When contending with philosophic heavyweights, one can either refuse to argue or argue to win, but the worst thing one can do is to debate without actually arguing. Something like that was in play when NYU Law professor Kenji Yoshino penned a brief response in Slate to “What is Marriage?”, a paper released last week making the case for traditional marriage. In his rejoinder, Yoshino suggests that the conjugal view of marriage is untenable because its existence would be unfair to those who cannot (or choose not) to achieve it. Although he might have been the right kind of scholar to respond to this momentous piece of scholarship on marriage, Yoshino clearly chose not to address arguments he takes for granted as settled.
Robert P. George, Sherif Girgis, and Ryan Anderson—the article’s authors—defended their arguments today at Public Discourse, reasoning that their piece both addressed Yoshino’s concerns and made what is thus far an unrefuted case for the conjugal view of marriage.
Indeed, Yoshino’s posting brings to mind points developed in a recent paper by Yoshino’s colleague at NYU, Professor Jeremy Waldron—one of the world’s most eminent legal philosophers. Waldron observes that it “infuriat[es]” many of his fellow liberals that some intellectuals remain determined, in Waldron’s words, “to actually argue on matters that many secular liberals think should be beyond argument, matters that we think should be determined by shared sentiment or conviction.” In particular, Waldron laments, “many who are convinced by the gay rights position are upset” that others “refuse to take the liberal position for granted.”
The central argument of our article is that equality and justice are indeed crucial to the debate over civil marriage law, but that to settle it—to determine what equality and justice demand—one must answer the question: what is marriage? So this is what the debate is ultimately about. In making our case for conjugal marriage, we consider the nature of human embodiedness; how this makes comprehensive interpersonal union sealed in conjugal acts possible; and how such union and its intrinsic connection to children give marriage its distinctive norms of monogamy, exclusivity, and permanence.
We also show that those who would redefine civil marriage, to eliminate sexual complementarity as an essential element, can give no principled account of why marriage should be (1) a sexual partnership as opposed to a partnership distinguished by exclusivity with respect to other activities (including non-sexual relationships, as between cohabiting adult brothers); or (2) an exclusive union of only two persons (rather than three or more in a polyamorous arrangement). Nor can they give robust reasons for making marriage (3) a legally recognized and regulated relationship in the first place (since, after all, we don’t legally recognize or closely regulate most other forms of friendships).We were explicit in framing these as challenges to proponents of gay civil marriage. And if anyone is capable of meeting them, surely it is Professor Yoshino. So his decision to pass over those challenges in perfect silence confirms and reinforces our belief (also amply defended in our article) that only the conjugal view can answer them.
December 17th, 2010 | 3:28 pm
Why does this have to be so difficult?
Dear Prof. Yoshino et al,
What is marriage?
Can you answer that question?
December 17th, 2010 | 4:16 pm
As someone who supports gay marriage, I confess to having found Prof. Yoshino’s response alarmingly inept.
I’d like to at least sketch what I think is a much better line of response.
Starting with George et al.’s positive case for “Conjugal Marriage”, I think the most glaring problem here is that what they call the “revisionist” understanding of marriage is in fact the de facto—and up to a point de jure—status quo. What I mean is that we have, both legally and in terms of social mores, largely separated sex, marriage and procreation already. Gay marriage is the logical entailment of marriage as currently understood, not a redefinition of it.
If we start from this assumption, the very nature of the gay marriage debate dramatically different. Pace George et al. the issue is not one of redefining marriage but one of equitable treatment under the law as currently understood and applied. From this perspective much of what George et al. argue is simply beside the point—less an argument against gay marriage than a call for a whole scale restoration of an understanding of marriage that has already been largely abandoned by heterosexuals. If in fact they have correctly identified the ‘true’ nature of marriage, George et al. have considerably larger things to worry about than gay marriage.
Secondly, in attempting to put procreative sex at the core of marriage they risk reducing the latter to a public commitment of sexual exclusivity between a man and a woman open to parenthood. Though they acknowledge marriage is more than that–there is the love and cherish to death do us part business–George et al. seemingly forget all that when challenging “revisionists” to justify limiting marriage to monogamous, romantic relationships. If marriage additionally involves a “sharing of lives and resources, and a union of minds and wills”, love that is expressed sexually, and sexual exclusivity, it is easy enough for “revisionists” to argue there are enough commonalities between committed gay and committed heterosexual unions to distinguish both from mere friendships, sibling relations, polyamorous relations, and so on.
