Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, December 22, 2010

Yoshino on SSM

Over at Slate, Kenji Yoshino continues the conversation with Robby George et al. regarding the nature of marriage.  I find the exchange to be healthy and productive, not because it's reaching consensus, but because it's clearing away much of the name-calling and easy assumptions and getting down to the core of the disagreement.  The core, not surprisingly, centers on the malleability of marriage.  Yoshino articulates his view:

[T]hose who have propounded trans-historical, much less eternal, definitions of marriage have often been time's fools. Fifty years from now, I expect new challenges will be made to the definition of marriage. Yes, such challenges could take the form of challenges to recognize polygamous marriages (in fact, such challenges would not be new, as they were made on grounds of the free exercise of religion in the 19th century). Currently, I would distinguish polygamous marriage primarily on the intuitive ground that one can give one's full self to only one other person—that is, that the "undivided commitment" the co-authors praise can be valuable even in the absence of common procreation. But I would prefer to test such intuitions if and when such debates become live national controversies. I do not purport to know where future challenges will arise, or how those challenges might require us to reassess the purposes of marriage. I refuse to answer the question "What is marriage?" by saying "Marriage is one thing, always and everywhere, for all people." I regard that refusal as a strength, rather than as a weakness, of my position, as I do not think we stand at the end of history today.

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I refuse to answer the question "What is marriage?" by saying "Marriage is one thing, always and everywhere, for all people."

So, why should I listen to what you have to say today, since your view may be entirely different tomorrow? And if you say to me, "I promise to be true to you, in good times and in bad", why should I believe you?

Posted by: Mark | Dec 22, 2010 4:27:00 PM

Mark;

The same challenge can be posed to anyone on any side in this debate. the answer is: are they describing something as it is, or as they think it should be? If the latter, then they have to persuade you; if the former: is their description accurate? If not, their credibility is lacking; if it is, you should listen because they are at least starting correctly.

sean s.

Posted by: sean samis | Dec 22, 2010 4:33:42 PM

Perhaps a philosopher or a social scientist (or both) out there could help me with this question. How does one arrive at *the* definition of marriage? I remember reading a paper from the social sciences not long ago in which the author said that what social scientists are actually doing is looking at a whole host of societal arrangements across many different cultures, identifying arrangements that intuitively seem marriage-like, and then trying to come up with a definition that fits them all. The problem here, of course, is that the arrangements one intuitively accepts as marriage-like will ultimately determine the final definition.

The Nandi tribe of Kenya practices polygamy, and when one of a man's wives grows older without having children, she goes through a marriage ceremony with a younger woman. The older woman is called the husband, and the younger woman is called the wife. She has sex with a man (usually one of the male husband's relatives) but has no other relationship with him. If the young woman bears children, they are legally and socially the children of the older woman, who is considered their father. So we have two women who are legally married, and when the younger woman has children, the older woman is legally their father. It seems to me that George must say this is not marriage. It also seems to me that Mark above must say that it is not marriage, even though in the culture where it takes place, it is (one kind of) marriage.

One other thing occurs to me, which I have written about briefly before, and that is that -- it seems to me -- George must not only demonstrate what "real" marriage is, but he must demonstrate that it is already embodied in marriage laws in the United States. Otherwise changing marriage laws would not change "real marriage," because we don't have "real marriage" in the United States anyway. I checked and found out that most states do not require consummation for there to be a legal marriage. Some states that don't require consummation but do allow permanent inability to consummate a marriage as grounds for an annulment, but only for a certain time period after the marriage. Consequently, to take New York as an example, if two people marry, they are legally married. If within five years, if one of them seeks an annulment on the grounds that consummation of the marriage is (and always will be) impossible, they may get the annulment. However, after the five years, they are legally married without grounds for an annulment, even if the marriage never was or never can be consummated. I think George would have to say they are legally married but not "really" married because they do not have a "conjugal marriage."

Posted by: David Nickol | Dec 22, 2010 5:31:50 PM

One further thought. The following paragraph is from "What Is Marriage."

**********
Any act of organic bodily union can seal a marriage, whether
or not it causes conception. The nature of the spouses’ action
now cannot depend on what happens hours later independently
of their control—whether a sperm cell in fact penetrates
an ovum. And because the union in question is an organic bodily
union, it cannot depend for its reality on psychological factors.
It does not matter, then, if spouses do not intend to have
children or believe that they cannot. Whatever their thoughts
or goals, whether a couple achieves bodily union depends on
facts about what is happening between their bodies.
**********

It is interesting to me that George not only includes in "real" marriage those who cannot have children, but those who DO NOT INTEND to have children. We have the following in the paper:

**********
Again, this is not to say that the marriages of infertile couples
are not true marriages. Consider this analogy: A baseball team has
its characteristic structure largely because of its orientation to
winning games; it involves developing and sharing one’s athletic
skills in the way best suited for honorably winning (among other
things, with assiduous practice and good sportsmanship). But
such development and sharing are possible and inherently valuable
for teammates even when they lose their games.
Just so, marriage has its characteristic structure largely because
of its orientation to procreation; it involves developing
and sharing one’s body and whole self in the way best suited for
honorable parenthood—among other things, permanently and
exclusively. But such development and sharing, including the
bodily union of the generative act, are possible and inherently
valuable for spouses even when they do not conceive children.19
Therefore, people who can unite bodily can be spouses without
children, just as people who can practice baseball can be teammates
without victories on the field. Although marriage is a social
practice that has its basic structure by nature whereas baseball is
wholly conventional, the analogy highlights a crucial point: Infertile
couples and winless baseball teams both meet the basic requirements
for participating in the practice (conjugal union;
practicing and playing the game) and retain their basic orientation
to the fulfillment of that practice (bearing and rearing children;
winning games), even if that fulfillment is never reached.
**********

But it seems that a couple that does not INTEND to have children would be equivalent to a baseball team that always intended to lose.

Posted by: David Nickol | Dec 22, 2010 5:49:15 PM

This is all old hat, at least for those of us who have followed the past decade's debate between John Finnis, Robert George, and Patrick Lee, on the one hand, and Stephen Macedo and Andrew Koppleman, on the other (pgs. 197 to 204 of George and Lee's *Body Self Dualism in Contemporary Ethics and Politics* gives the traditionalist respose to the "infertility objection" http://books.google.ca/books?id=VlUkhrvWwCkC&printsec=frontcover#v=onepage&q&f=false).

Here is Yoshino's description of the central fault line:

"This problem also stands as an impediment to the separate argument made in the article that infertile couples are still engaged in "conjugal" sexual activity because their "coitus" leads to a special kind of union. Why deem the sexual intimacy of an infertile couple to be a totally separate activity from the sexual intimacy of a same-sex couple, when neither results in procreation?"

Yoshino fails to grasp the distinction between *token* and *type*. A token is an instance of a type and a type is a class of acts. The answer to his question is that the union of an infertile heterosexual couple is still a token of the reproductive *type*, while same-sex intercourse (oral or anal) is something of a different order altogether. What fertile heterosexual couples do and what infertile heterosexual couples do is *exactly the same behaviorally*. Intrinsically, there is no difference between the two. The difference instead lies in an extrinsic factor (sterility), which conditions the union of the infertile couple but not that of the fertile one. Of course, the infertile couples know that they cannot reproduce and they may not even wish to reproduce. The description of their union, however, remains the same as that of the fertile heterosexual equilavent: their act is reproductive in *kind*.

