“What Is Marriage?” Robert P. George, Ryan Anderson, and Sherif Girgis’ recent article on marriage in the Harvard Journal of Law and Public Policy, has generated something of a discourse among scholars of opposing views, even being called a “succinct and clear exposition” by one prominent same-sex marriage advocate.
That advocate, Northwestern Law Professor Andrew Koppelman, offered a measured critique of George, Anderson, and Girgis, but most importantly, as the trio wrote, embraced the “less politically palatable implications of rejecting our position,” discarding the marital norms of monogamy, exclusivity, and permanence. Barry Deutsch of FamilyScholars also responded, somewhat less seriously, but seemed not to grasp the central thesis of “What Is Marriage?”, even taking the sadly usual (but decidedly unscholarly) tack of questioning the good faith of the article’s authors.
George, Anderson, and Girgis’ most recent response is to NYU Law Professor Kenji Yoshino, the first prominent voice to respond to “What Is Marriage?”, but also the least forthright. Twice now, in Slate, Yoshino has reframed and simplified the George-Anderson-Girgis argument to suppose a reductio ad absurdum. In their response, the three colleagues point out, among other concerns, Yoshino’s insistence that they get marriage wrong, despite his persistent refusal to identify what marriage is:
Our first reply challenged Yoshino to explain his own view of marriage, such that two men or two women could form what is truly a marital relationship. Yoshino: “I thought the answer would be intuitive: I want . . . marriage to widen to permit same-sex couples to enter it.”
Translation: Yoshino wants marriage to be whatever it must be such that two men or two women could truly marry.
But this is to dodge the crucial—and ultimately unavoidable—question: what is marriage? We had hoped Yoshino would offer what we had offered: a holistic defense of a view of marriage that accounts for marital norms that he wishes to retain, assuming that there are some (e.g., monogamy and sexual exclusivity).
But Yoshino sees his ad-hoc, results-oriented approach as a virtue of his view because, he says, proponents of “trans-historical . . . definitions of marriage have often been time’s fools.” Since “we do not stand at the end of history today,”
Yoshino thinks that “only time will reveal” what the moral ideals of “liberty, equality, and justice” require of our marriage law.
We reject this idea of history as a quasi-divine judge. We doubt that Yoshino himself believes that each generation is necessarily more enlightened than the previous one. Such a belief would play into the conservative caricature of progressivism’s alleged faith in the inevitability of moral progress.
In any event, it is demonstrably false. Nor can the passage of time as such reveal new principles of justice or equality. History tells us what has happened, not what should happen.
Though it might help us predict a policy’s effects on certain human goods, it cannot give us principles for evaluating those effects, or for determining the structure of those goods. But what we sought from Yoshino was his view of the normative structure (the defining norms) of the human good of marriage.
Yoshino titled his first rejoinder “The Best Argument Against Gay Marriage, and Why It Fails.” If the best arguments for gay marriage amount to what he’s written, what’s at stake is not mere argumentative failure, but the notion of Yoshino’s—and the movement to redefine marriage more broadly—that no arguments are necessary.
January 4th, 2011 | 11:56 am
Conjugal marriage leads to gender integrated homes (male/female). Same Sex marriage leads to gender segregated homes (male/male or female/female). SSM homes deprive a child of either a father or a mother.
It is upon these obvious ‘rocks’ of facts that the SSM argument runs aground.
January 4th, 2011 | 12:39 pm
There is no argument for gay marriage, and there will never be an argument for gay marriage. This is because its proponents reject that idea that there is real definition to marriage to begin with. They conclude that this is enough to permit gay marriage. There, I have summarized the entire debate.
January 4th, 2011 | 12:41 pm
We don’t like to think that intelligent, informed, and kindly people are capable of such circular (or perhaps merely evasive) logic as Yoshino’s. He wishes to criticise all other definitions of marriage, but dares not offer one, nor even a partial one, himself. Heck, any of us talented amateurs could do that.
