True to Form: Business "Corporations" Support Same-Sex "Marriage"

Inorganic Associations for Inorganic Unions

Here's a way to re-frame some of the ideas of my last post on appropriate corporate forms and the current anti-family structure of corporations law: The principles of modern corporations law justify same-sex marriage. This may either weaken Christian resistance to same-sex marriage, if we accept these principles, or force us to reevaluate the forms of modern corporations law.

The Basic Argument: just as corporations law grants businesses associations corporate status regardless of whether there is an underlying real, moral group entity, so too same-sex marriage law declares indifference as to whether a same-sex marriage is a real moral union. Both forms of legal association, business corporations and same-sex marriage, grant associational privileges without respect to an underlying real moral union. They both rely on the same commitment to legal constructivism, i.e. the idea that the law is permitted to privilege a social form without respect to a real underlying moral arrangement. In the case of business corporations, the replacement of the family as the primary mode of economic life has had massive effects as amoral anonymous business corporations were privileged over families. Homosexual "marriage" simply applies to marriage law the constructivism already enshrined in corporations law, further leeching away the privileged position of the organic family.

Consistency in their Principles

Consider how the defense of Christian marriage rests on the assertion that what is a real marriage should matter for law. In their well-known paper, What is Marriage?, p. 250-1, Prof. George, et al., recognize that normative evaluation of a legal institution in se assumes that it is not a pure construction of law: "First, marriage is not a legal construct with totally malleable contours—not 'just a contract.' Otherwise, how could the law get marriage wrong? Some sexual relationships are instances of a distinctive kind of relationship—call it real marriage—that has its own value and structure, whether the state recognizes it or not, and is not changed by laws based on a false conception of it. Like the relationship between parents and their children, or between the parties to an ordinary promise, real marriages are moral realities that create moral privileges and obligations between people, independently of legal enforcement ... the state cannot choose or change the essence of real marriage; so in radically reinventing legal marriage, the state would obscure a moral reality."

As there are real marriages, so there are real, organic corporations, e.g., people who have moral relationships that unite them into a single body with justified corporate powers and responsibilities. To use a classical example, an army, as opposed to a mob, is not just a crowd of individuals who happen to be together. An army is a real group with true moral relationships among its members, usually formed by oaths and mutual submission to military leadership, that justify treating it as one for many purposes, e.g., in attacking an individual member of an opposing army when the leadership of that army has declared war, though the individual has done nothing, or in imposing responsibility upon it for the acts of its members in violation of the laws of war. Another example: the Roman Catholic church, for historic and factual reasons, is regarded as a real, organic corporation under international law; it is not incorporated by any government, but it is afforded legal personality because it is considered a real group entity. In the Bible, nations are frequently treated as real corporate entities and they are treated this way under international law as well. The family is actually the central example in the Bible of a real corporate entity; thus, the actions of family heads, in acquiring property or making covenants or sinning or acting in faith, impact members across generations.

Under modern business corporations law, however, the absence of any real organic corporate existence is treated as irrelevant to the issue of whether the law should treat a particular business as having a corporate existence. Incorporation of a business commences and endures without reference to the existence of any real, social entity or moral relationship among shareholders. The shareholders of Exxon Mobil Corp., for example, lack any social relationship among themselves. With respect to one another, they are merely mutually anonymous contributors of capital to an enterprise from which they expect profit without bearing any responsibility for business operations. They have no real social unity and assume no real mutual social responsibilities. Nevertheless, modern corporations law gives associational privileges (legal personality, limited liability, formation facilitation, dispute-resolution support) to these shareholders.

If Christians affirm that corporations law may grant associational privileges regardless of the existence of an underlying moral group entity, then the same principle would support granting associational privileges to same-sex marriages regardless of the absence of a real marital union. The arguments would shift to the purely utilitarian considerations of constructing or not constructing such forms. By contrast, we may hold as Prof. George argues for marriage that "the state cannot choose or change the essence of real [corporations]; so in radically reinventing legal [corporations], the state would obscure a moral reality." In this case, we would believe that modern corporations law obscures the real corporate entities that should have our allegiance, e.g. the family and nation.

United for Homosexuality

Modern business corporations have joined the battle against Christian social forms. Fortune 500 corporations overwhelmingly fund and support homosexual activism. They rightly view the homosexual lobby as their natural allies in social constructivism. Christians should consider carefully whether the principles of corporations law with their massive social impact on how wealth and power are distributed away from natural communities of love, are consistent with the patterns of love to which they are committed. Having entrusted vast power to artificial corporations, Christians now find that those engines of efficiency are arrayed against the most basic institution of social life.

(Those interested in Christian legal theory may also note that there is a distinct idea of natural-law jurisprudence here. Instead of emphasizing natural-law jurisprudence in terms of our ability to rationally know what the primary norms of law should be, we might instead frame a commitment to natural law as anti-constructivist. A natural-law jurisprudence would insist that law should be made in relation to actual moral relations, whether known rationally or not, rather than creating artificial relations through force. Natural-law jurisprudence thereby loses its heavy epistemic commitments and becomes an ethic of law making favoring respect for naturally occurring organic relations over artificially created ones.)