December 17th, 2010 | 7:24 pm
tristian,
your first point is incisive. as for your second point, one of the best parts of george’s paper is the discussion on body-soul union and its implications.
revisit that section and you’ll realize that george et al defend a specific definition of “sexual love,” a definition they — and i — consider indispensable to “real marriage.”
indeed, the authors would probably posit that there is no such thing as “gay sexual union” — i.e. gay sexual acts are by their very nature not “unitive” acts.
December 18th, 2010 | 2:18 am
“Gay marriage is the logical entailment of marriage as currently understood, not a redefinition of it. ”
Not really. Otherwise, why all the arguing about it? You assume too much.
I particularly like number three. There is no compelling reason for the State to license homosexual relationships. In fact, other than the desire to be accepted, I can’t understand why homosexuals even care. What compelling reason does the State even have in licensing such things?
Of course, few proponents of gay marriage ever want to honestly address point two. The logic of the gay marriage position naturally leads to the cries for equality by all sorts of other even more “transgressive” groups who also yearn to be free…so they too can be regulated by the government. Odd.
In the world there are horses, donkeys, and mules. Each of them are good for different things, and only a fool would pretend they were the same animal, or served the same function.
It really isn’t that hard.
December 18th, 2010 | 6:12 am
Tristian
I believe you are wrong on the present legal and secular understanding of marriage.
The great French jurist and author of the leading commentary on the Code Civil, le doyen Jean Carbonnier did raise the question: “What is the state’s interest in marriage? Why does marriage exist, as a legal institution What is the unique legal rôle of marriage?”
Carbonnier’s analysis had to address the differences between the two legal régimes of marriage on the one hand and civil unions (PACS) for same-sex and opposite-sex couples on the other (as well as unregulated cohabitation) and to extract a principle from them.
His conclusion: « le cœur du mariage, ce n’est pas le couple, c’est la présomption de paternité » [“The heart of marriage is not the couple, but the presumption of paternity.”] This is based on Article 312 of the Code Civil: « L’enfant conçu ou né pendant le mariage a pour père le mari.» (“The child conceived or born during the marriage has the husband for father”)
To summarise his conclusions: (1) Mandatory civil marriage, makes the institution a pillar of the secular Republic, standing clear of the religious sacrament (2) The institution of republican marriage is inconceivable, absent the idea of filiation, enshrined, not in Church dogma, but in the Civil Code (3) The sex difference is central to filiation..
In other words, the institution of marriage entails consequences with respect to filiation that the other forms of union do not. Moreover, this leading jurist could find no other significant difference at all, in the laws governing cohabitation and civil unions on the one hand and marriage on the other, that does not logically derive from this presumption and no-one, to my knowledge, has been able to suggest an alternative reading of the legal texts themselves.
In addressing the question of same-sex marriage, the Court of Appeal in the Bègles case in 2004/5 confirmed this interpretation, finding that its “specific and non-discriminatory character was the result of the fact that nature had limited potential fertility to couples of different sexes… Clearly, same-sex couples whom nature had not made potentially fertile were consequently not concerned by the institution of marriage. This was differential legal treatment because their situation was not analogous” and that consequently, the celebration that was declared null “cannot be considered a marriage”
No-one will deny that the state has a clear interest in the filiation of children being clear, certain and incontestable. It is central to its concern for the upbringing and welfare of the child, for protecting rights and enforcing obligations between family members and to the orderly succession to property. To date, no better, simpler, less intrusive means than marriage have been found for ensuring, as far as possible, that the legal, biological and social realities of paternity coincide. And that is no small thing.
It is significant that, in a country so committed to the principle of laïcité as France, no one has suggested that Carbonnier’s views, or those of the Court of Appeal, are either the result of religious convictions or an attempt to import them into his interpretation of the Code.
December 18th, 2010 | 9:15 am
Tristan,
I want to second Max’s point and add just a little.