He does have a definition, but seems unwilling to…what? To admit it, to think it through, to examine his own thought? I can’t tell from here. He seems to be pretty confident where the definition of marriage is going to go in the future, and seems happy with that. Then why not say so, giving reasons.
January 4th, 2011 | 12:42 pm
There are a couple hundred Catholic universities and colleges in this country. Why does it fall to two Catholic graduate students to mount an energetic public defense of marriage? Why is there basically not a single word of help from the Catholic academy?
January 4th, 2011 | 3:26 pm
The only arguments against same sex marriage tend to spawn from religious beliefs (not facts). Gerry, a single mother with a daughter or a single father with 2 sons both constitute a same gender houshold, right? Other than religious reasons, there does not appear to be any RATIONAL argument against same sex marriage.
January 4th, 2011 | 3:47 pm
Kevin,
You didn’t read the paper did you? Unless you can rebut the actual (read: rational) arguments that were laid out in the paper you shouldn’t expect your comment to be taken seriously.
January 4th, 2011 | 3:54 pm
“Why is there basically not a single word of help from the Catholic academy?”
The present function of Catholic higher ed is to create upwardly mobile Catholics. Traditional views on marriage are impediments to upward mobility.
It also doesn’t help that Catholic schools have been co-opted by anti-discrimination puritans.
Fewer than half the freshmen at my local Jesuit college express a religious preference, and of those fewer than 70% are Catholic. Who knows what the faculty makeup is.
The institutional power of Catholicism just isn’t there anymore, and hasn’t been there for some time.
January 4th, 2011 | 5:59 pm
Kevin wrote:
“Gerry, a single mother with a daughter or a single father with 2 sons both constitute a same gender household, right?”
They do and suffer from the same deficiency as SSM, they create households where either the mother or the father is absent.
You do believe the mother/child father/child relationship is vital to a child- Yes? No?
You realize you didn’t dispute or refute my factual citing of the outcome of Same Sex marriage, you just wrote of another relationship that creates same gendered households.
Given that you acknowledge the truthfulness of my statement, how can you then declare there are NO rational arguments. You know just because YOU don’t think there any rational arguments (because you a priori reject all rational arguments that oppose your position) doesn’t mean there are No rational arguments.
January 4th, 2011 | 6:03 pm
@Fr. Kev Kevin, SJ: Those are excellent questions. I also wonder how many Catholic universities will end up refusing to hire (or even interview) either of the grad students you mention for fear that doing so would invite criticism from the liberal establishment.
January 4th, 2011 | 6:38 pm
Kevin,
I’m going to quote a letter from “The Sun”, April 2009. Your analysis would be appreciated.
“I was thirty year old, lonely and struggling financially, trying to recover from an abusive failed marriage…I had resigned myself to being a single parent when I met Frank. He was the sort of honorable man I almost didn’t believe still existed. We fell in love and began making plans for the future. At one point I literally got down on my knees and thanked God for bringing Frank into my life.
Not long after that, Frank was in a motorcycle accident and broke his neck. The diagnosis was permanent paralysis from the shoulders down with no hope of improvement.
…
When I considered the future we would face together, I was terrified. Sitting in my car in the hospital parking lot with tears rolling down my cheeks, I cried out to God for help. I desperately loved this man but wondered whether I could accept this responsibility. Who would take care of me?
A voice in my head, so clear it was nearly audible, said, He need you. Then, I will take care of you.
That was more then eighteen years ago. Frank and I are still together and he is still paralyzed. In spite of the wheelchair, he is the same honorable man I fell in love with. I’m grateful I listened to God in my car that day, when my faith overcame my fear.”
January 4th, 2011 | 7:21 pm
There is no such thing as “homosexual marriage”. There is simply a malicious desire on the part of some homosexuals to assert a phoney equality with real marriage.
There is no such thing as the “right to abortion.” There is simply a shameful desire on the part of some women to to assert their total contempt for men and for family.
There is no such thing as a “hate crime.” There is simply, under law, a criminal act and the intent to commit the criminal act.
I could go on. We are living in a fantasy world.
