Rob at Waking Up Now is doing a great job analyzing Sherif Girgis, Robert George and Ryan Anderson’s article “What is Marriage?” from the Harvard Law Review. Here are parts one, two three and four of his ongoing series.
Little in the George paper is really new. It is however very well stated, and the flaws are much better hidden than usual. Mostly, though, they’re the same flaws as ever.
We hear about Catholic Charities in Massachusetts, a non-story long since debunked (short form: if you stop playing by the government’s rules, you can’t complain when the government stops handing you money). We hear of the slippery slope to polygamy, via the Beyond Same-Sex Marriage manifesto (signed by a group of far-left academics without a significant following, whether in or out of the gay community). Of course we rehash that one passage about non-monogamy from Andrew Sullivan. Where would the anti- side be without it?[1] Stanley Kurtz gets a cite, qualmlessly, because marriage will always be on the decline in Scandinavia.
And there is, very carefully phrased, the old argument that sexual complementarity is the heart of marriage. Although my husband doesn’t agree, I think the way the authors state this argument may actually be new. This passage is to my mind the key:
To form a real marriage, a couple needs to establish and live out the kind of union that would be completed by, and be apt for, procreation and child-rearing. Since any true and honorable harmony between two people has value in itself (not merely as a means), each such comprehensive union of two people — each permanent, exclusive commitment sealed by organic bodily union — certainly does as well.
Any act of organic bodily union [defined elsewhere as conventional heterosexual sex] can seal a marriage, whether or not it causes conception. The nature of the spouses’ action now cannot depend on what happens hours later independently of their control — whether a sperm cell in fact penetrates an ovum. And because the union in question is an organic bodily union, it cannot depend for its reality on psychological factors. It does not matter, then if couples do not intend to have children or believe that they cannot. Whatever their thoughts or goals, whether a couple achieves bodily union depends on facts about what is happening between their bodies. [p 266]
And, in answer to a common objection:
[T]he behavioral parts of the process of reproduction do not lose their dynamism toward reproduction if non-behavioral factors in the process — for example, low sperm count or ovarian problems — prevent conception from occurring, even if the spouses expect this beforehand… bodies coordinating toward a single biological function for which each alone is not sufficient are rightly said to form an organic union. [255]
This approach seems like a bit of a shell game to me. Whenever the authors are talking about psychological or social factors — as in the first sentence — biological sex vanishes. What matters is aptitude for children, and a true and honorable harmony between people. This by itself is valuable, the authors say, and it’s enough to constitute a comprehensive union of two people, as long as it’s consummated, almost as an afterthought.
But when they talk about biological sex, the aptitude and harmony go out the window, and the thing that makes a marriage real is a biological act, regardless of its intention or success, and apparently regardless of the harmony, or lack thereof, between the participants. Anyone, with seemingly any intention, can form a marriage, as long as they are a heterosexual couple who have done the deed.
The sex act is what allows the authors to include, as marriages, those troubled heterosexual unions that in no circumstances should be having kids at all. There are marriages with a history of domestic violence, drug addiction, and other serious physical and mental health problems. There are marriages in advanced age. There are marriages where the partners are just having a kid in a last-ditch effort to save a marriage that’s probably going to fail anyway. All of them remain marriages, even if it is difficult to argue that these unions would be “completed” by children in any sense at all, and even if, for most of them, aptitude seems entirely the wrong word.
And yet aptitude for raising children is precisely what is used to exclude gay people from marriage — even those who would be quite fit parents indeed, and at any rate obviously more fit than a pair of homeless mentally ill heroin addicts (who are nonetheless heterosexual!).
What unites these two aspects of marriage would appear to be a hidden premise, one I think very carefully hidden because it is so ridiculous: the premise that only heterosexuals are fit to raise children, and that not only are homosexuals sub-optimal, but they are more sub-optimal than any heterosexual union at all.
This approach to marriage, while both consistent and a little draconian, completely fails to capture what we mean by marriage in everyday life, even just among heterosexuals. Even there, we don’t evaluate marriages by biological or situational fitness to raise children.
Here’s a real-world example. Within the year, a family member is getting married. She already has several children; all are adults now. She is old enough to collect Social Security. And a few years ago, a medical emergency compelled her to have her uterus removed.
No one doubts that her marriage will be real, and even the paper’s authors would probably affirm it. The entire family is very happy for her; her fiance is a wonderful guy, generous to a fault and well-liked by everyone. I’m sure they will be great companions for each other throughout the rest of their lives. My biggest worry right now is how we’re ever going to find a suitably awesome wedding gift.
But where on earth is their “dynamism toward reproduction”? The very idea that they have any is preposterous.
It’s not in their intention, because they certainly don’t want more kids. And it’s not in their physiology, because the wife is no more capable of getting pregnant than I am. And it’s not in their aptitude for raising kids, uterine absence not withstanding, because even if a miracle did occur, and even if they did have a child, I can’t see how a couple pushing 70 would be “apt” for raising that kid. At their age, they’re more grandma and grandpa material. (Roles that, by the way, they’re performing with great verve.)
