Alliance University

SAME-SEX MARRIAGE

Submitted by:
Madhav Singh Dhakad – 2021BBLH07ASL045
Sahil Shyam Sharma – 2021BBLH07ASL053
Shalini Kumari – 2021BBLH07ASL052

Course Coordinator/Supervisor
Dr./Prof. Shamik Chakravarty

 School of Law
Alliance University, Bangalore
Date of Submission:- May 9, 2022
 DECLARATION

We declare that the seminar paper entitled “SAME-SEX MARRIAGE” has been prepared by
me and it is the original work carried out by me for the fulfillment of the requirements of
B.B.A.,L.L.B(Hons) degree programme of School of Law, Alliance University. We tried to
collect whole resources from different books and mostly from the internet and e resources
such as pdfs and ebooks. No part of this seminar paper has already formed the basis for any
examination/evaluation requirement of any degree.

Name Of The Student:- Madhav Singh Dhakad

SIGNATURE
Sahil Shyam Sharma

SIGNATURE
Shalini Kumari

SIGNATURE
                                       
                                    
Registration no.- 2021BBLH07ASL045
2021BBLH07ASL053
2021BBLH07ASL052

Batch: 2021-2026
School Of Law
Alliance University, Bangalore
Date: May 9, 2022
 ABSTRACT

The project talks about the sense of same-sex marriage. It draws the attention towards
whether same-sex couples should be considered as married or not. It puts more light on what
marriage is exactly rather than on the gender. The topic is more shifted towards the important
condition of marriage, that is, coitus. The authors draw on recent developments in moral and
political theory, economics, science, and public policy. The pages are written in plain,
jargon-free language so as to be accessible to students, with some terminology.
 TABLE OF CONTENT

1. CHAPTER I
2. CHAPTER II
3. CHAPTER III
4. CHAPTER IV
 CHAPTER I

INTRODUCTION

The same-sex has been a part of controversy in the minds of people. Some people are in
favour of it and some are against it. It's always arises a question whether same-sex marriage
is ethically or morally correct? In this project we will be discussing the point of views of two
writer on 'for' and 'against' the same-sex marriage. There are views on same-sex marriage is
that it isn't a bad policy but some says it's nonsense it's a definition of male-female.

It deals with The Definitional Objection followed by NNL Theory - The New Natural Law
Theory. Many people who are in favour of this, also question "Why must marriage be coital?''
and many such arguments

From the side of against of same-sex marriage, they sees it as 'Basic Human Good'.

Out of all these statements, it's clear to observe the controversy on this matter among the
people of this world. It becomes really hard to make a decision on any side but it can be
possible when you feel what is right from your point of view.
 CHAPTER II

Same-Sex Marriage and the Definitional Objection

In Today's world, many marriage traditionalist believe that 'same-sex marriage' is not only
bad but a nonsense policy on first sight, because marriage is by definition male-female.
According to the writer, they call it the Definitional Objection to same-sex marriage.
Proponents of the Definitional Objection claim that thinking of same-sex unions as
"marriage" involves a conceptual error.

2.1. The Definitional Objection

The writer first clarifies the Definitional Objection and distinguish it from other kinds of
arguments in the vicinity. Some people object same-sex marriage on basis of consequentialist
grounds, claiming as it's gives bad impact on the children and it would erode valuable social
norms such as fidelity.

The writer also said that they would consider the argument that treating same-sex unions as
marriage is wrong itself, apart from any further consequences it may have. The point is not
that it will have bad consequences but at some fundamental level, it's not even possible.

At first, it may be provoking to wonder whether the Definitional Objection merely involves a
verbal dispute. After all, committed long-term same sex relationships - unlike square circles -
are certainly possible, and in some jurisdictions they are officially recognised as legal
marriages. There are different sorts of realities at play here. There is what we might call the
legal reality, and if the law recognises something as X, then it legally is X.