January 4th, 2011 | 7:35 pm
The machine, that churns out a million dead babies (images and likenesses of God) in the US a year, has enslaved the Catholic Church. It makes a show of this openly, triumphing over us in it. Most spectacularly Fr Jenkins inviting the Obamanation of Desolation to speak at Our Lady’s university! The man who would not vote against partial birth abortion, who would rather his grandchild destroyed rather than inconvenience his family.
The ND 88 who peacefully protested this disgrace are still facing criminal charges to this day! Each faces up to a year in prison and a fine of $5,000. Marana tha!
How can we expect then outcry at the wicked injustice of male/male female/female marriage from Catholic universities? The same ‘catholics’ who voted for Pres. B.O. in the first place and who lift up enablers like Doug Kmiec and Cathleen Kaveny.
January 4th, 2011 | 7:51 pm
The Bible is clear on divorce and remarriage, yes?
Luke 16:18,Mark 10:11,Matthew 19:9
“Anyone who divorces his wife and marries another woman commits adultery, and the man who marries a divorced woman commits adultery.”
If what you say is true (that children thrive in a home with a mother and father), which is better: for the divorced mother to remarry another man despite the clear admonitions of Scripture or remain single and rear the children alone? It seems that in the situation, given reality as it is, the better option could conceivably be the former.
In reality, not everyone is heterosexual. Most efforts to make gays “change” fail miserably. So, gays can either remain celibate for life (an option almost no heterosexual willingly chooses) or at least attempt to live their lives in dedicated monogamy. Many have also brought into their homes children that have been abandoned by those “ideal” heterosexual, biological parents – sometimes these children are hard-to-place minorities or children with special needs.
To not see this as a viable option or to insist that these people are “not families” (not to mention that fact they are derided and insulted) is the height of arrogance and bigotry.
When I read the comments here, I have to wonder what universe everyone is living in.
January 4th, 2011 | 11:27 pm
“When I read the comments here, I have to wonder what universe everyone is living in.”
You need to get out more, or at least you need to read a few old books. Moralistic approbation of homosexuality is the oddity, despite its present and undeserved place in the U.S. establishment.
Most ROFTERs seem to be in the universe which recognizes homosexual acts (and unnatural acts between people of the opposite sex) as deeply corrupting behaviors which should not be encouraged or compared to genuine marital congress.
A homosexual who is a “dedicated monogamist” is in some ways more spiritually imperiled than the homosexual who succumbs to temptation but is under no illusions about his or her vice.
January 5th, 2011 | 1:11 am
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January 5th, 2011 | 3:10 am
Kevin writes “Other than religious reasons, there does not appear to be any RATIONAL argument against same sex marriage.”
There is a very obvious argument, that was advanced by the French jurist Carbonnier. He posed the question: “What is the state’s interest in marriage? Why does marriage exist, as a legal institution?”
To answer this question, he examined the Code itself and how it deals with cohabitation, PACS (civil unions, same-sex or opposite-sex) and marriage respectively.
His conclusion: [i]« le cœur du mariage, ce n’est pas le couple, c’est la présomption de paternité »[/i]. [“The heart of marriage is not the couple, but the presumption of paternity.”]
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.
If he is right, the legal concept of marriage is, in its nature, gender-specific, being solely concerned with the status of children and their parents.
In 2005, this view was given a ringing endorsement by the French Senate: “Preserving the presumption ” is est pater quem nuptiae demonstrant “, adopted in all European legislation as Ms. Frédérique Granet-Lambrechts, professor at the Robert Schuman University of Strasbourg, told your reporter, Article 312 of Civil Code provides that a child conceived or born during the marriage has the husband for its father.
The presumption of paternity of the husband rests on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple’s children. The report presenting the order to the President of the Republic rightly points out that ” it is, in the words of Dean Carbonnier, the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value.””
To summarise (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..
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 Senate, are either the result of religious convictions or an attempt to import them into the interpretation of the Code.