The separation of marriage from procreation is the core of the gay marriage fight. Therefore, the nation’s illegitimacy rate seems like the proper barometer to examine where marriage is at nationally. In the 1950′s I think less than 5% of children were born illegitimate. Today, that figure is 40%, meaning that 60% are born to married, natural parents.
To suggest that 60% of the population represents some archaic, bygone era while 40% represents the current state of affairs does, as Max says, seem to assume too much.
But looking at the 5-to-40% trajectory, perhaps you feel we should realize that 40% will soon be 70% or maybe even 90%, and therefore the nation should realize that the near total separation of marriage from procreation (i.e. gay marriage) is an inevitable outcome. As such, the rest of us should just get with the program. But if that’s your argument, you don’t need to convince us of where things are going in 20 or 30 years, you need to explain why the growth in illegitimacy is a good thing, because if it is not a good thing, then shouldn’t we be doing something to stop it?
I seem to remember reading somewhere over the past year that the illegitimacy rate for black Americans in the 1950′s was lower than that for white Americans. It now stands at 70%. I think that experience would provide a good case history for you to argue as to why or why not Americans should continue moving towards the separation of marriage and procreation.
December 18th, 2010 | 9:19 am
Since it seems that procreation is no longer a necessary reason for marriage I had wondered how long before sex at all would be a prerequisite, at least in the non academic world. I posed the following question to several people; If two people of the same sex request marriage do they have to prove that they are homosexuals. I guessed that they would not since i can’t imagine what the proof would be. I mean if for what ever reason two brothers decided that it was to their benefit to marry who could stop them and why. The list of possible non sexual unions that theoreticly could request marriage for any number of reasons is quite long. So if marriage can now encompass this endless list of reasons to be it begs the question what is marriage? So as I now see it marriage is not about procreation or sex or any thing in particular. Yet some/many say whats the big deal and with the proliferation of cohabitation, particularly among the young, apparently it’s not a big deal. Idiots.
December 18th, 2010 | 12:18 pm
A couple of clarifications.
My claim is not that what George et al. call the revisionist understanding of marriage has been explicitly enshrined in law, but rather that it is the de facto and to a large extent the de jure reality. By this I mean that in fact there is little left of the traditional web of stigmas, social pressures, and laws that put real and significant pressure on people to save sex for marriage, avoid childbearing out of wedlock, have children if physically capable, raise the children in a single household, and so on. For example, we now tolerate cohabitation, premarital sex and divorce, there is no social or legal cost attached to bastardy, and the law recognizes fewer differences between wed and unwed fathers in terms of legal rights and obligations so long as he acting like a father. Hence a claim like Carbonnier’s is normative, not descriptive.
The problem with George et al.’ understanding of sexual love is that it assumes the sole natural end of human sexuality is procreation and that this and this alone is the only good of sex that should carry legal weight. Now, I doubt they truly believe human sexuality is nothing more a way to make babies, and indeed they say as much. But by acknowledging other goods they undermine their central claim to the extent that these other goods can be found in gay relationships. To simply stipulate that they can’t won’t do.
Lastly, I am not suggesting the Conjugal understanding of marriage can only be motivated by religion.
December 18th, 2010 | 1:15 pm
About the baseball analogy, shouldn’t one rather say a sports team is oriented to competition, rather than to winning? Naturally winning is ideal, but it’s not the orientation of sports, strictly speaking. Competition–the pursuit of excellence–is.
December 18th, 2010 | 4:47 pm
Douglas,
It’s my point that the changes you catalogue have come about because of changes in how we think about sex, marriage, and parenthood largely embraced by the culture as a whole. They are not going to caused by gay marriage–they’re already here. If single parenthood and childbirth out wedlock are the problem, the response has to be laws and values that change the behavior of *parents*. Making gays bear the burden of lousy parenting is going to be as ineffectual as it is unfair.
Secondly, we need to evaluate the fairness of denying recognition to gay marriage by looking at our current legal and social reality, not by looking at an ideal that no longer constrains the behavior of those whose marriages are recognized. Until that ideal burdens straights couples it is hardly fair to use it against gays.
