Is It, at Long Last, “Love”?

Author’s Note: I couldn’t help noticing that this piece marks the sixth anniversary of my very first piece for this web journal of ours, “Congregationalists All?” (June 10, 2008). Bob Royal launched us all with his opening column, The Catholic Thing six days earlier on June 2nd. None of us knew how long we could keep at it, and yet:  we’ve kept filing these pieces on-time, without looking back. It was a project brought forth by this band of brothers and sisters, who had once collaborated in Crisis magazine. And it could only have been sustained, as it has been, not by the money, but by the shared love of the project by the friends who have held together. Bob puts out a call every so often, as he must, for the contributions that keep this journal going. But at this anniversary, others of us should step in and invite our readers to join yet again, where they can, to convey their support for this project, sprung from the wit and conviction of Bob Royal, sustained by the writers he has drawn to his side – and by the community of readers that has formed about us. – Hadley Arkes

When the question of sex and the law arises in classes, the reflex of my students at Amherst had been to say that these matters of love and sexual attraction were inscrutable and subjective: Reason had little to do with them, and no more did it furnish a ground for casting moral judgments on the love that expressed itself in sexual engagements.

I would put to the students this problem:  A man tells us that he was attracted to his wife by “her ravishing blondness, her exquisite complexion – she went perfectly with the drapes in my apartment.” But those looks had altered with time, and now, he said, “I’m doing the whole apartment over in Art Deco, and she no longer really ‘goes’ with the place.”

Even with the sensibilities of the young these days, this account will still elicit laughs. I’ve remarked often on the connection between comedy and philosophy, with the comedians making their livings from the play of logic and the shadings in our language. The laugh is the telling sign that the point has been grasped.

But what it told still needed to be explained. There was a natural reaction to something strikingly, comically, out of scale: to treat the decision for marriage on the same plane as the choice of drapes was to reduce the marital relation to the plane of the trivial. And reduced in the same way would be the “love” that the marriage would mark. It was a love and marriage that would claim to last no longer than the  “sensations” that made the blondness and the complexion pleasing at the time. There would be no hint here that “age cannot wither her, nor custom stale her infinite variety.”

But to speak of a love that will endure even as looks atrophy is to speak of a non-material “good,” a good of the soul. It must imply that there is something about one’s spouse that is admirable in a lasting way, a way that rightly draws one’s enduring respect and attachment. But that is to say, there is an ineffaceable moral component to love that is understood in this way – love in its most serious meaning, the love that finds a coherent expression in the commitment of marriage.

What brings forth all of this now is that we are approaching the anniversary of that moment last June when the Supreme Court, in U.S. v. Windsor, took another critical step in unraveling the institution of marriage. We heard all about us at the time that “people should be allowed to marry the ones they love.” 

Even without inquiring too deeply into the meaning of “love,” that summoning line was instantly revealed as an empty slogan to anyone willing to subject it even to some minimal questioning.

         True marriage: Cupid and Psyche by Orazio Gentileschi, c. 1630

In the very nature of things, one could not deny the serious love that subsisted between parents and children, grandparents and grandchildren, and yet those could not be demeaned as “loves” because they were not expressed in sexual touching and confirmed in marriage. There was also the problem of the “polyamorous” and the polygamous. Their loves were not confined to a coupling, but woven together in an ensemble of three, four or more. Why would these people not be allowed to “marry the ones they loved”?

And yet, apart from all of that, it struck me recently that we were not even speaking the same language when the advocates of same-sex marriage made their heart-felt claims to the honoring of “love.”  Gareth Kirby, editor of the gay-lesbian newspaper Xtra West, wrote in September 2001 that: 

we know that a 30-year relationship is no better than a nine-week or nine-minute fling – it’s different, but not better. . . .We know that the instant intimacy involved in that perfect 20-minutes. . .in Stanley Park can be a profoundly beautiful thing.
I have thoughtful friends on the other side of this issue of same-sex marriage, and I’m certain that Jonathan Rauch and others would not accept this account of the “love” they would seek to respect in a same-sex marriage.

Those lines of Gareth Kirby are quoted by Robert Reilly in his recent book Making Gay Okay. The flip title is belied by the fact this is a probing, serious work, recalling Aristotle, Aquinas, and Rousseau along with empirical studies. Those studies have confirmed over the years the bizarre number of sexual partners sought by gay men.

In one extensive study in 2009,  35 percent of the men “reported that they had engaged in sexual intercourse with fewer than 100 men; 42 percent had engaged. . .with between 100 and 499 men, and 23 percent. . .with 500 or more partners.”

Even the most dedicated gay activists would hold back from placing the mantle of “love” on sexual encounters with several hundred men, some with men unknown, and lasting twenty minutes. But then what is the upshot? Even gay activists will cast an adverse judgment on patterns of activity that have been strikingly characteristic of gay men for years.

In that case, how could it be inadmissible for anyone else to raise the same kind of critical questions about the meaning of the homosexual life? And how could it be defensible for the law to impose punishments on those who would cast the same judgments cast by gay activists on the way that some people act out their “sexual orientations”? 

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.