It is one thing, and isn’t another—and that’s not mere subjective opinion. Or so we read in What is Marriage, a new and momentous paper authored by First Things board member Robert P. George, along with former First Things assistant editor Ryan Anderson and Rhodes Scholar Sherif Girgis. Found in the upcoming issue of the Harvard Journal of Law and Public Policy, the paper treats the trickiest arguments in the same-sex marriage debate the with the precision and rigor for which these three scholars are known. Questions, for example, of whether marriage is primarily a legally-sanctioned romantic partnership, or if its essential purpose resides in something else.
George, Anderson, and Girgis also address questions such as whether natural marriage discriminates against persons with same-sex attractions, how marriage differs from friendship, and whether its link to fertility and child-rearing is essential or merely incidental. They examine allegations of harm done by same-sex marriage, and explore the ways that re-imagining marriage will (and in some cases, already has) rework the state’s endorsement of the human family, as well as certain religious and moral freedoms. And then they take on the same-sex marriage arguments that most reflect the moral spirit of the age— “constructivist” arguments, as George, Anderson, and Girgis dub them. As for these kinds of claims, the authors write:
They deny that there is any reality to marriage independent of custom—any set of objective conditions that a relationship must meet to ground the moral privileges and obligations distinctive of that natural kind of union which we have called real marriage. For constructivists, rather, marriage is whatever social and legal conventions say that it is, there being no separate moral reality for these conventions to track. Hence it is impossible for the states policy to be wrong about marriage: different proposals are only more or less feasible or preferable.
December 14th, 2010 | 7:22 pm
From reading the quoted portion, it would look as if these fellows are attacking a straw man. In any case, it’s an atrociously bad piece of reasoning.
If social and legal conventions have a significant role in the practice of marriage (as most sensible people will concede) this implies that marriage is not “independent of custom.” But this needn’t imply that “it is impossible for states policy to be wrong about marriage” or that “there is no separate moral reality for these conventions to track.”
Most sensible people would concede that there is not “any reality to [(the rules of) baseball] independent of custom.” Yet this certainly doesn’t mean that it is impossible for someone (or even “states policy”) to be wrong about its rules. And it would be completely daft to suppose that changes in baseball’s rules are beyond any moral or practical guidelines.
It just goes to show that what should be obvious isn’t always so to ideologically driven minds.
December 14th, 2010 | 8:33 pm
“It just goes to show that what should be obvious isn’t always so to ideologically driven minds.”
Not sure I understand you, but if I do — wow. Isn’t that the pot calling the kettle black.
December 14th, 2010 | 9:42 pm
Ehrlich writes:
Most sensible people would concede that there is not “any reality to [(the rules of) baseball] independent of custom.” Yet this certainly doesn’t mean that it is impossible for someone (or even “states policy”) to be wrong about its rules. And it would be completely daft to suppose that changes in baseball’s rules are beyond any moral or practical guidelines.
You should probably read the whole thing; I think it is nearly 20,000 words.
What the authors are saying is not that someone could not be wrong about the rules internal to a tradition; rather, what they are arguing is that if all have is tradition, then there is nothing outside it by which to assess its legitimacy. Take, for example, the colors of traffic signals. Someone would be mistaken if he said, “The signals are brown, pink, and mauve,” since we know they are amber, green, and red. That is our convention. But suppose we changed them to brown, pink, and mauve. In that case, the claim would be right. If marriage is like that, then you can only be wrong about marriage within a tradition. But if marriage is more like justice, then the authors have a point. For example, if society X tortures children for fun, and says it is good to torture children for fun, internally you would be mistaken to say that it is wrong to torture children for fun if justice is just a convention. It seems to me that proponents of SSM want to say that marriage is more like justice than traffic signals. In that case, there is more to the correctness of marriage than the internal point of view. There are normative constraints as to what constitutes marriage. What precisely are they, is the question raised in the article? On the other hand, if marriage is not like justice but more like the colors of traffic signals, then SSM can’t complain about the current arrangement since that is our convention, and according to our internal point of view. That does not mean, of course, that it cannot change. But if it does change, SSM proponents who embrace the internal point of view can’t say there was an injustice in the past, since marriage, like the color traffic signals, is merely a social convention. In other words, any movement away from the internal point of view that appeals to normative constraints, shifts it to the question of “What is marriage?” independent of social conventions. That is, in order to assess the justice of social conventions we must first answer the question to see if someone is being treated unjustly.
December 14th, 2010 | 11:14 pm
Beckwith,
While your explanation does help, their actual quotation doesn’t exactly encourage me to sort through an additional 20,000 words of theirs.
