1. Mandate for Abortion and Contraception

The jointly issued “interim final rule” regarding “preventive health services” requires nearly all private health plans to include coverage for “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” without co-pays or other cost-sharing— no matter whether the insurer, the employer or other plan sponsor, or even the woman herself objects to such coverage on the basis of religious or moral principles. Women may not receive, and insurers, employers and other plan sponsors may not provide, health coverage that is exclusive of such “services.” Never before has the federal government required private health plans to include such coverage.

Among the FDA approved “contraceptive measures” are drugs that, under certain circumstances, terminate the life of a human being at the embryonic stage of development. At least two of the drugs approved by the FDA under the rubric of “contraception” so function in some cases. They are more accurately labeled abortifacients.^[1] As a matter of basic embryology, the life of the human organism begins with the fusion of gametes—egg and sperm. And according to FDA labeling, “Plan B emergency contraception” (levonorgestrel, also known as “the morning-after pill”)—“may inhibit implantation by altering the endometrium.” In other words, Plan B may make it impossible for the newly conceived human being to embed herself into her mother’s uterine lining—a necessary condition of life support for the unborn child. In such cases, the embryo is destroyed prior to implantation.

Another FDA-approved form of “contraception” known as “Ella” (ulipristal, or the “5 day-after pill”), seems to pose an even greater danger to newly-conceived or even newly-implanted embryonic human beings. Ella is a “selective progesterone receptor modulator.” It may function pre-implantation by rendering the endometrium inhospitable to implantation for a newly-conceived embryo (like Plan B); it may also function post-implantation by depriving a living embryo of progesterone or by destroying the maternal component of the placenta. In both of these manners, Ella functions as an early abortifacient. Indeed, the FDA labeling for Ella states that the drug is contraindicated during pregnancy, citing animal studies showing its capacity to terminate a pregnancy. Furthermore, there is nothing to prevent the off-label prescription of Ella (or its purchase, should it become available, like Plan B, for sale over-the-counter) for purposes of terminating a known pregnancy. In short, the new “preventive services” mandate includes coverage for drugs used to kill an unborn child both before and after implantation. Many institutions and individuals (religious and secular) rightly condemn such killing as a grave injustice.

2. The Religious Exemption

The rule includes a very narrow religious exemption. Houses of worship are almost certainly protected, but all other religious ministries and institutions are almost certainly not. The exemption covers only: a “religious employer” that has the “inculcation of religious values” as its purpose; “primarily employs persons who share its religious tenets”; and primarily “serves persons who share its religious tenets.” Further, the employer must qualify as a church organization under two narrow provisions of the tax code. Religious institutions such as colleges and universities, as well as hospitals and charitable institutions that employ and serve the public (versus only co-believers) will be ineligible. Individuals, and religiously affiliated health insurers are also outside of the scope of the exemption.

Others have made the case to HHS that the religious exemption in the proposed regulations is unprecedented in its narrowness. Indeed, it is. Though copied largely from state laws requiring insurance plans to include prescription contraception, the proposed federal mandate is much more sweeping than any comparable state program. When you add to this picture that the new proposal would include “contraceptives” that act as abortifacients, then the radical nature of this looming invasion of religious liberty finally comes into full view.

The U.S. Catholic bishops—sponsors of the nation’s largest private charities—correctly observe that the new mandate “poses an unprecedented threat to individual and institutional religious freedom.” We would add that not even a Catholic parish’s grade school would be exempt from the new mandate to carry insurance that pays for some early abortions. These schools do not always “primarily serve persons who share [the employing religion’s] tenets.” Particularly in urban cores, Catholic schools might enroll a majority of non-Catholic students, often children from the most vulnerable racial and socioeconomic groups. Further, Catholic schools’ “purpose,” as required by the proposed regulation, is not solely “the inculcation of religious values.” That is one purpose of a Catholic school. But the main or “primary” purpose of a Catholic school is the same as that of any other school: providing an education. Other religious institutions, universities in particular, regard it as part of the core of their mission and identity to be and act in the world as a witness and servant to others, all others, regardless of their beliefs, circumstances, or station in life. This almost always results in the employing and serving of persons who do not share the same faith as the institution’s founders. This vision of ministry and identity, under the proposed rule, would disqualify a religious institution from taking advantage of the religious exemption.

