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.

Tuesday, March 26, 2013

Andrew Koppelman, "More Intuition Than Argument"

Northwestern law prof Andy Koppelman reviews, in the new issue of Commonweal, the book What Is Marriage?  Man and Woman:  A Defense, by Sherif Girgis, Ryan Anderson, and Robert P. George.  The book is the basis of an amicus curiae brief that Robert George et al. have submitted to SCOTUS in the two "gay marriage" cases being argued before SCOTUS this week.  Read Andy's review and see whether you agree with his evaluation of the book, which ends with this:

"That claim’s most fundamental difficulty is the short distance from premise to conclusion. The union of the married heterosexual couple is uniquely good because...well, because the union of the married heterosexual couple is uniquely good. This raw intuition comes decorated with a complex theoretical apparatus, but that apparatus does no work. It’s like one of those old trick math problems, which at first glance seems to require complex computations:

7 + 8,398.14 × B ÷ √55 - 8,398.14 × √55 ÷ B = ?

Look again, and it’s clear that all the complexity cancels itself out, and that you end up right back where you began.

The publication of What Is Marriage? is a public service. It advances understanding of a perspective that many (though fewer and fewer) Americans share, but it is unlikely to persuade anyone who doesn’t already agree with its claims. It is a lucid window into a disappearing worldview."

The entire review is here.


Perry, Michael | Permalink


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Koppelman provides no argument against the book's central claims, nor does he answer the question about what marriage is.

But these are not the main failing of the review. Even worse, the review is incoherent, since it draws its most important conclusion from a premise it claimed was meaningless. That passage is as follows: "The most attractive alternative to their view is that marriage is not “essentially” anything. It is a contingent cultural formation, which doubtless would never have arisen if humans did not reproduce sexually, but which nonetheless has no essence."

I thank Koppelman for successfully arguing against himself.

Posted by: Gary | Mar 26, 2013 6:17:35 PM

Today, in our Supreme Court, The Word of God was put on trial. The union of a man and woman in Marriage is uniquely Good because the complementary nature of man and woman is Life-affirming and Life- sustaining, and necessary to continue Life on Earth.

Posted by: N.D. | Mar 26, 2013 6:22:26 PM

Marriage exists because when a man and woman have sex they might have babies. Two men or two women don't have that problem, so there is no need to make them promise to each other permanent and exclusive fidelity before hopping in bed together. Same sex marriage is nugatory.

Posted by: CLS | Mar 26, 2013 10:33:49 PM

There is no inherent right to marry whomever you Love as Marriage requires a couple can exist in relationship as husband and wife. It is, however, unjust, to intentionally deprive a child of a father or mother and thus discriminate against fatherhood or motherhood.

Posted by: N.D. | Mar 27, 2013 12:36:24 AM


If we are to take your argument seriously, marriage is "nugatory" for any two people of the same sex or of opposite sexes who cannot procreate. It is "nugatory" once a heterosexual married couple has raised their children and the woman goes through menopause. You seem to view marriage as a kind of necessary evil. Those who have the "problem" of possibly getting pregnant must be forced (or at least encouraged) to marry in case a pregnancy happens.

Posted by: David Nickol | Mar 27, 2013 1:54:08 AM


You are correct. The physical incapacity to consumate is an impediment to marriage. The idea is that you ought to marry a person before hopping into bed with them. Babies happen and are the primary end of marriage. They are beautiful little bundles of joy that take a lot of work. Society (and the kids) are better off when they have a mom and dad around.

Marriage is (primarily) an attempt to guarantee that babies have two parents around.

Companionship is an important, but secondary, attribute of the marital contract.

Posted by: CLS | Mar 27, 2013 8:19:46 AM


I don't know how you can say, "Marriage is (primarily) an attempt to guarantee that babies have two parents around." An attempt by whom? Marriage has served so many functions over the millennia that any attempt to define its "purpose" is going to be inadequate. One could say, "Marriage is an attempt to guarantee a man knows who his offspring are." (One of the very knowledgeable commenters of First Things constantly points out that what is unique about marriage is the "presumption of paternity.") Marriage is a way of organizing structures of kinship. Marriage is (or was) a way of seeing to it that women were taken care of. Marriage was a way of controlling or sublimating sexual instincts. Marriage is an economic institution. Marriage has no one aim or purpose.