Even with your explanation, the worry of the straw man looms large. Most sensible people simply aren’t assuming that marriage is completely a matter of otherwise arbitrary “traditions” or “social conventions.”
Look at it this way. Even in the case of choosing the particular colors of your traffic signals, practical and moral considerations will apply: changing the colors to brown, pink, and mauve would deserve criticism, as pink and mauve are really difficult to distinguish. Or, even if one can legitimately revise even the conventional purpose of traffic signals (perhaps because traffic signals later become obsolete), it would still deserve criticism to violate norms of morality in any future usage of those signals (and here be sure to note that the norms of morality are usually taken to be quite external to the much more narrow tradition of traffic signals). The lesson here is this: even for practices that are largely determined by tradition and social convention (like baseball and the color of traffic signals) this will rarely, if ever, imply that the practices aren’t nevertheless subject to practical and moral considerations independent of those traditions and conventions.
What this means is that George, Anderson and Girgis appear to be representing their opponents as holding the view that marriage is more dependent upon tradition and social convention than even the rules of baseball or the color of traffic signals. And that, of course, is a rather clear case of attacking a straw man.
December 15th, 2010 | 12:15 am
Ehrlich: You raise a good point. In a sense, even conventions are driven by basic goods. In that case, the issue is back to the metaphysical: is marriage a basic good, and if so, what is it? And given its nature, what social arrangement best instantiates the basic good of that institution?
That’s really what they are arguing about in the article. It is, in a sense, a dialectical case, attempting to “box in” the truth about this matter.
December 15th, 2010 | 1:11 am
Beckwith: we might rather say this: even conventions are constrained by moral and practical considerations (among others), driving the issue back to this: when we think about protecting/promoting/redesigning the institution of marriage, what moral and practical considerations ought to guide us? And what considerations of fairness, justice and political legitimacy ought to guide us when we think about a policy enforced by the state and which will inevitably affect the cherished liberties of our fellow citizens?
While these are questions we should all be able to accept, it’s hard to see how they will box us in to the particular answers that George, Anderson and Girgis are pushing for.
(Also, we needn’t presuppose that marriage is a “basic good”, or that some specific basic good lies at the essence of marriage. There may be a diversity of important values at stake here, none of which is most “basic”. Likewise, we shouldn’t just presuppose that there is some essential value lying at the heart of marriage. There may be a lot of important values involved, with none of them being individually essential to the institution.)
If it’s not already clear, I should also say that I really appreciate your helpful suggestions of what these authors are up to, even if I don’t find their project all that compelling.
December 15th, 2010 | 4:13 am
The article by Anderson, George, and Girgis makes an important contribution to our understanding of the nature of marriage. The authors clarify the differences between the conjugal and revisionist understandings of marriage and show the centrality to current debates of the question they pose in their title. It is a virtue of the article that the authors precisely do not presuppose the points in Ehrlich’s parenthetical penultimate paragraph above, but argue them.
It would be good to think that proponents of both conjugal and revisionist views of marriage will actually read and discuss the article in a serious way. But I am not too hopeful. Among other things, the authors take on and refute what advocates of same-sex marriage, even judges, repeat again and again as if they were unanswerable arguments–the bogus analogy with anti-miscegenation laws or with infertile heterosexual couples, for example. But no matter how carefully and thoroughly these points are refuted, they still pop up as if they were knockdown arguments that no-one had actually considered before.
One would like to think that this piece makes simply too strong a case to ignore, even for “ideologically driven minds.” But I am not counting on it.
December 15th, 2010 | 6:17 am
[...] [From What is Marriage? » First Thoughts | A First Things Blog] [...]
December 15th, 2010 | 6:19 am
[...] [From What is Marriage? » First Thoughts | A First Things Blog] [...]
December 15th, 2010 | 8:36 am
[...] Sherif Girgis releases a paper in the Harvard Journal of Law and Public Policy claiming the moral construction of marriage [...]
December 15th, 2010 | 12:58 pm
In practice, we all proceed on the assumption that marriage has a determinate meaning and that we can recognise the relationship of husband and wife as easily as we recognise that of parent and child, or guardian and ward. That is the only reason that a marriage contracted in one country is recognised in another.
Thus, in the case of Warrander v Warrander (1835), Lord Brougham said, “If, indeed, there go two things under one and the same name in different countries – if that which is called marriage is of a different nature in each – there may be some room for holding that we are to consider the thing to which the parties have bound themselves according to its legal acceptance in the country where the obligation was contracted.”
But this is not the case; “therefore,” says Lord Brougham, “all that the Courts of one country have to determine is whether or not the thing called marriage – that known relation of persons, that relation which those Courts are acquainted with, and know how to deal with – has been validly contracted in the other country where the parties professed to bind themselves. If the question is answered in the affirmative, a marriage has been had; the relation has been constituted; and those Courts will deal with the rights of the parties under it according to the principles of the municipal law which they administer.”
