The Best Gay Marriage Can Do?

” 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.