January 5th, 2011 | 3:44 am
I would only add that I believe it is a weakness of “What is Marriage,” that the learned authors fail to discuss marriage in the context of alternative régimes, like PACS (civil unions, same-sex or opposite-sex) and unregulated cohabitation and to bring out the difference between them.
January 5th, 2011 | 10:30 am
Comments that deny the existence of same-sex marriage are counter productive to the debate at hand and off-putting to anyone who would like to understand the position of Catholics.
I can understand Catholic objections to marriage outside the rules of the Church, but to deny that secular institutions have taken a very different route ignores a simple and clear reality. Clearly, there is such a thing as same-sex marriage, clearly there is a rationale for it. It happens that this rationale is very, very different from any that the Catholic church would use to describe marriage. Clearly, Catholics do not want to celebrate the sacrament of marriage for same-sex couples.
This is an instance in which Catholics need to become increasingly comfortable being very different from the secular world that surrounds them. Marriage in the US is a civil, secular institution; it also happens to be a religious sacrament. It’s unreasonable for Catholics to expect the world to change to accommodate their views. It’s much more reasonable to expect Catholics to be comfortable with the differences between their religious world view and that of the secular governments in which they live.
January 5th, 2011 | 10:46 am
>>Comments that deny the existence of same-sex marriage are counter productive.<<
This is Orwellian.
January 5th, 2011 | 11:10 am
Kev Kevin,
Your statement that there is no such thing as same-sex marriage attempts to create the very reality it purports to describe. But your statement fails because your world is limited to that described by Catholic teachings. That’s not the world we live in.
Description is not endorsement. The inability to describe the world as it is – even if only to articulate a different vision – is counter productive and off-putting. It makes you seem like you inhabit a planet different from the one the rest of us live on.
Catholics have long lived apart from the political worlds they inhabited. Same-sex couples have been marrying for better than five years in Spain and in much of Western Europe; it’s now the law in Mexico City and Argentina (and, potentially, in Chile if the Supreme Court so decides this week). This isn’t the end of Catholicism. It’s a call to be in the world in a different way.
Burying your head in the sand and imagining that change that runs counter to your beliefs can only be attributed to “malicious” people who don’t share your views doesn’t seem a very productive or promising path.
I can’t help but remark that you shouldn’t be surprised that people aren’t exactly piling onto this bandwagon – it appears to be driven by denial and paranoia.
January 5th, 2011 | 11:55 am
Patrick,
Our disagreements are quite fundamental, and have to do with classic philosophical arguments about universals.
I’m persuaded marriage has an essential definition and nature. It follows that there can no more be gay marriage than there can be married bachelors or square circles or self-aware vegetables.
January 5th, 2011 | 5:52 pm
James writes “So, gays can either remain celibate for life (an option almost no heterosexual willingly chooses)…”.
Ahem. There are priests and nuns who willingly choose to remain celibate for life. There are also homosexualists who do also, as Gore Vidal wrote, when asked to explain the 40 years of his cohabitation with his friend: “It’s simple. No sex”.
January 5th, 2011 | 7:00 pm
Michael PS,
I have been appreciating your thoughtful comments. By way of exploring them, I’d like to pose a few questions.
Suppose that we grant that “the state’s interest in marriage” is “the presumption of paternity of the husband,” i.e., the presumption “that a child conceived or born during the marriage has the husband for its father.” Let’s also grant that this “presumption of paternity” is an important interest–even in the present day in which technology has made accurate paternity tests possible (after all, probably the relevant notion of “parent” here isn’t biological but legal. That is, the legal parent needn’t be the biological parent, the state being merely interested in maintaining a presumption about who can be legally regarded as the parent).
Here, then, are my questions.
(1) How is this presumption in any way threatened by lifting the prohibition against SSM?
(2) Wouldn’t the state’s interest in the closely related presumption of parenthood be advanced by applying this presumption to same-sex couples who take the similar vows of fidelity and commitment entailed in “the celebration of marriage”? Consider the cases in which a lesbian couple wants to have a child, or in which a gay couple want to adopt.