Naturally, Lord Brougham made an exception for polygamous unions; otherwise, as Lord Penzance explained, in Hyde v Hyde (1866), “the Court would be creating conjugal duties, not enforcing them, and furnishing remedies when there was no offence.”
December 15th, 2010 | 2:09 pm
Suppose procreation–the raison d`etre of marriage–is looked at in terms of the four classical causes–material cause (sperm+egg); efficient cause (intercourse);formal cause (biological complementarity); and final cause (chromosomal genetics, i.e., DNA). The same-sex marriagers are demanding, in effect, that we dispense with the only one of these causes that is not inherently manipulable either “primitively” or scientifically. The sheer unreasonableness of this demand suggests that exclusively opposite-sex marriage, which makes no similar demand, is alone convincing as an account of the nature of marriage. This amounts to saying that the idea of traditional marriage–what Robert George et.al. rightly call REAL marriage–is rationally compelling. The only way it wouldn’t be is if we live in a universe like the fictional one created by Mary Shelley.
It seems to me, though, that there’s a serious problem with the whole idea of “generative acts”–a problem of ambiguity. Are these acts of a kind that are (potentially) generative? If so, then there’s no valid distinction to be made between sterile opposite-sex couples and same-sex couples, since neither of them can actually procreate. Why then do we legally regard only one of those two types of partners as being marriageable?
Or are “generative acts”–less plausibly, in my view–acts of a generative kind? Less plausibly because of the seeming “loading the dice” of making the term *generative* rather than *act* the direct subject of *kind*. This may not be a FATAL ambiguity, but it is surely a problematic one. It leaves the door wide open to the same-sex marriagers to make a powerful rebuttal. This is the door left open by the article being discussed here, as well as in all of the writings on marriage by Robert George, John Finnis, and Patrick Lee that I have seen.
December 16th, 2010 | 3:55 am
Ken Zaretzke
The eye is the organ of vision – that is the intelligible structure that constitutes it in its species – and the fact that a given eye may be so atrophied or vitiated that it is incapable fo vision does not mean that it is ceases to be an eye and becomes something else.
At a practical level, the law should aim at simplicity, certainty and universality, based on stable, certain and comprehesible criteria; especially given the current advances in assisted reproduction, screening out infertile couples would be both burdensome and contentious. This, in itself, highlights the difference between the accidental or adventitious character of their infertility, in contrast to the intrinsic infertility of same-sex acts
December 17th, 2010 | 10:08 pm
The nature of marriage could be said to be found in how it is practiced. In the Hebrew scriptures, the form of marriage portrayed most often is that of polygamy. The Holy Family consisted of one very old man, his barely pubescent wife and the child born out of wedlock and not his. The advocates of traditional marriage are not saying that we should follow that example or the traditions of that time and place.
What proponents of “traditional marriage” want to preserve is a relatively young set of practices and customs that is most prevalent in their particular part of the world. What marriage “is” differs even now when you travel to other parts of the globe. Our traditions of marriage are not very traditional, when considering the various practices over human history and even now in other parts of the world.
Traditions develop over time and are retained by groups of people because, in a certain time and place, it serves their needs. When, over time and place, the composition of the group and/or their needs change, so too do their traditions need to, and usually do, change. We are shaped by our traditions and in turn, we reshape them when it is necessary and to our advantage.
However, traditions are usually changed with difficulty, and often people have difficulty with the change. America of the 1950′s is often though of a good example of “traditional” America. Blacks — and women — knew their place. So did the Catholics and Jews. For gay people, their place was in the closet. Traditional marriage at that time, among certain exemplary social and economic classes, was between one diet-pill addicted stay at home mom and her husband who was out having an affair with his secretary.
American society has changed since the 50′s. The civil, woman’s and gay rights movements have made a change in our traditions. Soon, homosexuals will be able to serve in the military openly, as is done now in the countries of several of our NATO allies. Eventually, it is hoped by many, all Americans will have the right to marry people of either sex, as is the practice, again, in several other countries.
These changes, of course, bother the traditionalists. What proponents of traditional marriage want to maintain is *their* tradition. It meets their needs. That it does not meet the needs of people different from themselves is of no concern, in practice, to them. That this discrimination advances no social good and does real harm is something they can not see. They claim, with no valid evidence, that quite the opposite is true.
South Africa knows something of discrimination. When things changed there, the people who came to power decided to not discriminate against same-sex couples. America was not the first country to free their slaves or to extend the right to vote to women. One day we too will catch up to countries like South Africa. We will extend to homosexual adults an invitation to partake in a relatively new tradition — the right to marry for love.