By contrast, oral and anal intercourse, whether between opposite-sex or same-sex couples, are instrinsically different *types* of acts from vaginal intercourse. Infertile vaginal intercourse could acquire pro-creative potential if the extrinsic (not instrinsic) condition of sterility were removed, but no change in extrinsic factors could possibly
render oral and anal intercourse pro-creative in type. It is an intrinsic feature which seperates them from vaginal intercourse.

Why then should the law include the marriages of infertile (and intetionally childless) couples but not that of same-sex couples? Because the conjugation of the former bears witness to the goodness of marriage as a bridge accross the gender divide, a bridge upon which the next generation is nurtured and social capital is passed on. If children should be raised, ideally, by their biological parents joined together in matrimony, then even the union of infertile and intentionally childless couples reinforces this key notion.

I also wish to address another consequence of the traditional view, raised by Yoshino as a criticism.

"Resting marriage on a common procreation argument tells some people within an institution (marriage) that they have a right to be there even though they are not fulfilling its core purpose. In doing so, it ranks their marriages below the marriages of those who are fulfilling its core purpose."

But the reasons we have for privileging marriage through the law are not necessarily the same as the considerations any particular couple has for marrying. A couple may wish to marry because they love each other. That in itself is not a reason for legally regulating their future married life, though. The state's interest is compelled precisely because the orientation of marriage towards procreation is exhibited at a general, societal level.

Posted by: Clement Ng | Dec 22, 2010 6:40:21 PM

So he refuses to define marriage? That is the problem. Marriage does have a definition. Can. 1055 §1 The marriage covenant, by which a man and a woman establish between themselves a partnership of their whole life, and which of its own very nature is ordered to the well-being of the spouses and to the procreation and upbringing of children, has, between the baptised, been raised by Christ the Lord to the dignity of a sacrament.

We know what marriage is, but some do not want it to be defined. He admits that their are no real boundaries. This is exactly what I have said would happen. It isn't a strength. It is something that will do dreadful harm to society.

Posted by: Fr. J | Dec 22, 2010 7:07:14 PM

Sean--

I may have been unclear, or possibly I did not fully understand the depth of your comment. While I grant you that in a fallen world even those of us who believe in the transcendent might change our mind, I also believe human beings can put more metaphysically into a promise than mere intent. But if someone doesn't believe in "always", but rather believes the very strength of his argument derives from his realization that he can say nothing permanent, hence nothing important, then why should we listen? In fact, why does he even bother talking?

Posted by: Mark | Dec 22, 2010 7:07:25 PM

It is not so easy to define marriage or to discern its true values. The Church has always accepted that civil society needs families wholly apart from their sacramental dimension, but that is not an invitation to invent. Everything that is real is something, and not anything else.

As Father J observes, it is not us who define marriage. It is the Lord, the Creator who defines it. That comment will do nothing to slow Mr Yoshino's racing pulse, but that's too bad. There is an old proverb somewhere which states that: "Man cannot marry woman, nor woman man, but only Jesus Christ can join them in the bond of his love." He is Lord, and he joins whomever he wills. Our sacrament of marriage is his sacrament, but it is not exclusive.

But what it can never be is a societal convention. If that sufficed, why would there ever be divorce? Does society at some point call a halt! You have to separate now? Or is society not actually very keen on the whole idea from the start? Marriages fail, and people fail for lack of a happy marriage. It happens all the time. Can the community prevent that by tweeking the definition, or voiding it? If the comunity defined marriage, it would surely do so in a way the ensures that no marriage ever fails.

But why has Jesus allowed his sacraments of marriage to be spoiled? I will pass the question for now, but he has defined marriage, and he has done so in a defeasible way. He would it seems rather accept failures to occur than to compromise his goals for what marriage is really meant to be.

Posted by: Joel Clarke Gibbons | Dec 22, 2010 9:44:05 PM

Fr. J and Joel,

It may be true for many that God or the Church define marriage, but the task Robert George has set himself (as in his book Embryo: A Defense of Human Life) is to make a nonreligious argument. You will find the word "God" only three times in "What Is Marriage?" and all within a brief section about whether or not homosexuality is innate.

If you are interested in discussing the debate between Kenji Yoshino and Robert George then appeals to canon law or God's "intentions" are off topic.

Posted by: David Nickol | Dec 22, 2010 11:36:18 PM

Mark,

You say: "But if someone doesn't believe in 'always', but rather believes the very strength of his argument derives from his realization that he can say nothing permanent, hence nothing important, then why should we listen?"

The fact that someone refuses to make a timeless definition of an evolving institution does not mean he has nothing important to say. It means he doesn't have anything timeless to say. I have always found this quote about marriage from John L. McKenzie’s Dictionary of the Bible to be fascinating:

**********
Marriage in Israel was neither a religious nor a public concern; it was a private contract, and it is this conception which leaves so little room for it in Hb law, which deals only with the exceptional cases. The contracting parties were not the bride and groom but the families, i.e., the fathers of the spouses; the brothers of the bride had the disposal of the girl if the father were dead.
**********

It seems unlikely to me that people at this time -- if asked to write an essay titled "What Is Marriage?" -- would have come up with anything remotely resembling what Robert George has written.

Posted by: David Nickol | Dec 23, 2010 12:15:15 AM

David Nickol wrote:

"It seems unlikely to me that people at this time -- if asked to write an essay titled "What Is Marriage?" -- would have come up with anything remotely resembling what Robert George has written."

Nor would those Israelites have imagined that two men or two women could marry.

McKenzie's description does not touch George's definition. It only states that marriage in Israel was largely a non-legal affair, and often considered a contractual tie between families and clans (sometimes entered into for political purposes). Opposite-sex complementarity was still the contour that bounded the institution. George's view ("marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together") does not rule out the possibility that a couple may *treat* their marriage like a contract, nor does it even conflict with the claim that marriage resembles, in some respects, a contract. The key idea, though, is that marriage should be seen as *more* than just a contract.

Speaking of biblical witness, I note that in Matthew 19:4, Jesus quotes Genesis 2:24 ('Therefore a man leaves his father and his mother and clings to his wife, and they become one flesh'). The connection between this statement and the metaphysics of the natural law view should be obvious. Reproduction is the only biological function that cannot be exercised individually. Though a male and a female are complete individuals with respect to other functions - such as sensation, locomotion, digestion - they are not complete with respect to reproduction. Only when a man and a women have vaginal intercourse do they become a single unit (whose sole function is that act which is reproductive in type, even when procreation does not ensue). This is the 'one-flesh' union of Scriptural language. Here the body is not instrumentalized, treated as a mere means to some end, like pleasure. The pleasure instead attends on the bodily union, and the bodily union makes possible the personal union.

Posted by: Clement Ng | Dec 23, 2010 2:19:15 AM

Clement Ng,

I agree with you that Yoshino's rebuttul proceeds from ignoring or denying the distinction between token and type that structures George's argument. Thank you for so clearly explaining that distinction above, as it's central to any worthwhile discussion of this issue.

I do think, however, that David Nickol raises a good point. On George's view, *contracepting* heterosexual couples do not engage in the *type* of action proper to the conjugal act; therefore, a heterosexual couple who intended, for whatever reason, *not* to have children would be engaging in a type of act identical to that undertaken by homosexual partners.