By analogy, proponents of the Definitional Objection contend that different-sex and same-sex
unions are fundamentally different, and to call them by the same name is to obscure a real
natural distinction. Over time, the failure to distinguish these objects in language may lead to
a failure to recognise, and ultimately to appreciate, their differences in reality.

The answers are not yet found of that: What is "real marriage"? Why can't same-sex couples
achieve it? And why is it so important to maintain a special legal category for it, rather than
creating a more inclusive a civil marriage institution?

2.2. Bob and Jane and the Essence of Marriage

Bob, a man after meeting with an accident, he couldn't be ever capable of coitus:
penis-to-vagina sex. Moreover he couldn't be able to produce natural offspring. Bod and Jane
got married and they adopted two girls and a boy.

Question arises is Were Bob and Jane married? Obviously, there were legally married, but
were they really married? We have already noted that they could not produce offspring but
when we compare those facts against their love, sacrifice, and commitment; the family life
they built together; and to hold for worse until death do us apart. " The author said that they
don't need to have a fully worked-out theory of what marriage is in order to recognise that,
whatever it is, Bob and Jane achieved it.

2.3. The New Natural Law (NNL) Theory

The most traditional or sophisticated attempt to argue that marriage is necessarily

heterosexual from philosopher and such known as the New Natural Law. NNL theorists claim
that marriage is among the basic goods. They mean it as a comprehensive, "two in one flesh"
union of husband and wife. According to NNL, marriage is never properly chosen merely as
a means to some other thing, including children. The comprehensive union of marriage is
intrinsically valuable, and therefore should be chosen for it's own sake.

The problem with the explanation given by Girgis, George and Anderson taking example of
Einstein and Bohr is that there is an important moral difference between a goal which "does
not occur" even though people are "honest seeking" it, and a goal which cannot occur, and
which thus cannot be honestly sought by anyone aware of its impossibility. Unlike Einstein
and Bohr, the heterosexual couple who know they are sterile cannot sincerely intend
reproduction - and in that sense, they seem to be in the same position as the same-sex couple.

What they really mean is that the sex must be coital. Coital is only act in which male and
female human beings can join together to become"literally, not metaphorically one
organism." If marriage requires "reproductive type" acts and "reproductive type" means
"coital," then of course it follows that same-sex couples cannot marry. Unfortunately for
NNL, it also follows that Bob and Jane cannot marry.

2.4. Why must marriage be coital?

Why do we recognise Bob and Jane's union as a marriage? Salient factors include their
romantic love, public lifelong commitment, mutual care and concern, sexual intimacy, and
joint raising of a family. Yet once one concedes that marriage is possible without coitus, one
removes the NNL, bar to same-sex marriage.

2.5. Conclusion

Conclusion is that the conjugal view offers no advantage in explaining why marriage is
sexual. What about the idea that marriage is exclusive and permanent? The fact that coitus
shares some features with the union of organs in a single human body does not entail that it
shares all features, including exclusivity and permanence. The correct view is, necessarily,
more complex. Marriage is defined by a list of typical features, including a public lifelong
commitment, mutual care and concern, sexual intimacy, and joint raising of offspring. But
"typical" does not mean "strictly necessary," and for any of these features it is not difficult to
find examples fo genuine marriages which lack the feature. In other words, our ultimate
question is not "What is marriage?" but rather "How should we treat gay and lesbian
individuals and couples as members of a larger society?"
 CHAPTER III

Making Sense Of Marriage

The national debate over same-sex maariage seems like chaos, disconnected, but in its
essence it is a conflict between two visions of marriage. Marriage is essentially a
comprehensive union. Comprehensive union is valuable in itself but its link to children’s
welfare makes marriage a public good that the state should recognize and support.

It should be clear that, on the conjugal view, only sexually complementary couples can enjoy
the bodily union required for comprehensive, marital union. Marriage, in this view, is
possible between two men and two women.