Lastly, that 60% of parents choose to be married shows only that. It doesn’t show they embrace George et al.’s Conjugal understanding of marriage.
December 18th, 2010 | 6:07 pm
[...] Why Taking Marriage for Granted Fails – Kevin Staley-Joyce, First Thoughts [...]
December 18th, 2010 | 6:19 pm
Tristan,
First off, I appreciate your reasoned response. I have witnessed few conversations on this matter that don’t redound to the accusation that supporters of marriage are somehow unwitting racists.
I’m not sure, however, where you see fairness entering into any of this. Marriage, barring redefinition by the state, has no more to do with homosexual relationships than it does relationships between friends. Thirty years ago, the idea of gay marriage hadn’t even occurred to homosexuals. Who knows, a movement might start up next week demanding that all men henceforth be known as “women.” Will it then be suddenly be unfair that I can’t call myself a “woman”?
Regardless, you argue that the state should redefine marriage because many married people aren’t constraining their behavior to a properly constrained ideal.
You are obviously correct that many, many married couples have made horrible parents and have behaved horribly toward one another. But I’m not sure why we would make the existence of bad behavior (which has always been with us) the basis to end marriage as we know it. Why would we want to chart our course using bad marriages as our sextant? Why would the collapse of the family inform us that we should now teach future generations, by force of law, to sever any connection in their minds between procreation and what it means to be married?
December 18th, 2010 | 11:06 pm
Tristan:
the logical conclusion of your argument is that civil marriage should be abolished altogether.
The dominant idea of marriage is so empty (marriage as some state recognition of a romantic relationship. Why on earth do we need that?) that enshrining it in law (as you suggest) will just bring into full light its meaninglessness. This is the curse of the gay marriage movement: once they obtain what they want, it will be utterly dead.
December 19th, 2010 | 5:56 am
Tristian
Thank you for your thoughtful comments.
Carbonnier was, I believe, the first jurist seriously to address the difference between marriage, on the one hand and a PACS (Pacte Civil de Solidarité) on the other. Given that opposite-sex couples now have a choice between two legal regimes for regulating their affairs (as well as unregulated cohabitation, which is not without legal consequences) the difference between them will increasing force itself on the attention of politicians and the public. Based on my own reading, United States jurists are about ten years behind their European counterparts in addressing this.
Curiously, one option which is not open to opposite-sex couples is a purely religious “marriage” without civil consequences, or a religious “marriage” coupled with a PACS ; these constitute crimes under Article 433-21 of the Code Pénal, so mandatory civil marriage remains an important feature of the state’s policy.
As Ms. Frédérique Granet-Lambrechts, professor at the Robert Schuman University of Strasbourg has pointed out, the presumption of paternity, “is est pater quem nuptiae demonstrant,” has been adopted as part of the code of all European countries. André Burguière, editor and one of the authors of the monumental four-volume “A History of the Family,” has gone so far as to describe it as “the anthropological constant.”
Now, the family is increasingly centred on the child. In the face of changes in family life and conjugal relations in particular, the child appears to be the only enduring reality. Whereas in the past, marriage was the prerequisite for the formation of a family, today the prerequisite is essentially the presence of children. “Studies show that when a member of a family lives with a partner outside marriage, that person is considered to belong to the family only from the birth of a child on.” (Martine Segalen) In the increasingly frequent absence of marriage, therefore, it is indeed the child that makes the family. In fact, by making the relationship between his/her parents irreversible, the child brings each of them into the other’s family, something a childless common-law relationship does not necessarily do. The couple based on
love and equality between the sexes is not institutionalized, but the birth of a
child brings about a reinstitutionalization. Filiation is recorded in the civil
register, whether the couple is married or not. This has important implications for same-sex marriage, including the norms for adoption and assisted reproduction.
December 20th, 2010 | 7:05 am
The current reality of life is that thousands upon thousands of children are abandoned by their heterosexual, biological parents. Very often, gay couples are willing to raise these children. It also happens that these children are often minorities or have special needs and are difficult to place in your more “desirable” households.
It’s also a fact that people don’t marry simply to bear children. The elderly and infertile marry, as do those who have no intention of raising children. The State has never denied these couples licenses.
