Long-term readers of this blog may recall that I have asked, on many occasions, for someone to present a justification for continuing to discriminate in marriage law between couples depending on the gender of the participants.
Today someone pointed me to a paper by Sherif Girgis, Robert P. George, and Ryan T. Anderson trying to put the argument that, in essence, marriage is about teh children, and gay people can’t have teh children, so the state shouldn’t encourage people to think marriage is not about teh children by stopping discriminating against gays and lesbians in marriage legislation. Because then people who want to have children might not get married (like now) and people who want to get married might not try to have kids (like now). And stop thinking about all the exceptions to the rule. Exceptions to the rule don’t count, unless they’re gay.
And marriage is different from, say, a pair of really supportive tennis partners because of the sex. And before you tell us that gay people also have sex, let us quickly define which sex counts. ONLY SEX THAT MIGHT RESULT IN PROCREATION. Gay sex, sex between infertile couples, sex with contraception, none of that counts because it’s not “mutual coordination towards a bodily good”. Sex could NOT be about intimacy between the couple, it just isn’t, which is why married couples stop doing it after they’ve finished having children. In the authors’ experience.
There are 43 pages of this.
Anyway, the article was thoroughly and convincingly rebutted by Kenji Youshino in Slate, The Best Argument Against Gay Marriage – And why it fails.:
We all know that the common-procreation argument declares war on all same-sex marriages. But it is worth reviewing just how demeaning it is to opposite-sex couples who do not produce their own offspring. They are like losing baseball teams. They are not the real parents of their children. True, their status is not directly on the line in the gay marriage debate—George and his co-authors are not coming after their marriage licenses. But if common procreation were to be accepted as the central basis of marriage, it would necessarily treat their marriages as inferior. In its broad and unforgiving sweep, this argument is self-destructively over-inclusive. It succeeds only in diminishing the institution of marriage itself.
Needless to say, the response by George, Anderson and Sirgis, does not meaningfully tackle Yoshino’s point.
Here’s their summary of their awesome argument, their challenge to equality advocates:
We also show 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).
We were explicit in framing these as challenges to proponents of gay civil marriage. And if anyone is capable of meeting them, surely it is Professor Yoshino. So his decision to pass over those challenges in perfect silence confirms and reinforces our belief (also amply defended in our article) that only the conjugal view can answer them.
That’s right. Their arguments are all deflections. How about incest? How about polygamy? How about getting rid of marriage altogether? Why don’t you resolve these things nobody’s arguing about and which you’re not advocating before addressing the specific proposal on the table?
- Marriage doesn’t require sex even now. If two people of the opposite sex who cohabit want to get married without having sex, the law doesn’t stop them. Incest has its own problems, but they do not arise in gay marriage. If you want to propose legalising incest, then we can consider your proposal on its merits.
- If you have more than two people, then you have a whole range of practical problems with, for example, consent when parties wish to join or leave some but not all of the other people. And how do you divide marital property when one person leaves the others? Needless to say, those problems do not arise in same sex marriage. Again, if you want to debate polygamy, put forward your proposal for consideration on its merits.
- Marriage is desirable as a civil institution because it helps protect people in terms of issues like inheritance, taxation, etc. In any case, whether the state should withdraw from the area or not is clearly an entirely separate argument, and not one that illuminates this issue. Because nobody here is actually proposing it. Both sides of this debate agree that marriage is of benefit to society. The question is whether it should be arbitrarily excluded from some people on the grounds of gender or not.
Wow, that was difficult.
And these are supposed to be the best arguments against equality!
I agree with George et al that a central question to be resolved is “what is marriage?”
But the problem is that the answer to that question will vary on the person answering it. If you’re looking at what are the necessary conditions for a union to be a marriage, then you need to find ones that don’t exclude a whole host of existing non-controversially married couples.
For example – marriage is about committing to each other for life, that you will look after each other and support each other. About joining the lives of those within the marriage together, distinct from the rest of the world.
Or is it the case that the concept of marriage encompasses a set of aspects, of which some are required in order for society to accept that relationship as a marriage? But where some may be excluded? Because you can find exceptions to even the above. Obviously people do get divorced. And others live very separate lives. Maybe the definition of marriage is simply the state that exists between two consenting adults who wish to marry their lives together – that seeking the state of marriage is what creates the marriage itself. That marriage is an optional state and if people wish to form that connection between each other, then the state should apply consistently the rules and arrangements it has set in place to regulate marriages.
In reality, the vast majority of people will only marry for the above reasons, or a combination of the above reasons. If there’s no genuine intimacy who would commit their life to another person above all others?
