The first three parts of this series (see Part 1, Part 2, and Part 3) detailed the positive arguments made by the authors for a “conjugal” view of marriage. The remainder of the book—chapters four through six, the conclusion, and the appendix—address objections to the view that the authors have presented. The fourth chapter, “What’s the Harm?”, addresses an objection commonly put by advocates of same-sex marriage, that extending the institution to same-sex couples will increase the blessings of marriage while doing no harm to existing marriages or marriage itself. The authors list six harms (53-72) that may arise from changing the definition of what a marriage is. Their argument is based on the ideas that Law tends to shape beliefs; beliefs shape behaviour; and beliefs and behaviours affect human interests and well-being (54). The particular harms identified are:

1. Redefining marriage redefines it for everyone. Opposite-sex unions would increasingly be defined by what they had in common with same-sex unions; that is, they would come to be seen primarily or even exclusively as emotional unions, and this would make the basic goods of marriage traditionally understood, more difficult to realise. For example, choosing a suitable partner might be reduced to emotional signals of compatibility rather than a prospective partner’s fitness for such prosaic things as domestic relations and parenting.
2. By making marriage about emotional union, the norms of marriage make less sense. If sexual complementarity is optional, so too are permanence and exclusivity. As the norms weaken, so might the emotional and material well-being that marriage gives to spouses.
3. Conjugal marriage reinforces the centrality of reproduction and parenting, and the idea that men and women bring different, complementary strengths to the tasks of parenting. As the connection between marriage and parenting is obscured, no parenting arrangement will be recognised as ideal. The problem here is not that same-sex couples cannot be excellent parents, but the development of the idea that mother or father is superfluous. The authors argue that the result will be the diminishing of the social pressures and incentives for husbands to remain with their wives and children, or for men and women to marry before having children. Ultimately, because having a loving biological father and mother is ideal for child development, many children, and so the state also, will be worse off.
4. The authors suggest that moral and religious freedom will be threatened for anyone who does not agree with the new legal definition of marriage. If support for conjugal marriage is really akin to racism—as has been claimed by those supporting changes to the definition of marriage, then those who support the traditional view should be subject to similar cultural and legal treatment that racists receive.
5. The revisionist view will undermine friendship and make things harder for single people. As marriage is defined simply as the most valuable or even only kind of deep communion, it becomes harder to find emotional and spiritual intimacy in nonmarital friendships.
6. Finally the authors address the so-called “conservative objection” that extending marriage would impose its norms on more relationships, which can only be a good thing. This objection fails, they suggest, because the state could not effectively encourage norms for which there is no deep and rational basis. “Rather than imposing traditional norms on same-sex relationships, abolishing the conjugal view would tend to erode the basis for those norms in any relationship” (67, original emphasis).

Chapter five, “Justice and Equality” (73-81), addresses the criticisms that the conjugal view is inconsistent when dealing with infertile marriages, and at odds with the principle of equal access to marriage. The second objection is easily addressed:

Laws that distinguish marriage from other bonds will always leave some arrangements out. You cannot move an inch toward showing that marriage policy violates equality, without first showing what marriage is and why it should be recognized legally at all. That will establish which criteria (like kinship status) are relevant, and which (like race) are irrelevant to marriage policy (80-81, original emphasis).

The authors argue, as noted in an earlier post, that infertility does not invalidate a marriage, for even the infertile couple engage in an act of bodily union that is fit for and capable of reproduction even if the goal is never achieved. Further, the infertile couple demonstrate that marriage is a human and social good in itself, that marriage is more than merely reproduction. Of course a friendship between two men or two women is also valuable in itself, but “lacking the capacity for organic bodily union, it cannot be valuable specifically as a marriage; it cannot be the comprehensive union on which aptness for procreation and distinctively marital norms depend” (76, original emphasis).

Is support for the conjugal view of marriage “a cruel bargain”—the title of the sixth chapter (83-93)? Does it win support for the many at a cruel cost for the few? Why argue for a position that harms the personal fulfilment, practical interests, and social standing of same-sex-attracted people? The authors agree that same-sex couples, and indeed many other kinds of relational partnerships seeking practical legal benefits (such as recognition as next of kin, financial and medical rights, etc.) should not be hindered from obtaining them. Further, because every marriage policy will keep some people from legally recognised relationships, we must fight against arbitrary or abusive treatment of those for whom this is the case, with the same force and diligence that we use to oppose unjust distinctions by race or sex (91).

Legal recognition does not include changing the definition of marriage, however, for sheer legislative will cannot erase the very real differences between the conjugal and revisionist views of marriage, or make disregarding them harmless to the common good. “Redefining civil marriage means pretending otherwise” (87).

The same-sex civil marriage debate is not about anyone’s private behavior, but about legal recognition. … Legal recognition makes sense only where regulation does: these are inseparable. The law, which deals in generalities, can regulate only relationships with a definite structure. Such regulation is justified only where more than private interests are at stake, and where it would not obscure distinctions between bonds that the common good relies on. As we have argued, the only romantic bond that meets these criteria is marriage, conjugal marriage (90, 92).

