Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, May 20, 2008

George on Marriage as an Intrinsic Human Good

In response to my question about voting for same-sex marriage in 2038 if the consequentialist arguments have lost their persuasive power, Prof. Robert George kindly forwarded me his contribution to the book, The Meaning of Marriage.  He attempts to reclaim "a sound understanding of marriage, especially in its sexual dimension, as an intrinsic, rather than merely instrumental, human good."  An excerpt:

According to the traditional understanding of marriage, then, it is the nature of marital acts as reproductive in type that makes it possible for such acts to be unitive in the distinctively marital way.  And this type of unity has intrinsic, and not merely instrumental, value.  Thus, the unitive good of marriage provides a noninstrumental (and sufficient) reason for spouses to perform sexual acts which by uniting them as bodily persons (that is, one flesh) consummate and actualize their marriage.  At the same time, where the central defining good of marriage is understood to be one-flesh unity, children who may be conceived in marital acts are understood not as ends extrinsic to marriage . . . but rather, and uniquely, as gifts that supervene on acts whose central defining and justifying point is precisely the marital unity of spouses.

If we recognize this intrinsic value of marriage, then the law must support that recognition:

The law is a teacher.  It will teach either that marriage is a reality in which people can choose to participate, but whose contours people cannot make and remake at will (e.g., a one-flesh communion of persons united in a form of life uniquely suitable to the generation, education, and nurturing of children), or the law will teach that marriage is a mere convention, which is malleable in such a way that individuals, couples, or, indeed, groups, can choose to make of it whatever suits their desires, interests, or subjective goals, etc.

I very much appreciate (and recommend) Prof. George's analysis, as he has thought more deeply and coherently about this issue than I ever will.  I also agree that maintaining marriage as a meaningful social institution requires limitations on its malleability.  (Dale Carpenter has offered some thoughts, and linked to others' work, on drawing boundaries between same-sex marriage and polygamy.)  I wonder, though, if privileging opposite-sex couples based on their participation in acts that are "reproductive in type" can carry the weight that is being placed on it in this analysis.


Vischer, Rob | Permalink

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