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.