Yet throughout American history, religious institutions have been the leading private providers of charitable, educational, and medical services to the poor, always serving those they felt were the most marginalized populations of their day—whether slaves or freed slaves, new immigrants, Native Americans, prisoners, or persons with AIDS. The quality and efficiency of their care, and the compassion with which it has been delivered, are often noted. Regularly, the populations served did not share the faith of the religious institutions who took up their cause

Given their solidarity with the dispossessed, religious leaders of every denomination have, throughout American history, also effectively led a variety of human rights’ movements, including the movements for abolition of slavery, for civil rights, for campaigns to end poverty, and for justice for immigrants, the elderly, those with disability, and the unborn. The presence of religious leaders and religious institutions in the public square—and not behind the walls of their monasteries, churches or homes—is an inescapable aspect of America’s history of progress and prosperity.

The proposed exemption disregards this history by limiting its application to employers who do little (or nothing) but preach to the convinced. This, apparently, is what the authors of the new regulations intended when they adopted the stringent definition of “religious employer,” drafted by the American Civil Liberties Union (ACLU) in connection with California’s contraception mandate. This is the very same ACLU that recently urged HHS to force all Catholic hospitals to perform abortions under the guise of necessary “emergency treatment.” Recent history demonstrates that many religious employers will exit from the marketplace rather than abandon their mission to offer faithful witness in the course of providing service. Those behind the new regulations must be willing to accept this effect, and perhaps even desire it.

This is revolutionary. Never before in American history has any administration—state or federal—been so willing to force religious institutions out of business. In fact, at our founding, and for a long time thereafter, most education, healthcare, and social services were provided by the churches, not by the government. In most cases public authorities assisted the churches by some form of financial or material aid. Even when, after the Civil War, governments began more earnestly to set up their own schools and to provide some other charitable services directly, the norm remained what it had been: a productive partnership between religious and civil providers, with no preference for any religion and with coercion of no one’s conscience, all directed to the achievement of the common good. This was surely the pattern up to and beyond World War II.

In fact, it was not until the 1960s, and then largely under the influence of Supreme Court decisions imbued with a rabid secularism, that this long partnership came in for wholesale criticism. Only then did American elites begin to think of systematically privatizing religion, of shutting up faith within the walls of family, home, and church. Only in the 1960s did significant numbers of people begin to think that everything public—that is, all that is properly in the civil sphere—should be governmental.

With these proposed regulations, the Obama administration would turn back the clock, not only to this discredited intolerance, but beyond, and toward a repudiation of our whole constitutional and political tradition. The administration would restrict the public square to the government to an extent that would be anathema to the founders, and undreamt-of by any important public figure since.

3. Sexual Expression: The Elephant in the Room

It seems more than a little likely that the degree to which this administration is willing to silence or privatize religion is proportionate to its passionate commitment to the population and sexual freedom agendas of one of the administration’s closest allies, the Planned Parenthood Federation of America (“Planned Parenthood”)—the largest single abortion provider in the United States. It is Planned Parenthood that lobbied strenuously for precisely the coercive outcome represented by these proposed regulations. It is Planned Parenthood whose leadership is closely intertwined with the authors of the Institute of Medicine (IOM) report upon which these regulations are based. And it is Planned Parenthood’s former research affiliate, the Guttmacher Institute, that issued several of the studies cited in the IOM report as the basis of its false claims that easier access to birth control has reduced and will reduce our national rates of unintended pregnancies and abortions. It is also Planned Parenthood that—at a time of national economic crisis—has just received new federal dollars to replace the dollars recently taken from them by state legislatures wary of supporting such a prominent abortion provider.

It is well known that the various religious institutions sponsored by the Catholic Church do not provide contraception to their employees or their clients. The Catholic Church in the United States is also the most persistent and powerful voice against the legalization and normalization of abortion in America today. Its witness on these matters earns scorn from those “true believers” who continue to insist that abortion and contraception are the best response to high rates of nonmarital births and abortions, in the teeth of compelling evidence that both policies are associated with even higher rates of nonmarital pregnancies and abortions due to the manner in which they change the “markets” for sex and marriage. (See, Helen M. Alvaré, Abortion, Sexual Markets and the Law, in Stephen Napier, ed., Persons, Moral Worth, and Embryos: A Critical Analysis of Pro-Choice Arguments, 255, 261ff (2011)). Planned Parenthood is preeminent among such “true believers.”