Consequently, this couple cannot be said to have consummated their marriage at all--inasmuch as their own kind of sexual activity is not different in kind than, say, anal or oral sex--and thus aren't *really* married. Many of my Protestant friends, I imagine, only consummate their marriages years after they have been wed.

Now, should the state intervene here, and demand that heterosexual couples provide proof of intent to engage in the type of action that is properly reproductive (i.e. non-contraceptive vaginal intercourse) before recognizing their marriage? If not, why not?

Posted by: WJ | Dec 23, 2010 8:05:25 AM

WJ,

I don't know how George would respond, but in my own work, I often address your question in this way.

Heterosexual sex--barring extrinsic factors such as contraception or infertility--is always at least potentially fertile. The actuality of fertility may be frustrated by a physical disorder or a person's intentional actions (contraception), but the intrinsic potential of fertility would express itself in actuality if those extrinsic factors were removed (i.e., disease or use of contraception). The offense of contraception is that it treats normal fertility as a disease--calling what is naturally good, "bad"--and frustrates the natural, fertile potential of a sexual act. BUT that does not render an instance of heterosexual, contraceptive sex a different "type" of act, to use the language Ng uses above, because it retains its intrinsic fertile potential

By contrast, homosexual sex--or oral or anal sex between heterosexual partners--is never even potentially fertile. The nature of those acts is fundamentally different. There are no extrinsic factors (disease or intention) that could be removed that would suddenly reveal the intrinsic fertile potential of anal or oral sex. You can't reveal what doesn't exist on any level.

Hopefully that helps a bit.

Greg

Posted by: Gregory Popcak | Dec 23, 2010 9:09:01 AM

Greg,

You say: "BUT that does not render an instance of heterosexual, contraceptive sex a different 'type' of act, to use the language Ng uses above, because it retains its intrinsic fertile potential."

Germain Grisez disagrees with you:

**********
Intentionally using a condom while engaging in sexual activity in order to prevent the contact of tissues and mingling of fluids is incompatible with intending the behavior, described above, pertaining to the reproductive process. For when a condom containing a penis is inserted into the vagina or a penis is inserted into a condom contained within a vagina, the penis is not in the vagina but in the condom, which is being used to prevent the contact of tissues and mingling of fluids. Even if semen is ejaculated into the condom and the couple is fertile, such sexual activity cannot result in reproduction—except per accidens, e.g., if the condom breaks or leaks. So, such sexual activity cannot pertain to the reproductive process. Hence, anyone engaging in such behavior cannot be engaging in sexual intercourse. Therefore, while a couple engaging in such behavior may wish to engage in sexual intercourse, they cannot do so, and so cannot intend to do so, unless and except insofar as they are confused about what they are doing.
**********

You say: "The actuality of fertility may be frustrated by a physical disorder or a person's intentional actions (contraception), but the intrinsic potential of fertility would express itself in actuality if those extrinsic factors were removed (i.e., disease or use of contraception)."

This strikes me as saying a Couple A, who are using a condom (with contraceptive intent) during "sexual intercourse," are performing the same type of act as Couple B, who have no contraceptive intent and are not using a condom, except that Couple A has different intentions and are using a condom.

Being postmenopausal for a woman is not a physical disorder or a matter of intention. It makes not sense to me to say a postmenopausal woman is intrinsically or potentially fertile because, were she not postmenopausal, she would be actually fertile.

Coitus interruptus is "open to the transmission of life," but I don't believe Robert George would consider it sexual intercourse. Intention is not an "extrinsic" factor.

Posted by: David Nickol | Dec 23, 2010 10:43:08 AM

Thanks, Gregory. My problem with this solution, however, is that it conflates the two different act types of non-contraceptive vaginal intercourse between an infertile couple and contraceptive intercourse between a fertile couple. I agree that the first type of act is nonproblematic, as it is intrinsically directed toward the outcome of fertility, whether or not the token instance of the act does in fact result in fertility.

The second type of act, however, cannot rightly be described as engaging in sexual intercourse at all (as Grisez, quoted by Nickol, rightly points out). It is philosophically indistinguishable from oral sex, or anal sex (homosexual or heterosexual), or mutual masturbation. The only difference between this act of contraceptive "intercourse" and these other acts is that this act gives the *appearance* of being vaginal intercourse, when in fact it is not. To say that this action is at least "potentially fertile" is no different than saying that even homosexual sex is "potentially fertile," in that the semen resulting from that sexual activity might later somehow be deposited in a woman, resulting in pregnancy. For the Church's position to be consistent and rigorous on this score--and I am a proponent of the Church's position--one really does have to view the condom as if it were an anus or a mouth. For the condom is the final repository of the ejaculate, not the vagina. The difference in proximate spatial distance between the condom and the vagina and between, say, the anus or the mouth and the vagina is accidental, and has no bearing on determining the kind of act it is that we are describing. So I don't think your solution works.

The Church does not have a three-tiered gradation of sexual acts: 1. conjugal acts per se; 2. contraceptive heterosexual sex; 3. oral and anal homosexual or heterosexual sex. Rather, there is a basic and fundamental distinction between two types of act: the conjugal act and all others. Contraceptive heterosexual sex fits clearly in this latter category, for all the same reasons more obviously sodomitical acts do.

Posted by: WJ | Dec 23, 2010 11:49:17 AM


Hi folks,

I will start off by saying that this is the very type of careful, informed and patient dialogue we should all wish to see on blogs. Thank you.

I am reminded of a discussion in a philosophy of biology class I was enrolled in this year. Central to that discussion was the notion of 'function'. It does not seem controversial to me to say that body organs have functions (typically, these are those activities that were selected for in our evolutionary history). Moreover, an organ can still be said to have a function (and it can have more than one function) even when some external factor prevents it from realizing the putative function's goal. Finally, an organ can be utilized for something other than what its function specifies.

The heart, for example, has a characteristic activity: it pumps blood. If a heart suddenly stopped pumping blood on account of some disease, we would not say that it no longer has a function. Rather, we say that it is *malfunctioning*. Also, the heart makes a beating sound, which is useful in medical diagnosis. Making a beating sound is not the heart's characteristic activity, however.

If it is a function of the penis to ejaculate semen when stimulated and if it is the function of a sperm to unite with an egg, then that is what these *should* do. This normativity remains the case even when the both are frustrated from reaching their goals. I cannot speak for Grisez, but I do not see why the tradionalist view requires that sperm actually be deposited in the vagina. A man who uses a condom or has had a vascetomy still has an organ whose characteristic activity during vaginal intercourse is ejaculation of sperm.

(Of course sperm could also be ejaculated into a mouth or anus, but what possible function does it have there? In describing intercourse, I see no reason to seperate the act into sub-parts. We say, for example, that a women breasts feeds her child, not that only her milk does (although it certainly does do that). It cannot be a function of the penis to simply ejacualte semen *simpliciter*. Either that sperm has a trajectory or it does not).

Likewise, we have no problem normally in saying that the function of the ovaries is to generate eggs (and also secrete estrogen and progesterone). When a woman becomes menopausal, the ovaries still be understood to have this function, even though it can no longer produce eggs. Compare: the function of a clock is to tell the time. When it breaks down because its parts have worn out, it is now a *malfunctioning* clock. A malfunctioning clock, of course, still has a function: to tell the time. Simiarly, the function of our hands is to sense external surfaces and grasp objects. When we can no longer grasp objects because our fingers have become gnarled, it nonetheless makes sense to say that grasping is still one of our hands' functions. It is just a function that is no longer excercisable.