(3) If the state’s interest in the presumption isn’t threatened by SSM (or, if it is actually advanced by SSM), then what is the state’s interest in prohibiting SSM?
(4) If the state doesn’t have an interest in prohibiting SSM, then why should SSM be prohibited by the state?
January 5th, 2011 | 10:03 pm
Patrick: We Catholics are not “uncomfortable” with “homosexual marriage”, nor are we burying our heads in the sand. I can assure you that most of us see things very clearly. We are simply telling the truth , namely that “homosexual marriage” is an absurdity. What homosexuals have is a friendship. The nature of that friendship, or the intimacy involved in the friendship, is a private matter. My feeling with regard to ALL private sexual matters is this: Don’t Ask Don’t Tell.
January 6th, 2011 | 3:39 am
JGY
Thank you for your observations.
To turn to your question, while it is true that it is now possible to determine biological paternity through DNA testing, fatherhood has, not only a biological, but a legal and a social meaning. The state, in its concern for the welfare of children, wishes paternity to be clear, certain and incontestable. The presumption of paternity arising from marriage is, I would submit, the simplest and least intrusive method of doing so.
It is worth noting that, in both Belgium and the Netherlands, the presumption does not apply to SSM, although it does in Spain. Hence, some jurists have argued that the two former countries have conceded the name, but not the reality of marriage to same-sex couples.
In the famous Bègles case, where a local mayor did marry a same-sex couple, the French courts, adopting Carbonnier’s view that the presumption of paternity constitutes “the heart of marriage,” upheld the exclusion of same-sex couples on the grounds that “Clearly, same-sex couples whom nature had not made potentially fertile are consequently not concerned by the institution of marriage [ne sont en conséquence pas concernés par cette institution]. This is differential legal treatment because their situation is not analogous.”
Of course, it does not concern opposite-sex infertile couples either, but to establish a screening process would be burdensome, expensive, intrusive and litigious, especially given current advances in reproductive medicine and assisted reproduction. Laws are enacted for the general case and anomalies are the price that legislators pay for simplicity and certainty.
The exclusion of SSM from a régime that the state regards as the founding of a family, is thus justified in principle and any hardship is ameliorated by the availability of a PACS (Civil Partnership), which is used by same-sex and opposite-sex couples in, more or less, equal numbers.
January 6th, 2011 | 2:03 pm
Michael,
Apart from the intrusiveness of singling out infertile couples, there’s also the very real fact that sometimes “infertile” couples do have children.
There is no way to determine and screen for which couples will be biologically incapable of bearing children, just as there is no way to determine and screen for which couples will fail at various other aspects of marriage (fidelity, loving and honoring the spouse, dealing with sickness, etc)
Childless couples – for whatever reason – are couples who are eligible for the benefits, but can’t, won’t, or don’t use them.
That is not the same thing as wanting to use the benefits, but not being eligible for them.
January 6th, 2011 | 2:24 pm
Apology for my poor wording which suggests that infertile couples have “failed” at some aspect of marriage.
This is not what I believe. It just “came out wrong”. My apologies if anyone was affected.
January 7th, 2011 | 12:31 am
“I can assure you that most of us see things very clearly. We are simply telling the truth , namely that “homosexual marriage” is an absurdity.”
I think you made my point for me.
It’s one thing to thoughtfully disagree with the views of others. It’s another thing entirely to pretend the world is as you’d like it to be, rather than as it is. Would you argue that abortion is not real? Would you tell me that no-fault divorce is a fiction? Of course not.
Marriage is a secular, civil institution. What the Catholic church does with the sacrament of marriage is its own business. To deny that the secular government might make different choices is delusional.
January 7th, 2011 | 1:08 am
Michael PS,
I can certainly see the sense in what you say:
However, I don’t see how you’ve addressed the questions I had put to you above. It’s not of course that I think you owe me a response; rather, I just want to make sure I’ve not missed anything.