And of course for people who cannot have children, do not have children, or have raised their children and sent them out into the world, how can you say companionship is secondary? I do not put much stock in using Genesis to illuminate the purposes of marriage, but I do not read the creation of Eve as being for the purpose of making babies.

It occurs to me that Girgis, Anderson, and George would have to concede that Bill Clinton was speaking the truth when he said, "I did not have sexual relations with that woman—Miss Lewinsky." Sexual relations (sexual intercourse) is so precisely and technically defined that Clinton and Lewinsky did not have a sexual relationship at all. They engaged in mutual masturbation. At the risk of being accused of being anti-intellectual, I think people like Girgis, Anderson, and George are overanalyzing and over defining sex and marriage. As has been debated before, by their definition, the very model of the family for Catholics—the Holy Family—consisted of two persons who weren't married with a child being raised by someone other than his biological mother and father.

Posted by: David Nickol | Mar 27, 2013 9:34:05 AM

David, are you suggesting that once a married couple can no longer procreate it is discriminatory to continue to affirm their marriage because the State doesn't recognize, for example, the Love between two men, two women, a father and daughter, a mother and son, a brother and sister, children, as a marital union?

Posted by: N.D. | Mar 27, 2013 9:35:43 AM

Hi N.D.,

I don't want to answer for Mr. Nichol but when the Federal Government is using the status of the married couple who can no longer procreate to give them tax advantages, then yes, that is discriminatory. I think that's how Ms. Windsor ended up at SCOTUS today and frankly, if that happened to me, I'd be scaling the walls of SCOTUS.

Posted by: Edward Dougherty | Mar 27, 2013 10:56:14 AM

Edward, are you suggesting that the institution of Marriage is unconstitutional not because the State should affirm the equity of sexual acts and thus sexual relationships but because the State is providing tax benefits to couples that remain married to each other after they can no longer procreate?

Posted by: Nancy | Mar 27, 2013 12:06:08 PM

No, and I didn't suggest any such thing.

Posted by: Edward Dougherty | Mar 27, 2013 12:09:44 PM

Marriage is about Children. Its primary (not only) purpose is as an ex-ante promise between two people to raise any offspring they might have before having sex. Of course companionship is important. I never said it wasn't. I simply said it is not the primary end of marriage.

Posted by: CLS | Mar 27, 2013 12:09:59 PM

Marriage exists for the sake of the husband, the sake of the wife, and thus for the sake of the new family that is created when a man and woman are united as husband and wife.

Posted by: Nancy | Mar 27, 2013 12:57:56 PM

Nancy, what I'm saying is that marriage is either a religious or a public good. If it is a religious good, then let it be such with full freedom of religious instittuions to marry who they do or do not wish to marry. But then, that should also say good-bye to any favors that the IRS gives in the tax code to heterosexual married couples. Your stance is doing the same thing to same sex couples through the tax code that is being done to dissenting churches and business through the HHS mandate and that's making them pay for something that they don't agree with. The only difference is that the tax code and the Federal Government through DOMA doesn't allow same sex couple to take the option of being married. I'm not a lawyer and goodness know I'm not knowledgable about these things but if that isn't unfair and unjust then I don't know what is.

Posted by: Edward Dougherty | Mar 27, 2013 12:59:16 PM

I think Koppelman's analogy of a gun that doesn't shoot with an infertile couple is inapt. When natural objects pursue their intrinsic natural ends they are pursuing a good whether it materializes or not. The good pursued by use of an artifact resides solely in the intent of the user.

Posted by: Phil Swain | Mar 27, 2013 1:38:23 PM

Edward, I am not a lawyer, my degree is in Elementary Education. This does not change the fact that the union between a husband and wife serves both the public Good and as a reflection of a Religious truth, and thus respect for the Sanctity of Marriage and the Family has always served as a Religious and public Good. Since it is true that not every couple can exist in relationship as husband and wife, and thus Marriage, by its very essence is restrictive to begin with, then the question before the court is whether or not it is unjust discrimination to give tax benefits to Married couples and their families.