Considering the fact that a “civil-union” is more and more a form of marriage allowed to same sex couples, the tradition the traditionalists are mightily striving to protect is, partially speaking, simply the word “marriage”. Yet, when you think about it, all marriages are, at the very least, civil unions.
When a couple decides to marry, do they head on over to the local Hare Krishna temple to get a license? When they decide to divorce, do they and their lawyers appear before the folks in charge at the Scientology center? Some marriages may be celebrated in a religious setting and context, but that is insufficient for it to be considered a legal marriage. All marriages are a matter of civil law. No religious traditions are being told or even asked to change. The change being sought is a change in civil law. When most of the rights enjoyed by and obligations accepted by all people legally married are available to same-sex couples in the form of “civil unions,” what will change for the rest of us? A word.
People will say its more than that. But, recently, in a court of law, it was ruled that the case against same-sex marriage rested solely upon the fact the certain people say their God doesn’t approve. We will see if that ruling is upheld on appeal.
Discriminatory behavior based solely on religious beliefs may be part of some peoples traditions. In America, we call that “unconstitutional”. Being guided by the Constitution is a tradition most Americans value. And like the Constitution, when traditions need to change, they can, and should be.
December 18th, 2010 | 1:32 pm
Michael P.S.
I agree with what you say, and I agree that sterile and aged heterosexual couples can coherently marry, and there is no contradiction in refusing to allow same-sex couples to marry. As I’ve put it elsewhere, all opposite-sex couples, and no same-sex couples, have an intrinsic capacity to procreate–an ideal or actual capacity. True, this appears to require, in extremis (as with lesbian cloning to produce offspring that have 50% of the DNA of each partner), a resort to the idea of natural procreation. But that comes at the end of a chain of reasoning, not at the beginning, and I see no problem with it.
I just think the idea of reproductive-type acts, or acts of a generative kind, does not show why this “discrimination” between sterile heterosexual couples and same-sex couples is properly made. The notion of reproductive-type acts should be restricted to the developing of a theory of sexual morality and not used in a theory of marriage–it does not help us to defend traditional marriage for the reason I gave in my previous comment.
December 20th, 2010 | 1:24 pm
This article could be a good overview of what marriage really is for anyone looking for clarification. Thanks for posting.
December 20th, 2010 | 2:03 pm
I’m not entirely happy with Michael PS’s eye analogy. The eye is necessarily oriented to seeing (the function of the eye is to see), but marriage is not necessarily oriented to procreation; it is *generally* oriented to procreation (the function of marriage is not the propagation of the human race via procreation; that is the function of sex). If marriage were necessarily oriented to procreation, it would be hard to explain why sterile and aged heterosexual couples are allowed to marry.
The gap between a necessary and general orientedness to procreation can be filled by positing an ideal capacity to procreate, alongside an actual capacity. Together, the actual and the ideal capacity to procreate constitute an intrinsic or natural capacity. Homosexual couples, unlike sterile and aged heterosexual couples, lack both an actual and ideal capacity to procreate. Thus, if marriage (the institution) presupposes procreation (the general fact thereof), then same-sex marriage is basically a CATEGORY MISTAKE. Since there is no doubt that in the absence of procreation there would be no need for an institution as rigorous as marriage, the category-mistakenness of same-sex marriage–its utter inaptness–is as inevitable as the sun in the Sahara.
In sum, the new natural law argument against same-sex marriage is not without some significant flaws; and as for the proponents of same-sex mariage, they are the merest ideologoues–and dangerous one, too, to the extent that marriage is a social institution whose vitality depends on its conceptual coherence. The queering of marriage would preordain the collapse of marriage as an efficient protector of the common good.
December 28th, 2010 | 1:44 pm
People shouldn’t be ALLOWED to procreate with someone of the same sex. It is more unethical than siblings or fathers and daughters procreating. The only ethical way to procreate is by combining our unmodified gamete with someone else’s, which requires that it be of someone of the other sex. Attempting to creating offspring for same-sex couples should be prohibited and fined just like cloning should be, and other ways to create people besides the way everyone else is created, through the union of a man and a woman.
That’s the “bodily union” George is talking about. All marriages should be allowed and approved to conceive offspring together, even though it isn’t a guarantee that they will succeed or a requirement that they do. No marriages should be forced to use donor gametes or modified gametes, that is not bodily union and violates the basic rights of man to procreate.
December 31st, 2010 | 3:47 am
Marriage historically has been about men’s wallets. GA&G move the focus slightly from wallets to genitals. Both too-low views ignore what is seminal in our modern idea of marriage, the heart.
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