Is there any meaningful debate going on regarding the so-called “gay marriage”? No. Those invested in making it happen have the cultural and political upper hand and a serious debate harms their good prospects. One after the other Republican and Democrat politicians who until days ago were supposedly staunch defenders of traditional marriage are now “seeing the light.” That is, the light of political expediency.

The issue of “gay marriage” has been reduced to an issue of “liberty”, “rights”, and “equality”, when in truth it is not about that at all. Even some Evangelical pastors are buying into the narrative of political or civil rights. Again, the debate is now a purely political exchange where you vie for your position, claim certain rights, and call the other side names such as “intolerant” or “anti-gay.” We should not be surprised at the absence of substantive discussion when it might deviate from the prize. It might be asked what the marriage controversy is then all about if it is not about rights and freedom? This is an intelligent question, one that sends us in the right and meaningful direction.

The answer is that the controversy is about the meaning of marriage itself. If there is an intrinsic reality to what marriage is, it ceases to be a human construct, hence possibly limiting certain rights-claims. If a given act or condition has determinate contours, can the law by fiat, or magic, change them? Let us take a historical example. Our Declaration of Independence speaks of three inalienable rights: life, liberty and the pursuit of happiness. These are called inalienable because they are intrinsic, preventing any human power from rightfully depriving people of them. Some of us think that in great measure (although not exclusively) the Founders meant property when they referred to the pursuit of happiness. How else can it be understood as if one is deprived of the goods coming from one’s brow well-being might be endangered? Can happiness be attained under that kind of serfdom?

Now, for a portion of our history, we ought to regret admitting, certain human beings were considered property. The law gave “owners” of persons property rights over them. What a conundrum! One inalienable right is affirmed at the expense of the claim of other human beings to the same right. Moreover, the latter claimants could point to the fact that if they are property they are deprived of all their rights.

Where is the fault in reasoning with the legal claim? The legal fallacy resides in pretending that a human being can be property; that we can be decreed to be objects instead of subjects. The very character of human beings prevents us from agreeing with such law as it is a fiction, as it cannot magically change human nature. A piece of paper stamped with a seal or even a vote by overwhelming majorities cannot change what human beings intrinsically are. When laws attempt to do so, they immediately lose their character as law and must be rejected and disobeyed. They lose power to bind the conscience of any law-abiding citizen. Positive law cannot per se grant moral right.

There lies the issue at hand before us today: what is that institution we call marriage? Some of us affirm that, as with the humanity of slaves, marriage has an intrinsic and determinate feature which can be discovered by reason, without appeals to religious sentiment. As marriage is inherently heterosexual, laws changing that traditional understanding lose their character as law. They might pretend to use power to force conformity, a dictatorship of the will, but they cannot change the nature of things. They can change what marriage is as much as the state can make it happen if it were to declare that from now on men can get pregnant. Would the law suddenly and, again, magically, effect the sorcery? Would we begin to hear men then say, “Hey, my water just broke?”