3.1. Marriage as a Basic Human Good

Marriage, writer submit is a basic human good, and partakes of the objectivity and basic
determinacy common to all such goods. To agree that goods have some objective features,
one need not believe in god, just in some constants of human nature. If our species evolved
into one that reproduced asexually, then that species would be one for which nothing like
marriage existed. But this, far from undermining the conjugal view, reinforces it.

It is clear that most people on both sides of this debate believe marriage is not just close
friendship, but has a distinctive benefit and distinctive requirements. Certain relationships
simply cannot count as marriage, and that some other kinds simply must.

Consider the content of our common intuitions about marriage is that marriage is inherently
sexual, it is uniquely enriched by family life, and it uniquely requires permanent and
exclusive commitment to begin at all. Contending that these are characteristics of a basic
human good that only a couple of one man and one woman can realize.

3.2. Problems with the Revisionist View

Girgis’s main objection to the revisionist view is that it has no cogent way of distinguishing
marriage from companionship simpliciter. This objection is decisive.

Consider Oscar and Alfred, sharing a home and domestic duties and their unparalleled mutual
trust makes each other want the other to be the one to visit and manage his care if he is ill,
and inherit his assets if he dies. On the revisionist view, it seems obvious that Oscar and
Alfred have every right to march up to the courthouse and demand recognition as spouses.
But Oscar and Alfred are bachelor brothers who have never considered a sexual relationship.
Oscar and Alfred’s relationship may be worthy of respect, but their bond should not be
recognized as a marriage, because marriage somehow involves sex. Most revisionists would
agree, and hurriedly stipulate that sex is uniquely relevant to marriage. They certainly can
stipulate as much, but they cannot explain it. But why? why is sex inherently and
categorically more marital than other pleasing activities that build attachment? What about
sex, apart from its emotional effects, makes it critical to marriage?

The marriage often includes sex because the couplings we call “marriages” often result from
sexual attraction - is unresponsive here. It does not explain how sex might accomplish
something so different from other activities that it can set a whole class of bonds apart from
the range of friendships sealed by non-sexual activities. Girgis argues that only coital sex
does any such thing; only it constitues a bodily union as non-sexual acts cannot.

3.3. Sketching an Account of Marriage

Marriage, what is marriage? It is special. Two people (or more) enter a voluntary relationship
by committing to do certain things - to engage in certain activities - that aim at certain goods.
When people commit to pursue goods through embodying or characterizing activities under
the restraint of certain norms, the result is what we call a relationship, or a union, or a
community.

The three generic features which might classify kinds of union have been identified. It is
comprehensive:

1 in the most basic dimensions in which it unites two people, because it unites spouses in
their minds and bodies;

2 in the goods with respect to which it unites them, because in uniting them with respect to
procreation, it directs them to family life, and its broad domestic sharing;

3 in the kind of commitment that it calls for, namely a permanent and exclusive
commitment.

3.3.1. Comprehensive unifying acts: mind and body

Marriage requires a unity of minds and will but also includes bodily union. Spouses find it
uniquely fitting when their legal children are also a mixture of their two bodies. Most will
agree that this obvious where sex comes in.
3.3.2. Comprehensive unifying goods: procreation and domestic life

After observing that marriage unites spouses in mind and body, and in that sense is uniquely
comprehensive. It is oriented to children and family life, marriage also uniquely requires
spouses to be open to the whole range of human goods.

The connection between marital commitment and parenting is intuitive, but it is easily
misstated or misunderstood. Of course, children are not sufficient to create marriage, but
neither are they necessary. Marriage is not a means to procreation, but it is oriented to
procreation. And procreation fulfills and extends a marriage by fulfilling and extending the
act that embodies (consummates) the commitment of marriage: sexual intercourse, or the
generative act.

3.3.3. Comprehensive commitment: norms of permanence and exclusivity

It is left to show that marriage inherently calls for comprehensive commitment, whatever the
partners’ temperament or taste. The first two facts explain the third. A union comprehensive
in these two senses must be temporally comprehensive: through time and at each time.

