evolve. A true understanding of Creation, as opposed to evolution, precludes this never-ending becoming. Marriage was created from the foundation of the world and cannot change. Our human acts and relationships can fail to measure up to the definition of the reality of marriage. What exists in such acts is something other than marriage, a perversion of marriage. Whenever human law explicitly declares or implicitly treats something other than marriage as if it were a marriage, the law is false. Such law does not adequately reflect reality. Further, it is an illegal law, for such a law is superseded by the higher law, the eternal law, which legislates the essence of marriage.

This conclusion should inform our efforts to resist these attempts to formulate illegal laws promoting and facilitating acts and relationships that are not marriage as if they were. Flowing from our obligation to work for the common good, we must resist these laws. We need not fear, however. Even if the enemies of God temporarily succeed in declaring the opposite of reality, they cannot change reality. They can no more make a non-marriage into a marriage than can they turn iron into gold. They might doctor up the appearance of the iron to make it appear to be gold, but it is not. Their attempts are merely the pointless rebellion of defiant children who stamp their feet wishing reality to be other than it is.

Brian M. McCall is Associate Dean for Academics and the Orpha and Maurice Merrill Professor in Law at the University of Oklahoma College of Law. In 2014 he is a Visiting Professor of Law at Notre Dame Law School. He has received degrees from Yale, the University of London, and the University of Pennsylvania. He is married and has six children, and serves as the coordinator of the SSPX chapel in Oklahoma City.