First published at 365gay.com on January 21, 2011
The recent Harvard Journal of Law and Public Policy article “What is Marriage?” [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1722155], by Sherif Girgis, Robert George, and Ryan Anderson (hereafter GGA), has received considerable attention—as it should. (Jonathan Rauch’s incisive retort links to much of the discussion; see here: https://igfculturewatch.com/2011/01/12/let-them-eat-friendship-george-et-al/.)
That’s because the article contains the most detailed and accessible summary to date of the “new natural law” position on marriage, the most developed scholarly argument available that same-sex “marriage” is impossible by definition. George, the most prominent of the three authors, is a Princeton professor of jurisprudence. (The others are graduate students.) In terms of intellectual firepower, this is the best the opposition has to offer.
Which means that if anything can give us insight into the opposition’s mindset—including its blindspots—this article should.
GGA’s article runs over 40 pages, and I can’t give it any kind of thorough treatment in an 800-word column. What I can do is highlight one problem that the online discussion has largely overlooked.
GGA’s basic argument is that legal marriage reflects (or should reflect) a pre-legal reality called “conjugal marriage”: a comprehensive union between a man and a woman consummated by reproductive-type acts (coitus) which unite them biologically, and thus personally. This is what GGA consider “real marriage.”
They contrast this “conjugal” view with a “revisionist” view, where marriage is the emotional union of two people of any sex who commit to mutual care and who may engage in whatever sexual acts they both find agreeable.
According to GGA, the revisionist view can’t be right, because (among other problems) it fails to capture people’s widespread intuitions about marriage, including the belief that non-consummation is grounds for annulment, that marriage is specially linked to childrearing, that it is permanent and exclusive, that it consists of two and only two people, and that the state is properly interested in it.
Yet GGA’s view is itself radically counterintuitive: it straightforwardly conflicts with some near-universal views about marriage. Four cases will make this point clear.
Case 1: While engaged to marry Jill, Jack has a horseback-riding accident which paralyzes him from the waist down. Nevertheless, the two legally marry and spend the next fifty years raising several children that they adopt. Though coitus is impossible, they engage in other acts of sexual affection.
Are Jack and Jill married? It seems obvious that they are. But on GGA’s view, they are not. They never achieve the biological union constitutive of marriage, and the state’s recognition of their “marriage” embodies a falsehood.
Case 2: Here’s a trivia question: how many wives did King Solomon have?
If you guessed more than one, you’re wrong! According to GGA, real marriage consists of the union of only one man and one woman, making polygamous marriage not just inadvisable, but impossible in principle.
Oddly, GGA see this implication as an advantage of their view. But while most Americans oppose polygamous marriage, they don’t see it as a contradiction in terms. Historians and anthropologists most certainly don’t.
(For what it’s worth, Maggie Gallagher seems to agree with me. See https://blog.marriagedebate.com/2006/08/beyond-marriage-maggie-gallagher-joins.htm.)
Case 3: Adam and Eve want to marry but (because of a heritable disease that runs in Adam’s family) do not want offspring. Prior to marrying, Adam has a vasectomy, and Eve, just to be extra safe, has her tubes tied. After legally marrying, they engage in coitus. They never regret their choice of permanent surgical contraception.
If real marriage requires “organic bodily union” ordered toward “the common biological purpose of reproduction,” as GGA insist, then Adam and Eve have never really married, and the state’s recognition of their “marriage” again embodies a falsehood.
(One could imagine GGA taking a different tack with Case 3, arguing that Adam and Eve’s deliberately-contracepted coitus can still consummate their marriage, since the pair still performs the “first step of the complex reproductive process.” But this tack seems inconsistent with other parts of their argument—notably their rejection of what they call “mind-body dualism”—and would confirm critics’ suspicion that for GGA, “organic bodily union” means nothing more than “penis in vagina.” Note that the case is relevantly different from GGA’s much-discussed “infertile couples” cases, which depend crucially on infertility’s being a “non-behavioral” factor.)
Case 4: Ronald marries Jane. They consummate their marriage. They later divorce. Ronald marries Nancy. Are Ronald and Nancy married?
Not according to GGA, since real marriage is exclusive and permanent. Once again, in acknowledging their “marriage,” the state propagates a falsehood.
GGA have been quite vigorous in responding to critics, and if I’ve misinterpreted their view, I’m sure they won’t hesitate to say so.
But if I have it right—and if, in particular, paraplegics, consistently contracepting couples, and divorcees can’t achieve marriage—I doubt that many Americans will find GGA’s position a reasonable account of what marriage is.