An Important New Paper on Marriage

Professor Robert George, of Princeton University, has co-authored with his colleague, Professor Sherif Girgis, and Professor Ryan T. Amderson, of Notre Dame, a very cogent paper on the topic: "What Is Marriage?" (The paper will be published in a forthcoming issue of the Harvard Journal of Law and Public Policy. It may be downloaded as a .pdf from this page.)

In their paper, the authors take on -- and systematically demolish -- many of the standard "cases" for full-fledged recognition of same-sex marriage. (The article uses the word "marriage" in its traditional sense, as the civilly and religiously recognized union of one man with one woman, for life. The authors have no quarrel with state-sanctioned "civil unions" between people of the same gender -- except that they can find no logical bar to allow such unions between other willing people as well, which have until now been regarded as illegal: if they are all right for same-sex couples, why not allow "civil unions" for polygamous and polyandrous relationships, or for incestuous unions of same-sex siblings, which could not result in unhealthy offspring? The fact that there is no principled way to draw the line on just unions of same-sex couples is at the same time an additional reason not to abandon the traditional recognition given to heterosexual marriage.)

They begin, for example, by clearing away the false reasoning that tries to equate a society's refusal to extend marriage to same-sex couples with earlier societies' bans on interracial marriage. To begin with, as the authors observe in a footnote: "Throughout history, no society’s laws have explicitly forbidden 'gay marriage.' They have not explicitly forbidden it because they have not referred to it. They have not referred to it because, until recently, it has not been thought possible." (Recently, of course, certain African countries have made the news for proposing laws which would outlaw marriage ceremonies between people of the same sex, and punish same-sex couples for living together. But these are a reaction to Western laws and court decisions allowing such marriages, just as California's Proposition 8 was.)

This distinction is crucial to understanding why laws against miscegenation unconstitutionally discriminated on the basis of race, while laws defining traditional marriage do not discriminate against persons based on their sexual orientation (p. 4; footnote [quoted in previous paragraph] omitted):

Opponents of interracial marriage typically did not deny that marriage (understood as a union consummated by conjugal acts) between a black and a white was possible any more than proponents of segregated public facilities argued that some feature of whites-only water fountains made it impossible for blacks to drink from them. The whole point of antimiscegenation laws in the United States was to prevent the genuine possibility of interracial marriage from being realized or recognized in order to maintain the gravely unjust system of white supremacy.

By contrast, the current debate is precisely over whether it is possible for the kind of union that has marriage’s essential features to exist between two people of the same sex. Revisionists do not propose leaving intact the historic definition of marriage and simply expanding the pool of people eligible to marry. Their goal is to abolish the conjugal conception of marriage in our law and replace it with the revisionist conception.

The "conjugal conception of marriage" is precisely the traditional one, defined at the outset of the article as follows:

Conjugal View: Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts—acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it.

This is contrasted with the "revisionist view of marriage", which the authors describe as:

Revisionist View: Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear.

As the authors go on to show, revisionists when pressed cannot define what is the essence of what they are choosing to label "marriage" -- and so cannot logically exclude from their concept polygamous groups, incestuous couples, and other joinings which have traditionally been forbidden on moral, health and other social grounds. But the conjugal definition of marriage naturally includes precisely those unions which have procreative potential, and only those unions, because of the conjugal element which is at its core. Only a male and a female may so conjoin their bodies as to give rise to the possibility of generating offspring. And while any man and any woman may choose so to conjoin their bodies, no such conjoining constitutes "marriage", traditionally understood, without the concomitant elements of permanency and exclusivity in the commitment so evidenced.

Then why should the blessings of traditional marriage be extended to infertile couples, if a central purpose of it is the procreation of children? The authors answer that question by first analyzing just what it is about the union of two bodies which makes a marriage:

Marriage is distinguished from every other form of friendship inasmuch as it is comprehensive.

This comprehensiveness embraces at least the broad dimensions of the spouses’ lives and persons. So it involves a sharing of lives and resources, and a union of minds and wills—hence, among other things, the requirement of consent for forming a marriage. But on the conjugal view, it also includes organic bodily union. This is because the body is a real part of the person, not just his costume or vehicle or property. Human beings are not properly understood as nonbodily persons (minds, ghosts, consciousnesses) that inhabit and use non-personal bodies.
. . .
Because our bodies are truly aspects of us as persons, any union of two people that did not involve organic bodily union would not be comprehensive—it would leave out an important part of each person’s being. Ordinary friendships can be profound and even complete as friendships, but they do not unite their participants at every level. Ordinary friends are not united in an organic bodily way; spouses are.

