Constitutional scholar and lawyer Robert P. George recently presented an oral argument in one of the cases considering the constitutionality of the federal Defense of Marriage Act, or DOMA, which allows each state to determine for itself the definition of marriage. The text of his argument follows this note. In an unusual move, the Obama Department of Justice declined to defend DOMA, even as Obama has stated (for example, in a May 9 interview with ABC news) that he favors allowing states to decide the definition of marriage for themselves. The case in which George presented the oral argument (which was in support of a written brief he filed together with Sherif Girgis and Ryan Anderson) is Cozen OConnor, P.C. v. Tobits, in the United States District Court for the Eastern District of Pennsylvania. “ed.
A key question, perhaps the key question, this Court is being called on to address is whether the Constitution of the United States chooses between competing moral understandings of the nature, value, and social purposes of marriage, thus settling the question of how marriage is to be defined. On reflection, I believe your honor will see that it does not. Rather, the Constitution leaves the matter, as it leaves most matters of substantive law where choices between competing moral understandings must be made, for resolution in the forums of democratic deliberation and decision-making, including, in the case of federal law, the Congress of the United States.
Laws characteristically embody and reflect moral judgments. This is true of the law of contract and the law of murder, and it is no less true of the law of marriage. Laws should be made carefully so that they embody sound understandings of good and bad, right and wrong, justice and injustice; but as careful thinkers about law from Aristotle in ancient Greece to Dr. Martin Luther King in our own time have made clear, laws cannot be morally neutral, nor should we try to make them so. Efforts to mask the moral judgments embodied and expressed in our laws have no effect other than to wrap those judgments in a cloak of obscurity”creating a mere illusion of neutrality.
The historic law of marriage reaffirmed in the Defense of Marriage Act embodies the moral judgment that marriage is the conjugal union of husband and wife united in a form of relationship”a comprehensive sharing of life at every level, including the bodily-biological level”that is in principle apt for, and would naturally be fulfilled by, procreation and the rearing of children. This distinctive type of union is, and has always been understood to be, distinguishable from ordinary friendships and even from sexual-romantic domestic partnerships in its social function of binding men and women together in a way that, overall, best serves the interests of children who are born as a result of their sexual union, and serves society as a whole, which vitally depends on the marriage-based family for its stability. The conjugal conception of marriage is, to be sure, articulated in the scriptures of Judaism and Christianity as well as other faiths, but it was also articulated and defended by thinkers such as Plato and Plutarch in the ancient traditions of Greek and Roman thought with no reliance on the concept of divine revelation.
Of course, the conjugal understanding of marriage, though by far the dominant one not only in our own culture but in cultures generally, is not the only possible one. Insert a different moral understanding, and marriage could be defined, as it has been in some cultures, to accommodate polygamous partnerships and even, as some wish to define it today, to include multiple partners in polyamorous sexual unions of more than two persons.
In the case currently before your honor, the Court is being invited to replace the moral understanding at the heart of the historic conjugal conception of marriage with a competing moral understanding according to which marriage would be redefined as sexual-romantic domestic partnership”thus rendering sexual-reproductive complementarity unnecessary and irrelevant. Marriage, on the new moral understanding, would be an emotional union”a union of hearts and minds”but not a bodily union of the type made possible by the biological complementarity of husband and wife.
There are many good arguments for favoring the conjugal conception of marriage over the revisionist conception being proposed. The former moral conception can, and the latter moral conception cannot, provide an intelligible basis for the belief that marriage is, foundationally, a sexual partnership, as opposed to a partnership that could as well be integrated around any of a number of shared interests having nothing to do with sexuality. By the same token, the conjugal conception can provide an objective moral basis for norms of exclusivity, fidelity, and permanence of commitments”norms that on the revisionist conception can be affirmed, if at all, only on the basis of subjective sentiment, not moral principle.
However, this Court should not choose between the competing moral understandings on offer from supporters of the conjugal conception of marriage and the revisionist conception. This is because nothing in the Constitution settles the issue between them. It is left, rather, to the people acting on their own in referenda and initiatives in states that provide for those decision-making procedures, and through their elected representatives in the state legislatures and the Congress. It is up to the democratic process, not the courts purporting to act in the name of the Constitution, to make the moral judgment that marriage should be retained as a conjugal partnership, or to make the competing moral judgments that would redefine marriage, whether to accommodate polygamous, polyamorous, or same sex partnerships.
Robert P. George is McCormick professor of jurisprudence at Princeton University and a member of the First Things advisory council.
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