January 7th, 2011 | 8:38 am
JGY
The presumption of paternity clearly has no role in SSM. It has no role to play in adoption, either, as the adoptor or adoptors are named in the decree. If applied to a lesbian couple, it would clearly be a legal fiction, a fiction that would derogate from Article 371-1 of the Code Civil, which vests parental authority in the father and mother of the child, whether married to each other or not.
That is the whole thrust of the Bègles case: republican marriage simply does not concern same-sex couples – it serves no function for them, or for the Republic. For this reason, the court held that “it could not be considered a marriage,” [« ne peut être considérée comme un mariage ».] within the meaning of the Code Civil. The state does not prohibit SSM; its understanding of marriage necessarily excludes it
On the other hand, same-sex couples have in the PACS a very flexible structure that can be tailored to their individual circumstances – One of the reasons that they are increasingly used by opposite-sex couples, too.
January 10th, 2011 | 2:17 pm
JGY–
Those are very good questions. I’m not sure they can be answered on the basis of “first principles of practical reason” *alone*–that is, apart from a philosophical understanding of ontology and essences, as Aristotle and Aquinas firmly believed but the “new natural lawyers assuredly do not. (See David S. Oderberg’s “The Metaphysical Foundations of Natural Law,” which is very critical of the NNLers, and add to your store of wisdom by reading Pope Benedict’s essay on natural law in the same volume. The curious, and those First Things readers who uncritically agree with the NNL philospher Robert George, may wish to ask themselves whether it is significant that the Pope has an essay in a 2010 volume published by the CUA Press in which Oderberg’s essay–which takes to task the NNL philosophy of Germaine Grisez and John Finnis–also appears.)
So we anti-SSMers need to think harder. I myself believe that a good rationale for the government’s refusal to recognize SSM is the conceptual-moral-metaphysical INCOHERENCE of SSM. I suspect that a good argument could be based on that to the effect that SSM offends justice. It obviously does not offend liberty or equality (although it is not, in my view, required by either of them). The problem with conservatives is that they are so hung up on “liberty” that they find themselves flatfooted in opposing the justice-claims for SSM. Lots of thinking is needed about all this. And then maybe someone will be able to answer your questions.
January 12th, 2011 | 4:23 am
In just now checking back, I am thrilled by the articulate responses.
Michael PS, while a presumption of “paternity” might not play a role in SSM, a closely analogous presumption of parenthood might–or at least so it seems to me. While you say that the state does not prohibit SSM, but rather by “its understanding of marriage necessarily excludes it,” I wonder if this is not a distinction without a difference. Is the state really compelled to maintain this understanding of marriage? I suppose you want to say “yes”–given its interest in the presumption of paternity. But surely there are ways for the state to maintain the presumption of paternity without maintaining this particular understanding of marriage. But perhaps I am getting things confused.
Ken Z.,
You’ve made me realize my ignorance about the controversies within natural law tradition. Thank you for giving me direction here.
Even if “the conceptual-moral-metaphysical incoherence of SSM” can be demonstrated by careful argument from “a philosophical understanding of ontology and essences,” well-informed and reasonable people are going to inevitably disagree with this demonstration–and, even if these who disagree are ultimately making some mistake, its not as if we can plausibly accuse them of simply being unreasonable. In that respect, grounding the government’s refusal to recognize SSM in the conceptual-moral-metaphysical incoherence of SSM will inevitably be a lot like grounding that refusal in a distinctively religious or ideological doctrine. As such, the justification of that refusal won’t be something we can reasonably expect others to accept–which alone might prove to be a decisive consideration against attempting any such strategy.
January 12th, 2011 | 6:23 pm
JGY–
I don’t agree with your conclusion wrt SSM, but I think you put the matter beautifully wrt reasonable disagreement. For several years now I have written about reasonable disagreement in the context of abortion and SSM for a certain “paleocon” journal, and the point I’ve made repeatedly is that this is exactly why the legislature, not the judiciary, should decide the SSM issue. What reasonable people disagree about, after all, is whether it is even comprehensible to think there is a right of same-sex couples to marry.
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