Studies have shown that children fare about as well in same-gender, two-parent households as they do in opposite-gender households, sometimes better. Boys raised by two women are less likely to be promiscuous later in life.
Many of the statements I’m reading are divorced from any recognition of these realities of life.
December 20th, 2010 | 10:42 am
Tristian, I too appreciate your reasoned discourse on a subject that is frought with emotion on both sides. I do agree that the primary responsibility for the sorry state of marriage in our age can most surely be placed at the feet of heterosexuals. However much of this can be explained, at least to my satisfaction, by the culture eruptions of the 60′s and 70′s, which continue to this day. Much of this disruption centered around supposedly newfound understandings about sex and sexuality. These ideas had been percolating for years, hundreds perhaps, in the star chambers of academia and the literati. Having come of age in the 60′s I can attest that while there were serious voices, wrong but serious, the vast majority of those I knew or knew of were simply oppurtunists or innocents bereft of any compelling reason to resist the zeitgist. Many of these people grew to maturity having never engaged a fully informed counter perspective. Out of this maelstrum of confusion, which somehow was taken as a serious challenge to the more or less settled understanding of sex and marriage, came a whole raft of half baked ideas masquerading as clarion calls hailing the new reality under the guise of freedom and liberty unconstrained by the moralistic myopia of the past and its’ keepers. So marching forward under this new banner they, well looked around and found that the banner had fallen and most people did not even notice the barriers under their feet as they moved into lives whose parameters were utterly changed. Without this seachange in our culture regarding sex, sexuality and authority the homosexual movement would have been dead on arrival. So rather than advances in our understanding of human sexuality it was and is confusion that underpins the emergence of an increasingly aggresive homosexual movement.So it comes down to this;so while the push for homosexual marriage is underpinned with noble sounding and in some cases reasonable arguments and positions, they play against a backdrop of cultural confusion which they alone have escaped as indicated by the surety and condescention of their pronouncements.
December 20th, 2010 | 12:00 pm
James wrote “Studies have shown that children fare about as well in same-gender, two-parent households as they do in opposite-gender households, sometimes better.”
As eminent child psychiatrists and psychoanalysts like Prof Pierre Lévy-Soussan and pediatricians like Edwige Antier have pointed out, empirical studies must be treated with reserve, when they conflict with more than a century of well-founded psychoanalytical theory and clinical practice.
December 20th, 2010 | 4:13 pm
tristian,
i might be wrong, but to paraphrase george et al, at least one of the sine qua non of “real marriage” is “penis + vagina” leading to “union” and possible/actual “procreation.”
if the authors are right, who cares about other “common goods” shared between (1) heterosexual marriages and (2) gay relationships? given the plain meaning of “sine qua non,” no number of “common goods” — real as they are — would constitute enough logical reason to conclude that (1)=(2).
to redefine “real marriage” is, in effect, to posit that (1)=(2). but ontologically different things are, well, different. such is reality.
December 20th, 2010 | 5:19 pm
I appreciate the thoughtful and stimulating responses to my comments. Obviously there’s a lot for all of us to consider. If I could, I’d like to offer a couple of final comments and clarifications.
I am less interested in endorsing the current status quo (as I see it) regarding marriage as I am in establishing that it is the status quo. If it is, then for better or worse that is the legal and cultural reality in which the question of gay marriage must be answered.
Secondly, on the question as to whether or not the status quo as I see it is good or bad, that I think is complicated and my considered answer is I’m not sure, all things considered. One point that I would press is that the complex of laws and social mores that historically kept sex, marriage, and procreation intertwined in practice were often cruel. We should be hesitant to want to put things back together by going back to shot gun weddings, laws that punished illegitimate children for the crimes of their parents, divorce laws that kept women in abusive marriages, and so on. I think those who defend the Conjugal approach and want to see it enshrined in law owes us an explanation as to how exactly they would do this beyond limiting marriage to men and women. That is clearly insufficient.