Posted by: Nancy | Mar 27, 2013 2:15:17 PM

And I have the feeling that you'll find that the court will find that it is unjust discrimination. Religious values and arguments certainly have their place in the public square but not when they are allowed to financially disadvantage people.

Posted by: Edward Dougherty | Mar 27, 2013 2:34:37 PM

Those of you concerned about the "injustice" of DOMA seem to be focused on the tax benefits that married couples enjoy under federal law. Gay couples do not have the same benefits and that is allegedly unjust discrimination.

Are those of you in support of repealing DOMA also concerned about the injustice of federal tax laws on other types of relationships? For example, 2 sisters who love each other and live together for life are similarly situated to 2 lesbian women, but they will not have any tax benefits once DOMA is overturned - are you equally concerned about that sort of injustice? Why should 2 lesbians get tax breaks but not 2 sisters who have a made life-long commitment to each other? Marriage law excludes a lot of people other than lesbian and gay couples - if this is about creating an inclusive society where everyone is treated the same, why limit the new definition of marriage to 2 only these limited beneficiaries?

If the concerns for justice are really about tax and social security benefits, why not reform the federal tax code to account for all types of relationships that adults can freely choose to enter? Why not let 2 sisters escape the estate tax the way 2 lesbians can once DOMA is overturned? Wouldn't that address your concerns about the "injustice" of DOMA without having to pretend that gay couples and straight couples are the same, even though only one of those couples can even potentially create new life together?

Any why limit the definition of marriage to 2 people? If marriage has something to do with procreation or potential procreation, marriage of 2 people makes some sense. But if marriage is not about procreation - e.g. gay marriage - then why limit the benefits to 2 people. If people are free to create the families they want with the ones they love, why should the government prefer 2-person forms of relationship over other forms of relationship?

How can those of you who argue that DOMA is unjust stop short of stating that all marriage law is unjust? Wherever you draw the line some legitimate, civilized people who love each other and want to be a "family" will be excluded from the benefits of the law.

Posted by: BMoney | Mar 28, 2013 12:11:56 PM

Hi, BMoney

I am not aware of any provision in DOMA that provides for sibling relationships but the two sisters are blood relations and next of kin. That would give them protections right there that same sex couples are currently denied.

As for limiting marriage to two people, I'm not aware of any SSM advocates who are asking for the right to marry everyone. They are only asking for the right to marry someone. You can form anti-polygamy laws to apply to all races, creeds, ages and sexual orientations. Laws against SSM, like DOMA, exclude a certain class of people. Plus, from a legal standpoint, we have an interest in banning polygamy because of the confusion it would cause in cases when a man with two wives is suddenly incapacitated (for example). Which of the two wives would speak for the husband? Obviously, we'd wish to avoid situations like that. Plus, the fact that people in general, gay or straight, are not interested in polygamous relationships.

Posted by: Edward Dougherty | Mar 28, 2013 12:50:48 PM

That's a slippery slope argument. Slippery slope arguments are quite common as doing anything is arguably a step in the direction of eventually doing something else that is bad/unwanted. But if we admitted that one slippery slope argument is correct, what's to keep us from admitting that all slippery slope arguments are correct? And if all slippery slope arguments are correct, then how can we allow our government to do anything at all? And if we can't allow our government to do anything at all, how can we defend ourselves from the terrorists?

So the question BMoney's argument actually raises is, why does BMoney want the terrorists to destroy America?

Posted by: WmBrennan | Mar 28, 2013 2:32:46 PM

Friends, I ask these questions in good faith hoping for answers:

1. Saying "it's a slippery slope argument" is not the same thing as answering the question. If it is unjust to deny 2 lesbians a tax break because the lesbians love each other and live together as a life commitment, why is not unjust to deny a tax break (or social security benefit or health plan benefits or FMLA benefit or whatever) to two sisters who love each other and live together as a life commitment (e.g. FMLA does not cover sibling relationships so the sisters would have to gay marriage each other in order to be able to take off of work to care for each other). If traditional marriage is so unjust because it denies loving couples these benefits, it seems to be unjust in a lot of people who are similarly situated to lesbians. Why are you not concerned with this injustice?