In other words, because persons are body-mind composites, bodily union extends two friends’ relationship along an entirely new dimension of their being as persons. If two people want to unite in the comprehensive way proper to marriage, they must (among other things) unite organically—that is, in the bodily dimension of their being.

This necessity of bodily union can be seen most clearly by imagining the alternatives. Suppose that Michael and Michelle build their relationship not on sexual exclusivity, but on tennis exclusivity. They pledge to play tennis with each other, and never to play tennis with anyone else, until death do them part. Are they thereby married? No. Substitute for tennis any non-sexual activity at all, and they still aren’t married: Sexual exclusivity—exclusivity with respect to a specific kind of bodily union—is required.

Since this is the core of their argument, I shall quote the authors at length. They continue:

But what is it about sexual intercourse that makes it uniquely capable of creating bodily union? People’s bodies can touch and interact in all sorts of ways, but why does sexual union make bodies in any significant sense “one flesh”?

Our organs—our heart and stomach, for example—are parts of one body because they are coordinated, along with other parts, for a common biological purpose of the whole: our biological life. As soon as one part ceases to coordinate for the good of our whole organism, it stops being an organic part of us in any robust sense. Now two individuals unite organically, and thus bodily, when their own bodies are coordinated for some biological purpose of the whole.

That sort of union is impossible in relation to functions such as digestion and circulation, for which the human individual is by nature sufficient. But individual adults are naturally incomplete with respect to one biological function: sexual reproduction. In coitus, but not in other forms of sexual contact, a man and a woman’s bodies coordinate by way of their sexual organs for the common biological purpose of reproduction. They perform the first step of the complex reproductive process. Thus, their bodies become in a strong sense one—they are biologically united, and do not merely rub together—in coitus (and only in coitus), similarly to the way in which one’s heart, lungs, and other organs form a unity: by coordinating for the biological good of the whole. In this case, the whole is made up of the man and woman as a couple, and the biological good of that whole is their reproduction.

Here’s another way of looking at it. Union on any plane—bodily, mental, or whatever—involves mutual coordination on that plane, toward a good on that plane. When Einstein and Bohr discussed a physics problem, they coordinated intellectually for an intellectual good: truth. And the intellectual union they enjoyed was real, whether or not its ultimate target (in this case, a theoretical solution) was reached—assuming, as we safely can, that both Einstein and Bohr were honestly seeking truth and not merely pretending while engaging in deception or other acts which would make their apparent intellectual union only an illusion.

And this realization is why fertility (or the lack of it, or the intending of it, or the non-intending of it) is not the defining criterion of traditional marriage:

By extension, bodily union involves mutual coordination toward a bodily good—which is realized only through coitus. And this union occurs even when conception, the bodily good at which sexual intercourse considered as a biological function aims, does not occur. In other words, organic bodily unity is achieved when a man and woman coordinate to perform an act of the kind that causes conception. This act is traditionally called the act of generation or the generative act; if it is a free and loving expression of the spouses’ permanent and exclusive commitment, then it is also a marital act.

Since interpersonal unions are valuable in themselves, and not merely as means to other ends, a husband and wife’s loving bodily union in coitus and the special kind of relationship to which it is integral are valuable whether or not conception results and even when conception is not sought. But two men or two women cannot achieve organic bodily union since there is no bodily good or function toward which their bodies can coordinate, reproduction being the only candidate.⁴ This is a clear sense in which their union cannot be marital, if “marital” means comprehensive and “comprehensive” means (among other things) bodily.

. . .

Thus, infertility is no impediment to bodily union and therefore (as our law has always recognized) no impediment to marriage. This is because in truth marriage is not a mere means, even to the great good of procreation.²¹ It is an end in itself, worthwhile for its own sake. So it can exist apart from children; the state can recognize it in such cases without distorting the moral truth about marriage.

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⁴Pleasure cannot play this role for several reasons. The good must be truly common and for the couple as a whole, but pleasures (and, indeed, any psychological good) are private and benefit partners, if at all, only individually. It must be bodily, but pleasures are aspects of experience. It must be inherently valuable, but pleasures are not as such good in themselves—witness, for example, sadistic pleasures. For more on this philosophical point, see Patrick Lee and Robert P. George, Body-Self Dualism in Contemporary Ethics and Politics (Cambridge University Press, 2008).

²¹On the conjugal view, spouses pledge to form a union that is comprehensive, and therefore bodily, and therefore procreative by nature. They do not and cannot pledge to form a union that results in procreation.

I hope I have given you enough of the caliber of argument to whet your appetite for the whole piece. Along with this earlier paper and this earlier article (and see also, if you wish, my own modest contribution to the topic), I consider the case for traditional marriage to have been made on as many definitive grounds as one could ever wish.