We can go further if we like. What if the man had lost his testicles, too? Or what if it wasn’t just a hysterectomy, but a vaginectomy? What if — say it ain’t so — the man didn’t have a penis? At what point does a heterosexual union lose its mysterious dynamism toward reproduction? Can it ever?
One might argue that the penis and the vagina are the important bits, and indeed, the article seems to suggest as much. It makes a great deal of the fact that one can annul a marriage for nonconsummation, but not for infertility. The authors even suggest, absurdly, that it is impossible to consummate a homosexual relationship, and that this is why same-sex unions can’t be marriages. (If they’re sincerely puzzled, I could show them some videos.)
But if the penis and the vagina are the key elements, why not the uterus? The uterus is, if anything, infinitely more important to the generative act than the penis. A man with testicles but no penis can still become a father. Surely, if anyone has a dynamism toward reproduction, an actual father does, either with or without a penis.
And can a post-op transsexual marry? A woman who was born a man will often have a very convincing vagina, at least so I’ve heard. Or do the chromosomes have to be right, too? I don’t recall mention of chromosomes in the article, but perhaps that’s what the authors intended. And if that’s the case, why can people with atypical sex chromosomes get married? Do they too have this dynamism toward reproduction?
I’m reminded of Jonathan Rauch’s observation that infertility is an impediment to all same-sex marriages, but an impediment to no heterosexual ones. Take out whatever component you wish from a heterosexual marriage, and a marriage remains. Remove the love. Remove the stability, the monogamy, or the sexual act itself. Remove the aptitude for raising children. Tamper with the chromosomes if you like. You can even remove the penis and/or the vagina. And it’s still a marriage. Add every one of these components to a same-sex marriage — even the penis and the vagina — and still, no marriage results.
If this is what our intuition tells us, then our intuition is pretty clearly leading us astray.
[1] Sullivan wrote: “Same-sex unions often incorporate the virtues of friendship more effectively than traditional marriages; and at times, among gay male relationships, the openness of the contract makes it more likely to survive than many heterosexual bonds. Some of this is unavailable to the male-female union: there is more likely to be greater understanding of the need for extramarital outlets between two men than between a man and a woman… But something of the gay relationship’s necessary honesty, its flexibility, and its equality could undoubtedly help strengthen and inform many heterosexual bonds.” (Virtually Normal, pp 202-203.) Of course, all right-thinking people understand that the only proper response to infidelity, always and everywhere, is divorce, and never, ever, reconciliation.
I think this is the killer point:
What unites these two aspects of marriage would appear to be a hidden premise, one I think very carefully hidden because it is so ridiculous: the premise that only heterosexuals are fit to raise children, and that not only are homosexuals sub-optimal, but they are more sub-optimal than any heterosexual union at all.
Although the relationship of legal marriage to ‘fit to raise children’ seems pretty loose. There are plenty of couples who can legally get married (such as your mentally impared hetrosexual herion addicts) who could never adopt children. Likewise there’s plenty of unmarried people who adopt or have their own children. Why then is the focus of arguments about gay marriage so centered on children when almost all children that a gay married couple might end up raising could just as likely be raised by the same gay couple living in a state where they can’t legally marry?Report
Any time someone attempts to use the word “moral” or “naturally”, I feel around to make sure my wallet is still there. Furthermore, “law” is not “policy”.
The whole George thing a big hot tranny mess. Marriage is one of two things:
1. A religious sacrament, constrained by religious doctrine and church policy.
2. A contract, defined by state law.
George may proceed along one definition or the other, but not both. Adoption is a contract, hell, you need to sign a contract to adopt a pet from the animal shelter.Report
Quibble: state and federal law, since same-sex marriages are not recognized by the feds regardless.Report
Yeah, so stipulated. I think there’s also a marriage concluded on the high seas, in international waters, which might not be merely a state contract.Report
I had wondered about that myself.
Why not just get a couple of cruise liners cater to the gay community and whip up a 3-day package? Throw in a bit of scuba diving in St. Thomas.
No feds, no state.
Everybody’s happy.Report
The marriages performed there would not be recognized on most land jurisdictions. The recognition of marriage is a different question from the performance of it. Some states (like Maryland, where I live, or New York), recognize same-sex marriages from other jurisdictions but do not perform them within the jurisdiction. Others don’t recognize or perform.Report
It sorta works the other way, too. There’s an interesting case, Estate of Bir where the court divided an estate between the two widows of a polygamous marriage.Report
Indeed. Recognition is often a more effective way of settling certain disputes, even if the state itself doesn’t want to perform marriages of a controversial type. One less exotic example is that a marriage does not cease to be valid in a state where one of the partners is too young to marry, provided that the marriage was performed in a state where the partners were both of legal age by that state’s laws.