With these new regulations, the administration has placed itself on the side of the Planned Parenthood worldview: an irrational commitment to unrestrained sexual expression, “insured” by easy access to contraception and abortion, no matter the cost to religious freedom or to the well-being of the adults and children involved. These regulations would enclose behind the walls of sanctuaries any and all dissenting religious voices on the matter of sexual restraint and respect for vulnerable human life. Those who today speak common sense on the matter of sexual restraint—backed by current and credible data—are the very persons and groups who would be silenced. Their reasoned arguments, and the witness of their lives, would no longer be available to those who do not already share their faith. Consequently, while religious institutions will suffer should the current “preventive” health care mandate take effect without amendment, there is a group that will arguably suffer even more: those Americans most in need of viewpoints dissenting from this new federal orthodoxy concerning human sexuality and the value of vulnerable human life.


Helen Alvaré is an associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute. Gerard V. Bradley is professor of law at the University of Notre Dame Law School. O. Carter Snead is professor of law at University of Notre Dame Law School. They write on behalf of the Witherspoon Institute’s Task Force on Conscience Protection.

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The argument we advanced for man-woman marriage in Part One of this article is sometimes obscured even by proponents of conjugal marriage. It is sometimes argued that the state’s interest in marriage is simply to ensure that as many children as possible are raised in “an optimal setting,” and that this interest justifies “restricting” marriage to opposite-sex couples. But the fact that intact homes are the optimal setting for child-rearing does not by itself justify a policy of recognizing only opposite-sex partnerships as marriages. For a good end (ensuring optimal care for children) would not justify the means (excluding same-sex “marriage”) if it could be shown that the means were unjust—and denying marriage to such couples, if they were able to form a true marital partnership, would be unjust.

If this argument is advanced as the central one—rather than as a secondary confirmation—then it is misleading. For, in that case, the impression is given that the state itself has created marriage—for the extrinsic purpose of child-rearing. In fact, however, marriage is indeed naturally oriented to and fulfilled by conceiving, bearing, and raising children, but not as to an extrinsic end—and this orientation belongs to marriage independently of any action on the part of the state. In a profound sense, marriage is a “pre-political” institution, albeit one that the law and the state rightly recognize, regulate, promote, and protect.

Moreover, if advanced as the main argument, the “optimal setting” argument locates the center of debate in the wrong place. For even if it could be shown that another type of alliance (for example, two men and a woman, religiously active families, or very wealthy families) would tend to produce better child-rearing outcomes, it would not follow that these alliances were also (or alone) real marriages; and the state’s duty not to confuse true marriage with other arrangements—as we will show—would still obtain. Hence the real ground for the state’s duty to restrict marriage licenses to opposite-sex couples—who are of the age of consent, and have other relevant qualifications—is not an extrinsic goal of marriage, but the actual nature of marriage itself. While the optimal setting argument has a confirming evidential force, advancing it as the central argument diverts attention from how marriage is most centrally related to procreation: marriage is intrinsically (and not merely incidentally or instrumentally) related to procreation.

The state does have a legitimate interest in promoting and regulating marriage; indeed, it is obligated to do so. The state exists in order to promote ends that (a) serve all within that society, and (b) can effectively and appropriately be pursued by political society (unlike ends that can best be pursued only by individuals, families, or voluntary associations). Such ends constitute the public good, and clearly include defending against external attacks, preserving internal order, facilitating transportation, providing a judicial system for the fair resolution of disputes, etc. But in virtually every political society, the promotion, protection, and regulation of marriage has been understood as part of the public good. This is partly because regulating marriage, and so distinguishing between who is and who is not married, is a task the state cannot escape. For, though marriage is more than a contract, it still is one (it is more, not less, than a contract), and so the state must adjudicate some disputes about marriage, inheritance issues, child custody, and property when spouses separate. For this reason, among many others, privatization of marriage is a practical impossibility. Further, it is abundantly clear that healthy marriages provide social benefits to all.