If this view is correct, then contraceptive vaginal intercouse is still reproductive in type. Both organs are ordered towards an end state. The use of contraception simply impedes the functioning of the organs - they still 'want' to perform their characteristic activity but cannot realize the normal effects, owing to a factor that is extrinsic to the act. By contrast, in oral & anal sex and masturbation, the organs' functions are not even exercised (again, how could ejaculation in those contexts be part of the end state to which the organs are oriented, when the semen has nowhere to go?)

Certainly, the 'oughtness' I seek to defend does not derive from only a consideration of purported bodily functions. Still, the invocation of such distinctions helps us to understand why an object can be oriented towards a goal despite its being prevented from reaching it.

Posted by: Clement Ng | Dec 23, 2010 4:42:29 PM

Catholics have no problem with a natural law explanation of marriage. We honor reason. You don't need to be Catholic to understand that marriage is between a man and a woman.

Posted by: Fr. J | Dec 23, 2010 6:31:07 PM

Clement,

What role does *intention* play in your thinking? We say that a woman breast feeds her child, not that the breast milk does. But we also don't say the *breast* feeds the child. You speak of a penis as if it had a function somehow separable from the man it belongs to. The "marital act" is certainly more than the interactions between a penis and a vagina. May a man have sex with his unconscious wife, even if she gives permission beforehand? (I don't know the answer, but I assume it is no -- it would not be the "marital act"). If a man rapes his wife, both their sex organs may function as nature intends them, but I don't think the "marital act" has been performed. So doesn't intention come into play when a condom is used? How can contraceptive vaginal intercourse be reproductive in type when the reproductive aspect is removed by some technology and participants not merely don't have a reproductive intent, but intend the act to be nonreproductive?

I am confused when you say: "If this view is correct, then contraceptive vaginal intercouse is still reproductive in type. Both organs are ordered towards an end state. The use of contraception simply impedes the functioning of the organs - they still 'want' to perform their characteristic activity but cannot realize the normal effects, owing to a factor that is extrinsic to the act."

Both organs are ordered toward the end state, but with a condom, one of those organs is deliberately prevented from doing what it is ordered toward. I can see how involuntary infertility would be extrinsic, but I don't see how deliberately enclosing the penis in latex would be extrinsic to the act, any more than I see how a woman covering her breast with latex and allowing her baby to suck on it could be said to be breast feeding.

I hesitate to say anything about the malfunctioning clock, since I assume in discussions of this kind there are standard objections to it and standard answers to those objections and standard responses to those answers, etc. etc. But it does seem to me a clock can have more than one function. It can be used as a detonator for a bomb even if it is not keeping time. It can be a decorative item. It can be a memento whether or not it runs (as was a grandmother clock in our living room). As for the "true purpose" of body parts, I would certainly not argue that we must decide what is good and bad from observing animals, but I would think that the incidence of homosexual behavior among animals -- apparently *most* sexual behavior among giraffes is male-male anal intercourse -- would at least imply that organs use for what are considered nonobvious purposes may not in fact being misused.

Posted by: David Nickol | Dec 23, 2010 6:58:29 PM

Fr. J,

You say: "Catholics have no problem with a natural law explanation of marriage. We honor reason."

It is not surprising that there is such harmony between the Catholic understanding of marriage and the natural law understanding, since the Catholic Church was and is so deeply involved in formulating natural law.

Posted by: David Nickol | Dec 23, 2010 7:14:31 PM

David, actually God formulated natural law. Therefore it is no surprise that his Church would be in accord with it.

Posted by: Fr. J | Dec 23, 2010 7:51:33 PM

Hi David:

"What role does *intention* play in your thinking?"

Intention is a relevant factor in determining whether or not the act is morally licit. It does not play a role here in the classification of the act as reproductive in type or not reproductive in type. During intercourse, a husband can treat his wife as a mere object, lacking in any dignity. Their union would still be sex of the reproductive type, though it would lack moral goodness. Simiarly, rape is still an instance of a reproductive type class. It is not, of course, morally permissible.

"Both organs are ordered toward the end state, but with a condom, one of those organs is deliberately prevented from doing what it is ordered toward. I can see how involuntary infertility would be extrinsic, but I don't see how deliberately enclosing the penis in latex would be extrinsic to the act, any more than I see how a woman covering her breast with latex and allowing her baby to suck on it could be said to be breast feeding."

The key question here is 'where is the penis placed'? Inside the condom or inside the vagina? Or both? It seems odd to me to say that the penis is not inside the vagina, even though it is also inside the condomAl. Compare: when I put my fist on the face of the clock, I am preventing the hour, minute and second hands from revolving, thereby undermining the clock's function of telling the time. The clock is *still* oriented towards the end state of time-telling, however. What prevents it from actually telling the time is an external influence.

(Alternatively, the traditionalists can always claim that heterosexual couples who have not consumated their marriage or have only engaged in contraceptive vaginal intercourse are married "in name only". They have taken the first steps towards in a process that is fulfilled by procreation, even though they may never have children. As I have said beforre, even such infertile or intentionally childless marriages symbolize the bridging of the gender divide, *reinforcing* the general notion that heterosexual marriage is the ideal foundation for passing on our social capital).

"But it does seem to me a clock can have more than one function. It can be used as a detonator for a bomb even if it is not keeping time. It can be a decorative item. It can be a memento whether or not it runs (as was a grandmother clock in our living room)."

Yes, and I explicity affirmed in my previous post that an object may have more than one function, some of which may be artificial. A heart makes beatings sounds and these are obviously useful to a doctor when he or she is diagnosing you. The provision of a beating sound, though, is not the reason why the effects of the heart were naturally selected for in our evolutionary history.

"As for the "true purpose" of body parts, I would certainly not argue that we must decide what is good and bad from observing animals, but I would think that the incidence of homosexual behavior among animals -- apparently *most* sexual behavior among giraffes is male-male anal intercourse -- would at least imply that organs use for what are considered nonobvious purposes may not in fact being misused."

Again, I cautioned that the normativity I defend cannot be derived from only a consideration of putatative functions. People can of course use their body parts for all sorts of tasks that do not seem related to their function. We can use our hands as a notepad, for example. This does not militate against the intuition that sensing surfaces and grasping objects are the functions of the hand. The distinctions I drew in my previous post were simplyed deployed for the purpose of classifying acts as reproductive in type or not. Whether these are normative or not is a seperate question.

Also, I should re-iterate that the question of whether or not the acts are morally permissible is different from that of what function the organ in question has. To say that a function of the penis (among other things) is to ejaculate semen into the vagina during intercourse is not to say that it cannot be used for other purposes. With George and Lee, I agree that masturbation is a total instrumentalization of the body (for the full argument, see page 188 to 193 of http://books.google.ca/books?id=VlUkhrvWwCkC&printsec=frontcover#v=onepage&q&f=true - this section is accessible online). It is to treat the body as a mere means to some end, namely pleasure. The body is made subordinate to the mind, which is to disrespect the integrity of organic unity of the self. This is to me a improper use of our sex organs. The conclusion, however, depends, on several other premises besides acknowledgement of functions (e.g. that "hedonism" or seeking pleasure for its own sake is wrong, that the self is neither mind or body but is a composite of both, that genuine sexual desire is want of a person, not a sensation).