Thirdly, I think the question as to whether the logic of what I see as the status quo leads to the dissolution of marriage altogether is also complicated. It might be that a modern liberal democracy designed from scratch–one with no history, specific religious and cultural heritage, or common traditions–could do without a legal institution of marriage. Of course there are no such places. Questions of marriage take place within specific cultural settings that in fact do continue to have and place great importance on such an institution, and I frankly see no signs that it will disappear, or that significant portions of the population want it to. Again, I would urge we look at the question of gay marriage with an eye to actual realities, rather than in an overly abstract way.
Finally, my point about the other goods of marriage was this. Even if we grant that procreative sex is essential to true marriage, it does not follow that it has no other goods that distinguish it from other affective, sexual relationships. If gay relationships share in those other goods, this provides a basis for answering George et al.’s challenge as to how monogamous gay relationships can be distinguished from fraternal or polyamorous relationships.
December 20th, 2010 | 5:44 pm
Tristian
Your basic point about marriage and procreation might be correct if procreation is properly considered to be a sine qua non–or essential condition–of marriage. But the outlook for your viewpoint is dismally different if marriage is rightly regarded as the raison d`etre–the reason for the existence–of marriage. The difference can also be stated by insisting that marriage doesn’t IMPLY procreation, strictly speaking, but does PRESUPPOSE procreation, with the latter formulation taken to mean that the institution of marriage presupposes the general fact of procreation.
It’s all too easy to caricature something so taken-for-granted as is traditional marriage, but no one should be surprised to find hidden resources, including philosophical resources, in an institution that (as G.K. Chesterton said of the Catholic Church) is “wild and reeling but erect”–basically sound, despite all the abuses that autonomy-mythologizing heterosexuals have subjected it to in recent decades.
December 20th, 2010 | 5:50 pm
Correction: “. . . if procreation is rightly regarded as the raison d`etre of marriage.”
December 21st, 2010 | 5:38 pm
Prof. Robert P. George says that marriage has only one legitimate or useful purpose: providing a stable environment for the rearing of couples’ biological children. He uses the “baseball analogy” to justify extending marriage licenses to heterosexual couples who are incapable of procreation by reason of age or disability.
However, I think that there are better analogies. Ovens have a very simple primary purpose: heating food. If someone turns on an oven without putting food into it, then many would say that that person is wasting electricity. But if the house’s central heating system breaks down, then turning on the oven might fulfill a secondary purpose: keeping people warm during a cold winter’s night.
It seems to me that our society has *multiple* reasons to value long-term committed relationships relationships. Couples in stable relationships are more likely to do a better job raising adopted children — and there are plenty of same-sex couples who have adopted children. Couples in stable relationships look after each other in old age, reducing burdens on the state — and there are plenty of same-sex couples who are aging.
One can therefore *partially* agree with Prof. George’s main thesis, and yet conclude that marriage should be extended to same-sex couples.
December 23rd, 2010 | 1:12 pm
Tristian has two basic arguments. His procreation argument is that procreation is not an inherently important or necessary aspect of marriage. His well-being argument (as it might be called) is that same-sex couples will greatly benefit as persons from civil marriage. I have already said a little bit about the first argument (including my comments to this post’s companion piece). But I should add that the crucial thing about the ideal capacity to procreate is that it not be ad hoc. I believe it clearly is not. The ideal capacity to procreate is a *ceteris paribus* natural capacity—if the aged were young again, and the sterile had a normally functioning reproductive system, both of them would be able to procreate. Nothing ad hoc about that—just an acknowledgment of experience as we have always known it.
The well-being argument for same-sex marriage assumes that there are no good reasons to regard homosexual behavior as immoral or abnormal. In my view, this is not a safe assumption. One approach to explaining why not (it’s my own invention) involves a Texas Two-Step. First, ask whether there is such a thing as paradigmatic sexual intercourse. The answer is yes—it happens to be the kind in which babies are made. Then, ask whether a particular sexual act bears a family resemblance to paradigmatic sexual intercourse. Without going into details (they’re X-rated), I will just say that homosexual sex acts do not seem to me to bear a family resemblance to paradigmatic sexual intercourse. If I’m right about that, then the well-being argument for same-sex marriage fails. Even if that argument were to succeed, however, Tristian would still need to make good on the procreation front. Alas, the idea that marriage presupposes procreation shows that the proponents of same-sex marriage are overconfident on that score.