The authors conclude, therefore, that marriage is a particular kind of union with distinct and essential features which cannot be set aside without fundamentally changing and weakening what marriage is. They make this claim on the basis of philosophical and legal considerations without appeal to religious or theological authorities. They have amassed a great deal of evidence to highlight the rationality of their arguments, and to show how and why counter-arguments fail.

Marriage is not a legal construct with totally malleable contours—it is not “just a contract.” Instead, some sexual relationships are instances of a distinctive kind of bond that has its own value and structure, which the state did not invent and has no power to redefine. As we argued in chapter 1, marriages are, like the relationship between parents and their children or between the parties to an ordinary promise, moral realities that create moral privileges and obligations between people with or without legal enforcement. Whatever practical realities draw the state into recognizing marriage in the first place (e.g. children’s needs), the state, once involved, must get marriage right to avoid obscuring the shape of this human good (80, original emphasis).

Marriage understood as the conjugal union of husband and wife really serves the good of children, the good of spouses, and the common good of society. When the arguments against this view fail, the arguments for it succeed, and the arguments against its alternative are decisive, we take this as evidence of the truth of the conjugal view. For reason is not just a debater’s tool for idly refracting positions into premises, but a lens for bringing into focus the features of human flourishing (97).

The second chapter of What is Marriage? sets forth the authors’ rationale for their view of conjugal marriage, which they further define as “Comprehensive Union.” Comprehensive union is grounded in biological and social realities: without bodily union, a relationship cannot be considered “comprehensive” even if it includes other aspects such as companionship and common domestic life. Further, just as the organs of one’s body are coordinated for the single biological purpose of the whole that they form together, just so “for two individuals to unite organically, their bodies must coordinate toward a common biological end of the whole that they form together” (25, original emphasis).

There is one respect in which this highest kind of bodily unity is possible between two individuals, one function for which a mate really does complete us: sexual reproduction. In coitus, and there alone, a man and a woman’s bodies participate by virtue of their sexual complementarity in a coordination that has the biological purpose of reproduction—a function that neither can perform alone. … Here the whole is the couple; the single biological good, their reproduction (26, original emphasis).

The authors note that it is this coordination toward procreation which makes the union, not the achievement of procreation in itself. Comprehensive union is of value in itself, and not simply as a means to an end. Because it has a unitive as well as a procreative function, the failure to conceive a child does not invalidate the bodily coordination.

Because marriage is uniquely ordered to having and raising children, marriage calls for the wide-ranging co-operation of a shared domestic life to support that end: “the demands of marriage are shaped by those of parenting” (28). Again, the argument is not “that the relationship of marriage and the comprehensive good of rearing children always go together. It is that, like a ball and socket, they fit together: that family life specially enriches marriage; that marriage is especially apt for family life, which shapes its norms” (29, original emphasis). Procreation is the good that fulfils and extends a marriage because it fulfils and extends the act that embodies or consummates the commitment of marriage: the same act by which spouses make love also makes new life; it both seals the marriage and brings forth children (30).

The authors continue to use the biological complementarity of the male and female, and the organic analogy to argue for permanence and sexual exclusivity as norms which characterise the marital relation; comprehensive union requires comprehensive commitment. Marriage is possible only between two because no act can organically (bodily) unite three or more parties. The raising of children and establishing of family is an open-ended task calling for whole-of-life commitment and coordination which in turn requires undivided commitment. Divorce and infidelity undermine the stability conducive to this task and commitment. Because the conjugal view of marriage understands it as distinguished by bodily union and its natural fulfillment in children and family life, it is able to make sense of a pledge to sexual exclusivity, which the revisionist view finds difficult to explain (33-34).

An account of marriage must explain what makes the marital relationship different from others. In our view, the kind of union created by consent to marriage is uniquely comprehensive in how it unites persons, what it unites them with respect to, and how extensive a commitment it demands. … In short, as most people acknowledge, marriage involves a bodily as well as mental union of spouses, a special link to children and domestic life, and permanent and exclusive commitment. All three elements converge in, and go to constitute, the conjugal view (35-36, original emphasis).

Continued Soon…

What is Marriage? Man and Woman: A Defense (New York: Encounter, 2012) by Sherif Girgis, Ryan T. Anderson, and Robert P. George, began its life as an article in the Harvard Journal of Law and Public Policy (Vol. 34, No. 1, Winter 2010,  245-287), which was both well received and heavily contested. The book is an expansion of the original article as well as a response to the discussion which arose in the aftermath of the article. At the time of publication Girgis and Anderson were doctoral candidates at Princeton and Notre Dame Universities respectively, while George was Visiting Professor at Harvard Law School and Professor of Jurisprudence at Princeton University. The authors also present their argument in person at a Wheatley Institute lecture.