For obvious reasons, I will not be posting further comments today or tommorow. Merry Christmas everyone.

Posted by: Clement Ng | Dec 24, 2010 12:20:23 PM

Clement,

You say: "The key question here is 'where is the penis placed'? Inside the condom or inside the vagina? Or both? It seems odd to me to say that the penis is not inside the vagina, even though it is also inside the condom."

Suppose Madge the Manicurist asks me to soak my hands in a solution of Palmolive and water in preparation for my manicure. Suppose I wear rubber gloves. My fingers are submerged in the liquid, but are they "in" it?

Scientists working with dangerous viruses or toxic chemicals often have them in a large glass container that has built-in gloves that allow the scientists to insert their hands into the gloves and work with the objects in the glass container. Things can be inside or outside the glass container. It seems to me perfectly reasonable to think of the boundaries of the container as the glass walls and the materials that make up the flexible gloves. Something is inside the container if it is inside those boundaries, and outside the container if it is outside of those boundaries. Thus, when the scientist puts his hands in the gloves to manipulate objects inside the container, his hands remain outside the container.

Posted by: David Nickol | Dec 24, 2010 3:26:35 PM

In his critique Prof. Yoshino says,"... [R]esearch comparing the kids of gay adoptive parents to the kids of straight birth parents shows that the first group fares as well as the second." Prof. Yoshino refers to this research as a counter to George's reference to Child Trends research showing that the family structure that helps the child the most is a family headed by two biological parents. Yoshino states that the Child Trends research did not include gay adoption. So is Prof. Yoshino saying that children adopted by heterosexual couples fare poorly on the whole to children raised by their biological parents while children adopted by homosexual couples fare as well as children raised by their biological parents?

Posted by: phil swain | Dec 27, 2010 1:53:08 PM

Well, it was a tough slog, but I made it through the Girgis, George, and Anderson article, through Yoshino’s reply, through the reply to the reply, and through the reply to the reply to the reply. And so far, I've also made it through the Holidays. Happy New Year!

I would love to have the time to reply to Girgis, George, and Anderson in detail, but with 40-plus pages in their article and many more in the several responses and counter responses, there’s just too much to write for the time I have available. Suffice to say that the authors are unpersuasive in their advocacy of a new, revised understanding of what marriage is. I am inclined to stick with the current, common understanding with only a minor adjustment to allow for same-sex marriage.

I refer to the authors’ “definition” of marriage as new and revised because the authors are not telling us what marriage IS, but what they think it SHOULD BE. They are not reporting on what marriage is, but advocating a new understanding of marriage. They base their proposed revision on a definition that recognizes marriage based only on the performance of a particular sex act: coitus. They justify this because coitus is by their definition essentially a procreative act. However, their revised definition is not based on this essence of coitus, but merely the FORM of coitus. For them, as long as the sex act takes the FORM of coitus, the act is marital even if the essence of coitus (procreation) is not possible or not wanted. This proposed revision of our understanding of marriage is then, an elevation of form over substance.

This is important because for most of us, for ordinary people, marriage is a celebration of substance over form. This means that the enemy of the author’s revision is not only other revisionists, but more particularly their enemy is the current, common understanding of what marriage is.

Equally important, the authors’ proposed revision of marriage makes the form of coitus so important that it minimizes or denigrates other important purposes of marriage. These other purposes are, for many people, the primary reasons they enter into a marriage, or remain in it. The substance of marital acts is more about the relationship of the couple than about the children. We know this because marital intimacy (coitus or otherwise) does not normally commence only when children are wanted, nor does it end when no more children are wanted.

I recognize why the authors include non-procreative coitus in their redefinition of marriage; they have to account for the legitimacy of childless marriages. But, to steal a line from the authors, there is no principled way to distinguish non-procreative coitus from other forms of non-procreative sex. Their article does not reflect marriage as it is, but advocates the imposition on society of a State-sanctioned model of marriage fostering the authors’ particular points of view. This is inconsistent with a pluralistic society that values freedom in general and religious liberty in particular.

The authors struggle to distinguish marriage from other friendships and relationships while ignoring the obvious: marriage is commonly understood to be based on a pre-existing or hoped for sexual relationship. This is neither radical nor new. It is commonly understood. Society does not specify or mandate the form of this sexual intimacy; any sexual intimacy takes a relationship “to a new level”.

Marriage is a voluntary partnership between two not-closely related persons who aspire to maintain this relationship for the rest of their lives. In this relationship, each holds the other to be their closest, most intimate partner and confidant, the person with whom they wish to share all life’s joys and sorrows, benefits and burdens, for the remainder of their lives. Traditionally, the two people marrying must be a man and a woman.

Accepting this partnership means accepting duties of loyalty and fidelity toward each other, and gaining rights and claims on each other’s affections, attentions, and interests. These rights can be defended and vindicated by either of the couple against all third parties (including the State) and even against a betraying marital partner.

It is presumed that sexual intimacy will be part of a marriage (if it did not precede it) but it is not a requirement. The withholding of sexual intimacy, or demands for forms of sexual intimacy by one partner and not wanted by the other partner are all grounds for a partner to seek divorce. But the absence of sexual intimacy is not a ground for any third party (including the State) to interfere in a marriage; in fact it is considered improper for a third party (ESPECIALLY the State) to even inquire about these matters. Likewise, the form of voluntary sexual intimacy is not any ground for a third party to challenge the legitimacy of a marriage. If sexual violence is discovered, criminal sanctions may be imposed, but the marriage is not dissolved if both parties want it to continue.

Similarly, it is presumed that children may be conceived in the course of a marriage (if they did not precede it) but-similarly-this is not a requirement. If the couple are unable or unwilling to conceive or raise children, or even if the couple is UNFIT to do so, their marriage is neither barred nor denigrated. If the couple are demonstratively unfit parents, to the point that their children are all removed from their care and contact, the marriage itself is not affected in the least.

The preceding four paragraphs are not my description of what marriage SHOULD be, they comprise my off-hand account of what I and others see in our community; they are a description of what marriage IS. I am sure my description imperfectly captures current practice. I am also sure that a perfect description of current practice would capture practices and behaviors that would leave many people dissatisfied. Reality just is not ideal and we all seek after Ideals. But in a real, pluralistic society, real institutions and practices are necessarily compromises. There simply is no Ideal that we all agree to. Marriage practice and law necessarily are compromises, with flaws we all have to accept. There ARE hard rules that govern the enterprise of compromise: among them being religious freedom and equality before the law.

Religious freedom means no one can be compelled to approve of laws or practices that violate their religious beliefs. But religious freedom also means that no one’s liberties can be limited by the religious objections of others. Equality before the law means that we are all treated equally by the law except when a specific, tangible harm can be shown. Everyone’s rights extend as far as is consistent with the equal rights of everyone else.

Religious objections to same-sex marriage cannot be punished, but actions that interfere with the rights of others can be punished even if those interferences arise from religious beliefs.

The right of gays and lesbians to form marriages with their life-partners cannot be justly prevented while hetero’s have the same right.

Traditionally, the two people marrying must be a man and a woman. Since the State does not inquire into their sexual practices or preferences, nor their willingness or ability to reproduce, this last requirement is simply a tradition. The limitation serves no purpose. It does not encourage reproduction, the rising rates of out-of-wedlock births attests to that. It does not bind parents to their child-raising responsibilities; the frequency of run-away fathers and court imposed parental obligations on unmarried parents attests to that. The limitation of marriage to different-sex couples serves no purpose. It is simply a tradition that only marriages between a man and a woman are legally recognized.