But the most important reason that the state should protect and promote marriage—including family, which is marriage in its fullest fruition—is that it is itself an irreducible human good, a distinctive and irreplaceable way in which human persons (men, women, and children) can flourish. Hence the strength or weakness of marriage as a social institution profoundly affects the well-being of everyone in a political society.

The state can effectively and appropriately promote marriage. It does so principally by influencing the public understanding of marriage through its laws and regulations. The public understanding and appreciation of marriage—the marriage culture in a given society—greatly influences people’s capacities to participate as fully and richly as possible in this intrinsic human good. Looked at another way, by conveying a gravely distorted view of marriage, the state can weaken and even undermine its members’ capacities for full and rich participation in this important aspect of human flourishing. So, it is not only appropriate but also morally obligatory that the state promote and protect marriage.

But to do so, the state must promote real marriage, not a counterfeit. The state must not obscure the nature of marriage by equating it with other arrangements which differ essentially from marriage. Suppose the state (through its educational curricula) endorsed disinformation and sophistry—counterfeits of the pursuit of knowledge. By doing so, the state would gravely harm the moral environment by which society helps or hinders the moral development and character of its members. The state would send the message that one need not respect the good of truth, that it is normal and acceptable to subordinate one’s reasoning, in disregard for truth, to the attainment of other ends—which, of course, is just what sophistry is. In that way, the state would gravely damage the interests and violate the rights of its citizens. By the same token, by re-defining marriage so as to include same-sex partnerships, the state would convey the message that marriage, instead of being an objective interpersonal union both good in itself and intrinsically linked to procreation, is a relationship principally defined by emotional connection, the exchange of sexual pleasure, and shared housekeeping—all important but nonetheless ancillary features or entailments of genuine marriage. This would undermine the public understanding of marriage and erode respect for the genuine human good of marriage. In a misguided effort to “expand” access to marriage, the state would make it more difficult for people to enter into and live out true marriages. For marriage is the kind of human good that can be chosen and realized only by persons who have some basic understanding of what it essentially is.

What, then, of the argument advanced by Justices Walker, Marshall, and others regarding infertile heterosexual couples? It should by now be obvious how weak this argument is, that it stems from a remarkably simplistic view of how marriage could be related to procreation. The basic argument is: if marriage were intrinsically oriented to procreation, then couples who cannot procreate (the sterile or elderly) could not be married; but they can be married; therefore, etc. No reason is ever given why one should think that the first premise (the if-then proposition) is true. In fact there are numerous reasons why this proposition could be false. And there is only one reason it could be true: namely, if marriage were—either as a community or as an institution—merely instrumental in relation to procreation, a relationship created simply as a means toward an extrinsic goal. But plainly, as we have shown above, it is not. The comprehensive, multi-leveled union of husband and wife is both intrinsically good and the kind of relationship that would be naturally fulfilled by enlarging into family. Since marriage, thus understood, is good-in-itself, and not a mere means, men and women can marry even if they do not, for any number of reasons, have children.

Thus, the familiar argument rehearsed by Justices Walker and Marshall, which asks how the institution of marriage can be primarily about procreation if infertile couples are still eligible to marry, is easily answered. The answer is that the institution of marriage is not primarily about procreation as an end or goal distinct from marriage. The institution is directly about the marital communion itself, which in its fullest fruition is family; and so it is about children, but principally as members of families. True marriage can exist even where children do not come of the union, but it always remains the type of union that would naturally be fulfilled by children, were they to come. And precisely such a relationship has intrinsic value for the men and women who commit to it as spouses and live it out.


Patrick Lee is the John N. and Jamie D. McAleer Professor of Bioethics and Director of the Institute of Bioethics at Franciscan University of Steubenville. Robert P. George is McCormick Professor of Jurisprudence at Princeton University. Gerard V. Bradley is Professor of Law at the University of Notre Dame Law School.

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Those who support defining marriage in such a way as to include same-sex partnerships deny that marriage has any intrinsic relation to procreation. When striking down Proposition 8 (which re-established conjugal marriage under California law after it had been invalidated by that state’s supreme court), Judge Vaughn Walker curtly argued: “Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse.” The same argument was advanced earlier by Chief Justice Margaret Marshall in her majority opinion in Goodridge v. Department of Public Health, the ruling that struck down Massachusetts’ conjugal marriage law; replying to the contention that marriage’s primary purpose is procreation, Marshall confidently replied that:

This is incorrect…. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married.