2. People with same-sex attraction are already allowed to marry someone - no one is denying them the right to marry. They can already take advantage of the tax laws, social security laws, etc. that other married couples people do - as long as they get married to someone with whom they have biological complimentarity. What they are now asking for is the right to marry anyone they love, including someone of the same sex. If they have the right to marry anyone they love, why don't we give that right to everyone?

3. Doesn't every argument for gay marriage prove too much? Every argument for gay marriage seems like an argument against all marriage laws (because all marriage laws discriminate against someone), or an argument for an expansive definition of marriage that could include lots of other types of relationships besides 2-person gay relationships. For those of you supporting gay marriage, what is "marriage" properly understood and why does it include gay and straight couples but no one else? What is the essence of marriage that limits it in this way?

4. I am not sure that no one is interested in polygamy. I think polygamy has a much longer tradition than gay marriage does - both in the U.S. and around the world (it's even in the Bible!) If marriage is just a contract, shouldn't the adult parties to the contract decide for themselves whether they think it is unjust? Why are you imposing your moral views of them - isn't that being judgmental? If we are going to have an open, inclusive society, let's stop telling people with whom they can form life-long lasting, loving relationships.

5. Limiting marriage to 2 people makes sense if marriage is linked to procreation because it takes 2 people to make a child. But there is no reason to limit it to 3 people once we open the door for same-sex marriage. Gay marriage means that marriage is no longer the unique man-woman relationship through which new life is brought into the world; it is now a contract between any 2 adults that principally functions to promote their well being. If marriage is just a contract between any 2 adults, then why can't it be a contract between 3 or 4 adults? Marriage, the argument goes, helps to create stable relationships, so it should benefit society to encourage polygamy for those who want it. Polygamous relationships, unlike gay ones, can actually produce a child, which gives the state an additional reason to protect it. At the end of the day, aren't those who are convinced that marriage includes gay relationships but excludes polygamists just appealing to "tradition" (we just know marriage is between 2 people), or imposing their moral judgments on the free contracts entered into by other adults? What principle limits it to 2 people once the potential for procreation is removed as the central reason for the state's involvement in marriage?

6. Some gay marriage advocates who oppose polygamy claim that polygamy creates practical problems (e.g. which wife gets to make medical decisions when her husband is in the hospital). But those practical problems are minimal in comparison to what our society is currently trying to do with the law governing marriage and children (e.g. re-writing the rules for a world in which kids get to have 2 moms or 2 dads or a surogate mother, a biological dad, and an adoptive mother - at least with polygamy there is just one biological dad and one biological mom for each child). Let's be honest: the practical hurdles of polygamy will not be that difficult to overcome. We could set easy-to-understand default rules to solve all those problems (e.g. first marriage in time gets first rights, etc.), and then let the parties contract around them if they want different rules. Isn't that the just thing to do to ensure that no one is denied the right to marry the people they love?

7. Once we accept gay marriage we are saying that marriage no longer needs to have anything to do with sex. Consummation of marriage is now irrelevant. Why should the state care if gay people are having sex as part of their marriage relationship when that sexual activity can never produce children? Given that sex is not a requirement of marriage once marriage is expanded to include same-sex relationships, why should the state give heightened attention to gay relationships (sexual or non-sexual), but not let 2 sisters or 2 same-sex cousins who are life partners "marry" each other.

8. What is marriage anyhow? I respect Ryan Anderson et al. for making a comprehensive case. Where are the gay marriage advocates on this issue? Michael Perry, where is the comprehensive explanation of marriage for progressives that answers all of these questions and explains why marriage - properly understood - includes gay and straight couples but no one else?

These are all honest questions and I would love to have someone advocating for gay marriage actually answer them and provide a complete explanation of what marriage is and why the state should care about it.

Posted by: BMoney | Mar 28, 2013 5:34:22 PM

"Friends, I ask these questions in good faith hoping for answers ..."

Perhaps, but relatively few people have the time or interest to respond to scores of what appear to me to be purely rhetorical questions. Also, questions like "Doesn't every argument for gay marriage prove too much?" ask others to first collect and then analyze all possible arguments for gay marriage. Why should somebody else go to that trouble for you if you won't do it yourself?