For hundreds of years (a) infertility was no ground for declaring a civil marriage void, and (b)
only coitus was recognized as completing the marriage. If the point of marriage is to keep
parents together for the good of the children or potential children, why not let the clearly
infertile dissolve their marriage? If the legislation aimed at stigmatizing or devaluing people
attracted to their own sex, why not permit all heterosexual acts to consummate a marriage?
There is no puzzle at all here if we assume that the law reflected this rational judgment: The
uniquely comprehensive unions consummated by coitus are valuable in themselves, and
different in kind from other bonds – that is, the conjugal view.

3.4. Closing thoughts

On the conjugal view, a marriage is incomplete without consummation, but this does not
necessarily settle the ethical question of whether a paraplegic can form a true marriage at all,
much less the distinct policy question of which bonds to recognize. The strong view is to say
that you cannot commit to marriage unless you intend coitus, and you cannot intend coitus
unless you reasonably expect it to be possible in practice. This would certainly mean that a
paraplegic cannot form a true marriage. The softer view, is to say marriage only requires the
intent to perform coitus when reasonably feasible, and this intention in turn requires only that
coitus be possible in principle. Maybe the paraplegic’s partnership is just on a spectrum with
other opposite-sex unions: Each could consummate given normal conditions (good health,
time to reach arousal, etc.), even though the former would remain unconsummated.

We must pull back to remember our destination, the value of our inquiry. I have belabored the
importance of bodily union here not because it is all that makes a marriage, but because I
think it is essential to marriage and has lately been neglected. Keeping this all in mind, one
can indeed – as for centuries, almost every culture did – see something morally distinctive,
even awe-inspiring, and crucial for marriage, in the sort of act that unites generation to
generation as one blood, and man to woman as one flesh.
 CHAPTER IV

Conclusion: Compare and Contrast

Corvino, the writer from favour of same-sex marriage, dismantles the objection to gay
marriage. In order to decide whether same-sex couples should be allowed to marry, one must
first ask What is marriage? (the argument continues) the answer by Girgis to that question
shows that marriage is, by its very nature, a male-female union. So whatever it is that
same-sex couples are asking for, it isn’t a marriage. Same-sex marriage is thus an oxymoron,
like ‘married bachelor’ or ‘four sided triangle’. Call this the Definitional Objection to
same-sex marriage.

But why is marriage’s distinctive nature, and why does it exclude same-sex couples? The new
natural lawyers answer that marriage is a comprehensive union: a union of both mind and
body, exclusive and lifelong. As a comprehensive union, marriage must include bodily union.
But the only way human beings can achieve bodily union is through procreative-type acts -
that is, in coitus: penis-in-vagina sex. Obviously, same-sex couples cannot perform coitus.
Therefore, they cannot marry.

Let's consider we accept, solely for the sake of argument, that marriage requires bodily union
and that only coitus can achieve such union. Then the proper counterexample for the view is
not infertile heterosexuals, but rather those who cannot achieve coitus. Taking the example of
Bob and Jane, who were not able to perform coitus, still married and adopted children and
they enjoyed each other through other sexual acts and the happily family they jointly created.
If Bob and Jane didn’t perform coitus, were they not married? They were legally married but
not according to the new natural law view. This was a nice objection raised to Girgis.

At a softer version of the view in which Bob and Jane’s relationship could be marital as long
as coitus were possible ‘in principle’. It is not clear how this softer version gets off the
ground, however. Any random male-female pair engage in coitus in principle, but marriage
does not consist in what people might do if the world were different; it consists in what they
actually do. Suppose Bob was kidnapped before the wedding and never returned to Jane. In
that case, they would (sadly) never marry even though they could marry ‘in principle’ and
even though their failure to do so is fully involuntary.

The upshot is that the new natural law view avoids the infertile-couples objection only to get
stuck and live with something worse: the paretic counterexample. By making coitus a
necessary condition for marriage, the new natural lawyers must come to an end that Bob and
Jane’s ‘marriage’ is a counterfeit.