The book is relatively short (xiv + 133 pages) and comprises six chapters together with an introduction, conclusion, and appendix. It is very concisely and clearly argued, as well as carefully circumscribed: they explicitly state that the argument is not about homosexuality, the morality of homosexual acts or their heterosexual counterparts; they are not making a religious argument; they are not offering an historical or social-scientific argument, although these play a supporting role in their argument. They are detailing a philosophical and legal defense of what they term a “conjugal view” of marriage over against a “revisionist view.” The revisionist view informs many heterosexual approaches to marriage and is not limited simply to those advocating same-sex marriage. Nevertheless, that the question is highly conflicted in the present context provides an occasion to revisit the arguments made, and to reflect specifically on the question of same-sex marriage. Finally, I note that the book was published prior to the US Supreme Court decision of June 2015, allowing same-sex marriage, and reflects that milieu and state of play.

The authors set forth their argument in brief, in the introduction:

Our essential claims may be put succinctly. There is a distinct form of person union and corresponding way of life, historically called marriage, whose basic features do not depend on the preferences of individuals or cultures. Marriage is, of its essence, a comprehensive union: a union of will (consent) and body (by sexual union); inherently ordered to procreation and thus the broad sharing of family life; and calling for permanent and exclusive commitment, whatever the spouses’ preferences. It has long been and remains a personal and social reality, sought and prized by individuals, couples, and whole societies. But it is also a moral reality: a human good with an objective structure, which it is inherently good for us to live out.

Marriages have always been the main and most effective means of rearing healthy, happy, and will-integrated children. The health and order of society depend on the rearing of healthy, happy, and well-integrated children. That is why law, though it may take no notice of ordinary friendships, should recognize and support marriages.

There can thus be no right for nonmarital relationships to be recognized as marriages. There can indeed be much harm, if recognizing them would obscure the shape, and so weaken the special norms, of an institution on which social order depends. So it is not the conferral of benefits on same-sex relationships itself but redefining marriage in the public mind that bodes ill for the common good. Indeed, societies mindful of this fact need deprive no same-sex-attracted people of practical goods, social equality, or personal fulfillment.

Here, then, is the heart of our argument against redefinition. If the law defines marriage to include same-sex partners, many will come to misunderstand marriage. They will not see it as essentially comprehensive, or thus (among other things) as ordered to procreation and family life—but as essentially an emotional union. … to the extent that marriage is misunderstood, it will be harder to see the point of its norms, to live by them, and to urge them on others. And this, besides making any remaining restrictions on marriage arbitrary, will damage the many cultural and political goods that get the state involved in marriage in the first place (6-7, original emphasis).

The introduction also provides a sense of the terms “conjugal” and “revisionist,” that the authors use to describe two visions of marriage. The conjugal view sees marriage as a comprehensive union, joining spouses in body and mind, begun by consent and sealed in sexual intercourse. It is “especially apt for and deepened by procreation,” which then calls for broad sharing of domestic and family life. Uniting spouses in an all-encompassing way, it “objectively calls for all-encompassing commitment: permanent and exclusive.” Such comprehensive union is inherently good, though “its link to children’s welfare makes marriage a public good that the state should recognize and support” (3). The revisionist view which has informed marriage policy now for half a century or so, sees marriage “as a loving emotional bond, one distinguished by intensity—a bond that needn’t point beyond the partners, in which fidelity is ultimately subject to one’s own desires. In marriage, so understood, partners seek emotional fulfillment, and remain as long as they find it” (1-2). The view of marriage as an intense emotional bond was ratified by the US Supreme Court judgement.

The first chapter, entitled “Challenges to Revisionists,” begins by claiming that marriage, as traditionally understood, is a basic human good. It is not, of course, the only human good, nor the only means to a good life. To redefine marriage, then, is not simply to change a legal artefact or title, but to misunderstand a basic human good, and so to diminish the possibility of living out the real thing (14). The chapter argues that the revisionist view fails on its own terms, for it cannot coherently account for the three points common to both sides of the debate: that the state has an interest in regulating certain relationships; that interest exists only if the relationships are sexual; and it exists only if they are monogamous (15).

If you insist as a matter of principle that we should recognize same-sex relationships as marriages, the same principle will require you to accept (and favor legally recognizing) polyamorous—and, as we saw above, nonsexual—relationships as marriages. In other words, on the best accounts on which two men or two women can marry, marriage consists of emotional union and domestic life. But as pleasing and valuable as emotional union can be, there’s nothing about marriage so understood that also requires it to be dyadic, sexually closed, or even sexual at all. Yet bonds that lack these features just aren’t marriages. So the best theories by which any two men or women can marry are mistaken: they get other, less disputed aspects of marriage wrong. … As we deprive marriage policy of definite shape, we deprive it of public purpose. Rigorously pursued, the logic of rejecting the conjugal conception of marriage thus leads, by way of formlessness, toward pointlessness: it proposes a policy for which it can hardly explain the benefit (20-21, original emphasis).

Continued tomorrow…