Opponents to same-sex marriage focus on this one aspect of marriage. But because it is only an unreasoned tradition, opponents to same-sex marriage gen-up post-hoc explanations for it; explanations invented to justify a practice that has no reason beyond “that’s just how we’ve always done it.”

The principle of equality before the law speaks against this tradition. If the traditional limitation of marriage to different-sex couples had a reasonable purpose, then this distinction could be upheld against equity claims. But it does not have a reasonable purpose, so the distinction cannot be upheld without sacrificing the equity principle itself.

Absent any rational purpose, many opponents of same-sex marriage invoke religious or “moral truth” claims. But the principle of religious freedom speaks against these rationale’s. The distinction again cannot be upheld against the claim of religious freedom except by sacrificing religious freedom.

Opponents to same-sex marriage object that their religious freedoms are lost if same-sex marriage is legally recognized. They claim they will be compelled to approve of marriages that violate their religious beliefs. This is false. No one can be compelled to approve of a different-sex marriage, and no one can be compelled to approve of a same-sex marriage. Approval is not the issue: interference is.

The right of gays and lesbians to form marriages with their life-partners cannot be justly prevented while hetero’s have the same right. It really is just that simple.

sean s.

Posted by: sean samis | Dec 31, 2010 11:05:58 AM

George, Girgis, and Anderson, in their response to Yoshino complained 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).

So, here we go. 1) Why should marriage be 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)?

It is good that the verb is “should be” because marriage is not currently required to be a sexual relationship. Marriage is a relationship in which sexual intimacy is presumed, but not required. Cohabitating brothers are barred from marriage by their close kinship and their shared gender, not by a lack of sexual intimacy. Oddly, if a man and a woman who’s entire relationship were built on a shared interest in tennis went to a court house to get married, they would be permitted to do so EVEN IF THEY FULLY DISCLOSED THE BASIS OF THEIR RELATIONSHIP. The Justice of the Peace might find it odd, but not prohibitive.

So, when George, Girgis, and Anderson pose this question, they are actually seeking a reason to REVISE current marital practices. They want to CHANGE THEM, not to justify them.

But for the sake of argument, how might a limitation of marriage to sexual relationships be justified? Because sexual intimacy profoundly alters any relationship, creating a different kind of relationship; different from all other kinds of non-sexual relationships. Sexual relationships are distinguished by its ultimate physical intimacy and vulnerability. Other relationships may be deep and vital, but they simply lack this level of intimacy and vulnerability. Is this sufficient to justify CHANGING MARRIAGE LAW to limit marriage to sexual relationships? I’m not sure; I’m much less sure I know why we’d want the State to make these inquiries.

2) Why should marriage be limited to an exclusive union of only two persons (rather than three or more in a polyamorous arrangement)?

Yoshiro and many others have answered this one: there can only be one superlative.

It is our practice to assume that marriage is a voluntary partnership between two not-closely related persons who hold each other as their closest, most intimate partner and confidant with whom they wish to share all life’s joys and sorrows, benefits and burdens, for the remainder of their lives. Forming a marriage means accepting this partnership and accepting duties of loyalty and fidelity toward each other, and gaining rights and claims on each other’s affections, attentions, and interests. These rights can be defended and vindicated by either of the couple against all third parties (including the State) and even against a betraying marital partner.

There can be only one person who is your closest, most intimate confidante and partner. As such, these relationships are logically limited to two persons, each in their ultimate relationship. As long as everyone is limited to just one marital partner, there is no equity claim against the rule. No one can make a rational claim that they are naturally oriented toward having multiple, simultaneous, ultimate partners in life. Many are serial-monogamists, but not naturally born polyamorists (is that a word?)(It is now. Ain’t English wonderful?)

Yoshiro and many others have also noted that polygamy is as well rooted in religion and tradition as different-sex marriage. George, Girgis, and Anderson seem to have elided over that irony, or I missed their comments on it.

And finally: 3) Why should marriage be 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)?

This goes back to the first point. We presume (but do not require) that a marriage be a sexual relationship. Sexual relationships create an especially sensitive relationship between people with different needs, different expectations, and different interests. It creates a claim on the affections of the other that go far beyond the interests of other mere friendships. The State has an interest in legally recognizing these ultimate relationships to give the couple some assurance that their vulnerability and interests are attended to and recognized.

George, Girgis, and Anderson have written about the impact of marriage on social and personal stability, which is a related but distinguishable justification for legally recognizing sexual relationships.

And of course, ANY FRIENDSHIP can be the basis of a marriage if the couple so choose to take it to a new level. The only topic at hand is whether the couple seeking a marriage based only on tennis must be different-sexed or can be same-sexed.

A question for George, Girgis, and Anderson: since we don’t require marriage to include sexual intimacy, and because even you three agree that sexual intimacy in marriage includes coitus performed with the intent to NOT procreate (and yet you regard that as a marital act) a question arises: If different forms of sexual intimacy have the same purpose (sexual gratification without procreation) then how do we in principle distinguish which FORMS are compatible with marriage and which FORMS are not? Coitus may be uniquely found in different-sex coupling, but other forms are uniquely found in the coupling of two men or in the coupling of two women. Any of these forms are “unique”, they all have their “forms of personal and physical completion” and in this instance, NONE have the purpose or orientation toward procreation. In this instance, all are oriented only toward sexual gratification. What is the principled reason for distinguishing among sex-acts when they are all not procreative, when procreation is not wanted or when procreation cannot occur?

Further, what then is the principled reason for the State to care about what form a couple’s sexual intimacy takes? And do we really want the State to make these inquiries?

sean s.

Posted by: sean samis | Dec 31, 2010 11:16:01 AM

Catching up here a little bit.

Clement Ng wrote on Dec. 22: “But the reasons we have for privileging marriage through the law are not necessarily the same as the considerations any particular couple has for marrying. A couple may wish to marry because they love each other. That in itself is not a reason for legally regulating their future married life, though. The state's interest is compelled precisely because the orientation of marriage towards procreation is exhibited at a general, societal level.”

This comment has the matter backwards. If the State’s interest is compelled by X, and if the State’s regulations are rationally tailored to advance X, then State regulations are legitimate even if otherwise discriminatory. However, if the State’s regulations are not tailored to advance X, then discrimination cannot be justified BY X. In the Real World, State regulation and privileging of marriage are NOT compelled by any “orientation of marriage toward procreation”. We know this is true because the State does not predicate privileges or the right to marry on procreation. The State does not even inquire to a couple’s procreative activity, their procreative ability, their procreative desires, their procreative fitness, nor their fitness to be parents. The State does not even require sexual consummation of marriages.

Several commentators (Joel Clarke Gibbons and Fr. J especially) attribute marriage to God; that God created it. There are several responses to this, but the only one that really matters is a reference to the First Amendment. The very concept of Religious Liberty forbids State institutionalization of religious beliefs. If the State refuses to recognize same-sex marriage on religious grounds, then this violates the Religious Liberty rights of same-sex couples. If there are other grounds for the State’s refusal, they are a separate matter.