Posted by: WmOckham | Mar 28, 2013 8:31:45 PM

In order to say that two men and two women can be married to each other, one has to deny the essence of being male or female, the essence of being a husband or wife, the essence of the marital act, and if children are introduced into the relationship, the essence of being a father or mother, basically one has to deny the essence of who we are as human persons existing in relationship, in order to affirm a sexual relationship that does not respect the personal and relational Dignity of the human person, from the beginning.

Posted by: N.D. | Mar 28, 2013 9:17:13 PM

WmOckham: Thank you for responding. The question I asked -"doesn't every argument for gay marriage prove too much" - is a very reasonable question and I did ask it in good faith. You don't have to analyze every argument for gay marriage to answer that question (as you suggested in your email), you just need to give one argument that does not prove too much. I have never heard any gay marriage proponent provide such an argument, which is why I asked the question. If you are a gay marriage supporter, I assume you have already considered the arguments and could tell me why your reasons for supporting gay marriage prove just enough to include homosexual relationships within the definition of marriage while allowing you to exclude all other relationships from the definition of marriage without causing an injustice to be done to those excluded. I would also expect that you would want to explain your reasons so that those of us who disagree could appreciate the soundness of the gay marriage position and be convinced by the force of the argument.

Ryan Anderson - to his credit - has laid out the case for traditional marriage in a comprehensive way and everyone has gotten the chance to attack his ideas because he has actually put his cards on the table. But gay marriage advocates never seem willing to say what marriage is - they are often allowed to call their opponents bigots or out of touch or living in the past or on the wrong side of history (watch CNN or MSNBC for 5 minutes and you will know what I mean), or they are allowed to dodge the questions without ever subjecting their arguments to any real scrutiny. This blog post by Prof. Perry is a perfect example - it links to a critique of Ryan Anderson's position, but neither Prof. Perry nor the critic make an argument for gay marriage. The critic does, however, play the "wrong side of history" card by concluding condescendingly that Ryan Anderson's book is a public service because it provides a window into a disappearing worldview (which is true only if you live in a very small bubble and ignore the views of most of the rest of the people in the world).

I realize people don't have all day to respond to blogs, but I would like for someone to lay out the case for gay marriage and explain what marriage means when sex and children and biological complimentarity are no longer essential elements of a marriage relationship. Isn't this the sort of forum where we can actually discuss these ideas? But we can only have a discussion and learn something if the gay marriage advocates actually put their cards on the table and make the case for their revised and updated version of marriage.

Here are 2 non-rhetorical questions: What is the essential content of marriage if marriage includes homosexual relationships? And why does that content exclude all other relationships from being considered marriages?

Posted by: BMoney | Mar 28, 2013 11:00:06 PM

P.S. Look again at the equation, and notice it is missing a crucial element.

Posted by: N.D. | Mar 31, 2013 9:55:48 AM

Friends, I fear BM's questions are full with dubious assumptions and lack of insight.

1. Sex discrimination requires heightened scrutiny. Recognizing spouses and sisters are different also really shouldn't be that hard.

2. People here are not asking for the right to "marry anyone they love." They are saying, like in Loving v. VA, sex is not a valid barrier here, the ability to marry a person of the same race there also not enough. Same sex couples are "biological complimentarity" -- that is, they are attracted to each other, they compliment each other that way. Why is the ability to insert "a" into "b" the only way to be "biological complimentarity"?

3. SSM argues a specific discrimination is wrong, not that every classification is wrong.

4. Marriage is not "just a contract," few is interested in polygamy and it is not a matter of being "judgmental," but that polygamy is different from monogamy is ways that justify treating it differently than monogamy. It is on the other hand wrong to deny people from marrying based on race, religion, sex and various other things.

5. Procreation is not a requirement to get married; infertile people can get married. If procreation was the goal, polygamy would make sense too.

6. Polygamy is obviously possible since societies have it but it's complicated for various reasons and monogamy specifically is supported for various purposes. Members of the same sex raising children is also possible and have been done for some time, including simply having let's say two aunts raising a child after parents die in a car crash. Marriage laws don't rise and fall on that issue one way or the other.

7. Marriage doesn't require people to have sex now though obviously same sex couples have sex. Who are these "we" that say marriage no longer needs to have anything to do with sex?

8. Same sex supporters, like opponents, have various opinions on "what marry is."

Posted by: Joe | Apr 5, 2013 6:11:54 PM