Still, the mini-DOMA laws and amendments passed in most states have tended to refuse recognition to same-sex marriages explicitly.Report
I wonder, at turns, if the civil union route isn’t a more appropriate venue for some of these partnerships. Consider a pair of elderly widows who live together under the same roof, wishing only to conclude some sort of contract where the survivor will inherit. Any competent lawyer could draft a pair of wills, but a civil union would be far more direct.Report
That which is done out of love always takes place beyond good and evil.
Marriage between two persons strikes me as something that the government has no competence to judge.
At the end of the day, they’re stuck reading a flow chart on a laminated card. “Sorry. According to the card you two are ‘not married’. NEXT!”
This wouldn’t be so bad if there weren’t so much government coercion with regards to marriage… including, but not limited to, inheritance, hospital visitation, spousal privilege, and so on.
I’ve said before and I’ll say again: It shocks me that so-called “family values” types have not yet gotten sick of denying hospital visitation to people. That they have not yet gotten sick of overturning last wills and testaments leaving goods for a house/bedmate in favor of a family that refused to talk to the deceased for decades. I can’t comprehend it.Report
I don’t understand it either Jay, but one thing I do know. I’ve never in my sparse thirty one years of life seen more cold loathing and distaste in the eyes of another human being than I have looking into the eyes of the Mother of one of my gay friends and her Pastor when they were looking at his Husband.Report
Geez, how would you expect them to feel about the evil pervert who had seduced your helpless friend away from all that’s holy? At least, God and Prop. 8 willing, they’ll be able to get their son (and his stuff) back if he dies.Report
I hope you’re joking.Report
(he is)Report
Mike makes it a point to leave you in suspense on questions like this.
I’m pretty sure he is joking, though. Pretty sure. Or else almost all of his commenting oeuvre has been some sort of triple-super-secret-parody-played-straight-of-a-parody-of-someone-playing-a-parody-straight.
Which I think is improbable. It’s the best I can do.Report
Sadly, I think I understand it. They are not actually pro-family. They are pro-patriarchy and anyone who doesn’t follow their script of gender normalcy is a threat. Heck anyone who doesn’t subscribe to their view of the social order.
It is like when hippies see people driving a hummer.Report
I think it’s not so hard to understand, but you have to look past the words they use. The fact is they don’t like gays. They don’t like the idea that people are gay and they don’t like the idea that’s it has become more accepted and tolerated. Hence they will oppose policies that sound relatively harmless and fair (such as allowing visitation) because they represent the few sources of pseudo-stigma still left in society.
What’s problematic is that honesty has been booted out of the debate. Instead of just coming out and saying this is why gay marriage is opposed, we get convoluted word games that purport to demonstrate their motivation is anything (concern for children, concern for the divorce rate among straight marriages, monogamy, a deep respect for tradition, etc.) other than what it really is.Report
One of my more memorable college experiences was an Anthropology course on marriage and kinship systems. Our instructor had gone to some pains to aggregate a few pages of marriage definitions which he had seemingly extracted from every anthropological tome ever written. The goal of the writers was to, after pouring through the ethnographic record, devise a universal definition that reasonably fit all cultures. It became apparent after reading only a few entries what the problems were; a hundred exceptions could be found in the ethnographic record to the succinct definitions, and the definitions that attempted to account for this problem were so expansive as to be virtually meaningless.
The upshot was that “marriage” (in quotes now because there isn’t a truly universal definition) was a cultural construct and can’t be properly understood outside its cultural context. If you want to understand Nuer marriage, for instance, you need to get a grasp of the panoply of formal relationships in their culture, and if one of them more closely resembles our notion of marriage and you want to call it marriage, so be it.
The larger point I’m driving at is that if a culture wants to recognize gay marriage as marriage just say it is and it is. No need to talk about penises or vaginas or any other naughty bits, which don’t have any cosmic significance that I am aware of. If society says it is, it is.Report
That reminds me Jason do you still have a copy of your “Marriage as Mutual Nurturing” piece from a few years back? It would be nice to see that back on the web.Report
I do. I’ll repost it soon.Report
“Dynamism toward reproduction” is just a rephrased form of the shopworn and easily-refuted Argument From Reproduction, it seems. So too with the recital of the “unfaithful Andrew Sullivan” and “Stanley Kurtz confuses correlation with causation” claims — these are old canards, readily rebutted.
It isn’t all that difficult to imagine a future in which the genetic coding within a human egg could be eliminated and replaced with the genetic content of an “X-chromosome” sperm from one of two males, and then fertilized in vitro with sperm from a different male. Genetically, the resulting embryo would be the offspring of the two men.
It might be a bigger technical challenge to replace the genetic coding of a sperm with a female DNA donor (seems to me such a process would necessarily eliminate the possibility of a male offspring) but that misses the point. We’re not talking about how realistic particular kinds of science fiction scenarios might be, but rather the relationship between reproduction and marriage. What would that scenario do with Dr. George’s argument about “dynamism toward reproduction”?
(The answer is probably “It would do nothing,” because as Jason demonstrates, “dynamism toward reproduction” is nothing but code for George’s preference that penises interact only with vaginas and vice versa.)Report