The discussion between David, Clement, WJ, and Greg Popcak regarding “kinds” of sexual intimacy, the distinction between tokens and types, potential fertility, and sexual intention is interesting. The bottom line is, however that the State does not inquire as to the form or kind of sexual intimacy practiced by any betrothed couple, and I am quite certain that such State inquiries or related regulations would face extreme opposition. If the State does not care about the kind of sexual intimacy practiced, then the kind of sexual intimacy practiced cannot be a rational basis for deciding who will marry. Likewise, since the State does not care about actual or potential fertility, this topic is also without merit as a basis for refusing to recognize a marriage. Likewise, since the State does not care about reproductive intentions, this topic is also without merit as a basis for refusing to recognize a marriage. Their discussion is valid and interesting as philosophy, but a more important philosophical question is: Should the State be allowed to invoke considerations like this to bar same-sex marriage when the State does not care about them regarding different-sex marriage?

Some may object that I lean too heavily on what the State does or should do, but the question before us is what should the State be allowed to do (recognize or refuse) vis-à-vis same-sex marriage. Other writers wax prolific on the Ideal of Marriage; which is well and good until the disconnect between State action and the Ideal are explored.

sean s.

Posted by: sean samis | Jan 2, 2011 2:38:56 PM

Hi Sean.

Thank you for your contribution. You offer a neat twist by attempting to invert George, Girgis and Anderson's scheme, labelling their view as 'revisionist' and touting your account as 'marriage as it is actually is'. First I will attend to a technical matter:

"They justify this because coitus is by their definition essentially a procreative act. However, their revised definition is not based on this essence of coitus, but merely the FORM of coitus. For them, as long as the sex act takes the FORM of coitus, the act is marital even if the essence of coitus (procreation) is not possible or not wanted. This proposed revision of our understanding of marriage is then, an elevation of form over substance."

The Aristotelian distinction between form and matter applies primarily to objects, not acts. Moreover, form *is* essence in this framework. The form of a dog, for example, is what makes any particular canine a dog. It is the very thing that subsumes all canines under the class of dogs.

In any event, what the traditionalists claim is that marriage is oriented towards procreation, in the same way that, for example, a baseball team is oriented towards victory. The orientation is characteristic primarily of the class, and only secondarily of the particulars. That is why it makes perfect sense to say that the function of sperm is to unite with oocytes, even though most sperm do not achieve this unity. The key distinction is between potential/orientation and act/fulfillment, not form and substance.

Second, I will respond to your central rebuttal that sexual intercourse is not a requirement of the legal validity of marriage. Note that in the common-law tradition, your claim was not entirely true. Deliberate non-consummation of marriage by either party allowed the other party to have the marriage declared void (i.e. that the putative marriage never happened in the first place). This is still the case in England under the Matrimonial Causes Act. Moreover, in common-law history, only vaginal intercourse, not anal or oral sex, could constitute consummation.

Of course, the common law has evolved differently across different jurisdictions and has been supplanted by statute law in many areas. That is not a problem for George, Girgis and Anderson. They can reply, quite consistently, that a couple who have not consummated their marriage are married "in name only". This pair has taken the first steps in a process that is fulfilled by procreation, even though they may not reach this end (or even care to reach it). Such a union is a marriage in the formal sense, but not yet in a fuller, substantive sense.

Thirdly, I will suppose that sexual intercourse is presumed, but not required, in determining what a marriage 'is' (this is your view). What follows from this is that we no longer have any principled way of distinguishing between marriages and other kinds of close, personal friendships. Suppose that my best female friend and I tire of dating and decide to live together exclusively and permanently, intending to share all benefits and burdens, except for sex. Your description of marriage ("a voluntary partnership between two not-closely related persons who hold each other as their closest, most intimate partner and confidant with whom they wish to share all life’s joys and sorrows, benefits and burdens, for the remainder of their lives) could apply to us. For who is to say that our interaction is not 'intimate' and that we are not each other's closest confidant?

Certainly, you can bite the bullet, accepting this odd result that follows from your definition of marriage. You already appear to do so in your second post. If that is the case, however, then you ought to allow that the right to marry should be extended to all sorts of non-conjugal couples. Your exclusion of co-habiting brothers from such a schema lacks a defensible basis, because their biological relatedness poses no discernable threat to the stability of the institution of marriage on your view. Likewise, any two roommates who wish to live together in exclusivity and permanency would also qualify for marriage rights.

Pointing out that the law already permits two tennis partners to marry does little to undercut the traditionalist view. We can always claim that such a marriage is simply formal. It could be consummated by vaginal intercourse. A same-sex relationship cannot (back to this later).

Fourthly, I do not see how your bare assertions against the legalization of polyamory can withstand scrutiny. You simply define marriage as a voluntary relationship between two closely non-related persons and then maintain that "no one can make a rational claim that they are naturally oriented toward having multiple, simultaneous, ultimate partners in life." Surely this proposition requires a defence. Many men claim that they are naturally hardwired towards promiscuity and the social scientific evidence for this is partially supportive. Furthermore, if the state should not concern itself with what form a couple's sexual relations take, then why on earth should it limit marital relations to just two people? If a woman wants to marry two men (or two women), where is the "specific, tangible" harm that you require to be shown (as you set out in your first post)? To re-insist that one can only give of oneself to one person at a time is to merely re-offer your definition. That is no defense at all.

By contrast, the traditionalist view does a much better job of ruling out the legalization of multiple partner relationships. The harm in view affects primarily the children. If marriage is oriented towards procreation, then this requires the permanent sharing of a whole life between the father and mother, for the children's well-being. Children have the right to be raised by a father and mother who do not divide their attention among multiple partners.

Fifthly, I agree that the state should not investigate the intentions and capacities of couples prior to allowing them to marry. This practice is entirely consistent with the traditional conception of marriage, however. A state can regulate an institution to protect certain outcomes *without expecting the outcomes to ensue in every case*. The state offers universal secondary education but does not expect all students to graduate. Similarly, the state cannot tell beforehand which couples will reproduce and which will not. Yet that is no obstacle to its interest in regulating married life, because reproduction is still a feature of heterosexual coupling as a class. It does not need to require procreative fitness of every couple as a marital condition for it to treat marriage as an institution connected to child-bearing. It simply needs to privilege that form of the family that is most conducive to the protection and enhancement of children’s wellbeing.

As for the infertility and intentionally childless marriages objection, that has been responded to in previous posts. The unions still bear witness to the goodness of marriage as a bridge across the sexual divide, the bridge on which social capital is passed on. If children should be raised, ideally, by their biological fathers and mothers joined together in marriage, then even infertile and intentionally childless unions reinforce this ideal. For they embody the gender complimentarity that is key to children's well-being. This, in a nutshell, is the justification for the tradition you have trouble grasping the significance of.

This ideal may not be worth upholding. There is no inconsistency, however, in including these couples in the ambit of the institution while excluding same-sex ones.

Sixthly, I re-iterate that the reasons for focusing on reproductive type (vaginal) intercourse and distinguishing it from oral and anal sex should by now be obvious. Reproductive type sex is of social concern because it can generate children, whose well-being the state has an interest in protecting and enhancing. Oral and anal sex have no social consequence worth regulating (which is not to say that it has no consequences at all). Your observation that we are already beset with the problems of divorce and single parenthood by abandonment do not at all show that the state has no interest here (for why do the conditions of divorce differ between couples with children and couples without? Could this not have something to do with the welfare of children?).