Both steps rely on the proper function of the bodily organs, and in both assume that function statements are both descriptive and prescriptive, e.g., the function of a clock (what it both properly does and should do) is to tell the time. (A peripheral function of clocks is serving as bookends, but the core function—the REAL function—is what counts.) It’s abnormal to use a clock to paddle a boat, just as it’s abnormal to put the male organ in a rectum. There are reasons, too complicated to go into in a blog comment, why the latter but not the former is not just (ordinarily) stupid but morally blighted and presumptively reprehensible.
December 23rd, 2010 | 2:29 pm
ken z,
a more explicitly theological version of the texas two-step can be found in al wolters’ “creation regained.”
i think you’re right — a penis does not belong in the rectum, nor does ejaculate belong on the floor inside a used condom…. these are, using your two-step, normative claims.
but as an eye doctor, i fire lasers into people’s eyes in order to destroy areas of healthy retina as treatment for proliferative diabetic retinopathy. is there a paradigm associated with this treatment? do lasers belong in eyes at all? it seems in such instances the ends justify the means…. or do they?
more broadly, are there limits to the application of the texas two-step?
December 24th, 2010 | 11:53 am
Ken Z, I do not deny that procreation is an inherent part of marriage. What I’m arguing is that a) that it is is not central to our current legal and cultural understanding of marriage and b) it is not the only significant good of marriage. Together these tell us that procreation is not the appropriate basis for comparing heterosexual and homosexual relationships with any to their suitability for marriage.
December 27th, 2010 | 6:28 pm
Andrew–
You imply that I am stuck with the naturalistic fallacy. I am not, since function statements (which apply to both steps of the Texas Two-Step) are descriptive AND prescriptive—both. Nor do I think there’s anything unnatural about your work as an eye doctor, as you describe that work. Bodily health is a good in its own right, justifying some (not all) means to the end of bodily health. As for the limits of my approach, the Texas Two-Step applies only to certain questions of human sexual morality—it’s not a general theory about the moral use of “paradigmatic” behaviors. I happily note that you, working in a field where pragmatism is prized, do not dispute the idea of a family-resemblance approach. I thought it would raise some hackles, or is bound to raise some hackles, including by the new natural lawyers.
Tristian–
But SHOULD procreation be central to our understanding of marriage? Aside from that, have we really left procreation behind as to the meaning of marriage? Contraception (often cited as a counterexample to procreationist marriage by same-sex marriage cheerleaders) *assumes* the possibility of procreation, and can’t be said to leave procreation behind (certainly not procreation as an *idea* internal to marriage). Heterosexual couples who don’t want to have kids and are happily married? What does that prove? They still have a *capacity* to procreate. Then there’s Turner v. Safley (which conservatives are foolishly leaving out of the discussion). The Supreme Court holds that prisoners have a fundamental right to marry even though, having no right of conjugal visitation (for reasons of public policy), they are unable to consummate their marriage–procreation is not a possibility for them. Prisoners have a *capacity* to procreate, so the precedent of Turner v. Safley is not a problem for defenders of traditional marriage. I am aware of no legitimate counterexamples to the thesis that–both on pain of incoherence and in real life–marriage presupposes procreation.
St. Augustine would strongly agree with you that procreation is not the only significant good of marriage—he’s, ah, famous for that. But he would agree with me that the institution of marriage without the fact of procreation is nonsensical. The question, it seems to me, is whether the good in question is inherently a part of marriage as apposed to a lesser form of relationship. Analytically, the good of procreation translates (in a world of physically and morally flawed individuals) into the *capacity* to procreate, which I believe can be an ideal as well an actual capacity.
December 30th, 2010 | 4:05 pm
It’s all about the right to procreate offspring together. It doesn’t matter if a couple is able to or wants to, it only matters that they be allowed to. Thus, siblings are not allowed to marry even though they certainly can procreate. And infertile couples are allowed to marry even thought they cannot.
We should not give the right to procreate to same-sex couples. It would be unethical and expensive and use energy, and there is no need or right to do so. Prudence calls for prohibiting creating people using modified gametes or any other way other than joining a man and a woman’s unmodified gametes. That is the basis of our belief in equality.
Links
Blogs
Find Us
Contact