In any case, whatever criteria you think are necessary for marriage, it’s clear hardly anyone really believes that having children is one. If having children – or the potential of having children – was a critical element of marriage, so critical that gay people should be ruled out of the institution because they can’t (although we’ll see what happens with lesbians in the coming years), then we would look askance at older people marrying. It would seem odd, not like a real marriage. Women post menopause wouldn’t bother marrying because there’d be no point to it.
In reality, of course, who bats an eyelid at such marriages? Clearly we don’t, and clearly that’s because we realise that marriage has significant meaning to the participants even without children or the possibility of children.
And so it does to gay and lesbian people. Which is why many of them want to get married.
Frankly, I’m tired of waiting for the anti-equality side to come up with an argument that isn’t so easily disposed of.
UPDATE: This is the flimsy effort at trying to distinguish heterosexual sex that doesn’t result in conception from homosexual sex that doesn’t result in conception:
Because interpersonal unions are valuable in themselves, and not merely as means to other ends, a husband and wife’s loving bodily union in coitus and the special kind of relationship to which it is integral are valuable whether or not conception results and even when conception is not sought. But two men or two women cannot achieve organic bodily union since there is no bodily good or function toward which their bodies can coordinate, reproduction being the only candidate. This is a clear sense in which their union cannot be marital, if marital means comprehensive and comprehensive means, among other things, bodily.
You want a “bodily good or function” towards which gays and lesbians’ sexuality can coordinate? Orgasm. Intimacy. Communication. Pleasure. The reasons why humans (and most other creates that have sex) continue to have sex when procreation is impossible. These “bodily goods or functions” are all available in gay and lesbian sexuality. The first sentence even admits that conception being sought is not necessary for sexuality to be valuable. So what’s really the distinction between the two, other than that gay and lesbian sex makes those authors religiously uncomfortable?
Man, the crazy things you have to pretend to believe in order to concoct some flimsy reason to discriminate against people.
Meanwhile, this is how they start their section trying to link marriage to children – with a highly dubious assertion that “most people” agree with them.
Most people accept that marriage is also deeply—indeed, in an important sense, uniquely—oriented to having and rearing children.
Assertion, meet contradiction: No they don’t, and no it isn’t. Exhibit 1: the many childless marriages. Exhibit 2: the many children raised out of wedlock. QED.
Oh, but wait, we have an answer to that:
People who can unite bodily can be spouses without children, just as people who can practice baseball can be team-mates 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.
Oh, no we don’t. That’s just argument by definition. Infertile couples meet the basic requirements, do they? Clearly those basic requirements don’t include having children, or the ability to have children, because infertile married couples don’t. So then how do gay people not meet those basic requirements? Because we’ve added a clause that says that being infertile is a barrier to marriage IF YOU’RE GAY. And why is it a barrier? Because you’re gay. Why must being gay be a barrier? Because you’re gay and can’t have kids. Why is being straight and not having kids not a barrier? Because they’re straight. Why is that not a barrier? Because they’re not gay. Why is that the barrier? Because they’re not straight.
It’s just common sense:
On the other hand, same-sex partnerships, whatever their moral status, cannot be marriages because they lack any essential orientation to children: They cannot be sealed by the generative act. Indeed, in the common law tradition, only coitus (not anal or oral sex even between legally wed spouses) has been recognized as consummating a marriage.
But society no longer determines whether a marriage is a marriage on the grounds of what type of sex the partners have. If a straight couple enjoyed exclusively anal or oral sex, no modern court would annul their marriage. And obviously childless straight couples also lack “any essential orientation to children”, since their sex is not a “generative act” or a potentially “generative act”.
Seriously – we’re down to IT JUST ISN’T again. There’s no reason given why the type of non-procreative sex a couple enjoys is any business of the government’s. And the continued fudging over the “well they COULD have children, you know, even if they couldn’t” line is just embarrassing.
I can see why these guys are so sought-after for their intellectual prowess.
UPDATE #2: They seriously wrote this paragraph, in defence of the line that we shouldn’t discriminate against infertile couples (as if that was actually what equality advocates were suggesting):
What is more, any marriage law at all communicates some message about what marriage is as a moral reality. The state has an obligation to get that message right, for the sake of people who might enter the institution, for their children, and for the community as a whole. To recognize only fertile marriages is to suggest that marriage is merely a means to procreation and child-rearing and not what it truly is, namely, a good in itself. It may also violate the principle of equality to which revisionists appeal, because infertile and fertile couples alike can form unions of the same basic kind: real marriages. In the absence of strong reasons for it, this kind of differential treatment would be unfair.
Welcome to what we’ve been saying, George. Finally you understand why it’s time for governments to remove unjustified gender discrimination from the Marriage Act.