Ultimately, the claims you put forward lead to the view that the state should withdraw from the marriage and family arena altogether. It should not extend the right to marry to same sex couples so much as refrain from regulating any marriage and family life.

Posted by: Clement Ng | Jan 3, 2011 1:18:16 AM

Clement,

The description I give is of how we already define marriage under current law and social practice; not what I think it SHOULD be; not what it is Ideally. Please note that I even include the limitation to different-sex couples; a limitation I disagree with. It is no “neat twist” to see that Girgis, George, and Anderson’s scheme requires us to change current practice; it would require revising our cultural and social practices.

You posit an example in your seventh paragraph regarding you and your girl-friend in which you “tire of dating” and decide to live together without sex. You say that my description “could apply” to your situation. This is wrong. Under current law and social practice, if you want to marry on this basis, the description I drafted UNQUESTIONABLY DOES APPLY. If this very day, you and your girl-friend went down to the court-house and completed the necessary paperwork, you two could be married EVEN IF YOU FULLY DISCLOSED YOUR REASONING. No one would say that you cannot get married because of it. This is not my “opinion”; it’s just the way things are.

You call this result odd. It may be, but it is entirely consistent with current law and social practice. The only thing odd would be if you announced your reasoning. If everything else was the same and you said nothing, no one would think it odd.

Marriage CAN be oriented toward procreation, but even a non-marital relationship can be; hence the growing numbers of children born out of wedlock. More importantly, marriage often is oriented toward things other than procreation. Baseball is a good analogy. Most people don’t play baseball only for the opportunity to win, they play it for the pleasure of the activity and the socialization with their team-mates. Likewise, some people marry for the pleasure and social connections.

Marriage, like any sport, has multiple “purposes”; there are many reasons that people participate. Trying to identify the one, distinct “orientation” is foolish; there IS NO ONE “orientation”. Certainly, when we teach our children to play baseball, we don’t make victory the validation of the effort Playing well is what we encourage. One of my kids plays in a baseball league where some teams NEVER win, and some batters never get to first base; yet we applaud their effort because victory IS NOT the purpose of playing.

Your comments on common law and “deliberate non-consummation” miss the point. The State does not require consummation, it merely allows one to get out of a marriage IF ONE WANTS on those grounds. If the parties don’t object, no one else has standing to interfere. These days, one needs little more than some amorphous “incompatibility” to dissolve a marriage. Good or bad, that’s the way it is. George, Girgis, and Anderson may say that an unconsummated marriage is marriage “in name only” but that marriage is treated by law and society the same as any other marriage, and that is all that matters. The validity of a marriage is determined by the couple and law and society, not academic theorists. If the couple don’t complain, then the law regards their marriage as fully valid. So does society. The only caveat being that currently the couple must be of different genders.

Marriage is about saying that the other in your couple is The One. Again, this is not my suggestion, it’s just the way it is for most people. It is a common theme in popular culture. We know that people fall out of love, but at least for the moment, when a couple marries, it is presumed (reasonably) that each is marrying someone with whom they have a unique bond. It simply is not logically possible to have two persons who are your closest friend. You may object that this is somehow indefensible and arbitrary, but if that is so, then YOU cannot defend traditional marriage either.

I obviously have not been clear about a point; so let me clear it up now. I believe marriage should continue to be a relationship in which sexual intimacy is presumed, but not required. How do I justify this? Relationships involving sexual intimacy are categorically different from all other relationships because of the personal, physical and emotional risks and investment required to maintain it. This includes same-sex relationships and is not (and has never been in the US) predicated on reproductive ability. There is only the possibility of children in a marriage, but the certainty of a life-partner’s interest and needs. The State will always have an important interest in legal recognition, regulation, and protection of marriage to ensure those interests and acknowledge their risks.

I realize that you might object that relationships producing children are also categorically different; and yes indeed they are. But this categorical “boundary” is not between same-sex and different-sex couples, but between couples with children (including by adoption) and those without. Some of the group with children are same-sex couples, some of the childless group are different-sex couples.

You write that “exclusion of co-habiting brothers from such a schema lacks a defensible basis, because their biological relatedness poses no discernable threat to the stability of the institution of marriage on your view.”

Again, you’re reading is not quite right. My description of marriage is based on what society and the law currently do. I didn’t write that cohabitating brothers should be excluded from marriage; my point is that they are excluded by the current state of the law: “Cohabitating brothers are barred from marriage by their close kinship and their shared gender, not by a lack of sexual intimacy.” If their marriage poses a “discernable threat to the stability of the institution of marriage”, I don’t see it and neither you, nor Girgis et al. have described that threat. I’m ok with it if you are.

If I didn’t know better, I’d say it sounds like you are defending polyamourous, or cohabitating-brother marriages. If not allowing them is capricious and arbitrary for anyone, it is capricious and arbitrary for you too.

You wrote that “the traditionalist view does a much better job of ruling out the legalization of multiple partner relationships. The harm in view affects primarily the children. If marriage is oriented towards procreation, then this requires the permanent sharing of a whole life between the father and mother, for the children's well-being. Children have the right to be raised by a father and mother who do not divide their attention among multiple partners.”

Think about it. Your last line asserts a right to not only have monogamous parents, but to be the ONLY CHILD! I had the traditional mother and father. But I also grew up with 8 siblings; talk about your “divided attention”! For several years I thought my name was Joe-Mark-Jim-Dan-Sean. As long as parents give attention to their children, ten parents are at least as good as two. And as we see in Real Life, two parents can be just as bad as none. If your argument were true, then children would be harmed if they grow up in extended families or small, tight-knit communities. It seems counter-intuitive and I’ve not seen any evidence of such harm.

You write that “A state can regulate an institution to protect certain outcomes *without expecting the outcomes to ensue in every case*.” Correct. But this rationale does not give a State a regulatory blank-check. The State is not permitted to discriminate except if that discrimination advances the State’s legitimate interests. But since same-sex marriage does not threaten the “outcomes” you allude to, discrimination against same-sex couples has no rational purpose and violates their Religious rights and Equal Protection rights.

You wrote “the goodness of marriage as a bridge across the sexual divide” between men and women. I pondered this one for quite a while; and I’ve concluded that this is either vacuous or a post-hoc rationalization equivalent to “only men and women can marry because only men and women have been allowed so far”. If there’s more to this, I don’t see it. I am open to correction.

You wrote that “Reproductive type sex is of social concern because it can generate children, whose well-being the state has an interest in protecting and enhancing.” Even if so, that justifies regulating reproductive sex; it does not justify prohibiting same-sex marriage. Again, a legitimate regulatory interest does not create a regulatory blank-check. Whatever regulatory goals the State may have regarding “reproductive sex”, legal recognition of same-sex marriage will not interfere with those goals.

Finally, you conclude that “the claims [I] put forward lead to the view that the state should withdraw from the marriage and family arena altogether.” Perhaps that is your conclusion; it is not mine. There are good, valid reasons why the State still has an interest in regulating marital relations; you have given several. My point is that same-sex marriage is entirely compatible with “traditional marriage” once we get over the purposeless prohibition on same-sex marriage.

sean s.

Posted by: sean samis | Jan 4, 2011 10:01:35 PM

Hi Sean. I'll draft a response tommorow. It'll be my last one.

Posted by: Clement Ng | Jan 5, 2011 2:26:17 AM