But this argument—that since infertile couples can marry, marriage is not oriented to procreation—is radically unsound.

In this essay we will show how to answer the argument denying an intrinsic link between marriage and procreation, and we will explain why the state is obliged, for the sake of moral truth and the common good, to recognize and protect marriage as a man-woman community naturally oriented to procreation. We will show that this argument presupposes a false dichotomy regarding marriage: that it must be either (1) a mere means in relation to procreation as its extrinsic end, or (2) a partnership that, though perhaps more emotionally intense than most friendships and typically marked by the presence of sexual relations, is nonetheless like other forms of friendship inasmuch as it bears no intrinsic relationship to procreation. And we will describe a better understanding of marriage—one that is in fact historically embodied in our law and in the philosophical traditions supporting it. On this understanding, marriage is a sexual union of the type that is especially apt for, and would naturally be fulfilled by, having and rearing children together, but whose value, precisely as such a relationship, is intrinsic (as an irreducible aspect of integral human fulfillment) and not merely instrumental (as it would be if marriage were properly understood as only a means to procreation and the rearing of children).

The key is to understand the specific type of community marriage actually is—in particular, how it is bodily, sexual, and of a type that would naturally be fulfilled by procreation. In every society, we find something like the following type of relationship: men and women committed to sharing their lives together, on the bodily, emotional, and spiritual levels of their being, in the kind of community that would be fulfilled by procreating and rearing children together. That such a distinctive type of community—marriage—does exist in every society is undeniable. There are, of course other relationships similar in some ways to marriage. For example, men and women may cohabit, regularly have sex together, and view the possibility of having children as a possibly attractive optional “extra,” or perhaps instead as a burden to be avoided. Or, by contrast, two or more individuals may form an alliance for the sake of bringing up children—two sisters, for example, or several celibate religious men or women. But these relationships are not marriages, and no society recognizes them as marriages. Marriage is that type of community that is both a comprehensive unity (a unity on all levels of the human person, including the bodily-sexual) and a community that would be fulfilled by procreating and rearing children together. Moreover, there is an intrinsic link between these two aspects of the community; the comprehensive (and therefore intrinsically sexual) relationship is fulfilled by, and is not merely incidental to, the procreating and rearing of children.

These points can be clarified. First, the bodily, sexual aspect of the relationship is part of and is inherently linked to the other aspects of the marital union. The sexual communion of a man and a woman establishes a real, biological union—a one-flesh union is an accurate description of it—for in this act they are biologically a single agent of a single action. Just as an individual’s different organs—heart, lungs, arteries, and so forth—perform not as isolated parts, but in a coordinated unity to carry out a single biological function of the whole individual (circulation of oxygenated blood), so too in coitus the sexual organs of the male and those of the female function in a coordinated way to carry out a biological function of the couple as a unit—mating. Hence coitus establishes a real biological union with respect to this function, although it is, of course, a limited biological union inasmuch as for various other functions (e.g., respiration, digestion, locomotion) the male and female remain fully distinct.

Now, the human body is part of the personal reality of the human being, and not an extrinsic instrument of the conscious and desiring aspect of the self. So the biological unity just described can be a truly personal unity and a part (indeed, the biological foundation) of the comprehensive, multi-leveled (biological, emotional, rational, volitional) union that marriage distinctively is. When a man and woman make a commitment to each other to share their lives on all levels of their being, in the type of community that would be fulfilled by cooperatively procreating and rearing children, then the biological unity established and renewed in sexual intercourse is the beginning or embodiment of that community we know as marriage. Unlike other forms of friendship, the marital community is structured by norms of monogamy, exclusivity, and the pledge of permanence, partly because of the intrinsic link between it and procreation. The sexual communion of spouses is the bodily component proportionate to, indeed part of, the kind of multi-leveled personal community they have consented to in marrying.

Second, such a community is extended and naturally fulfilled by procreating and rearing children together. The child is the concrete fruit and expression of their marital commitment and their love for one another; indeed, each child born of the marriage is the union of the spouses made concrete and prolonged in time. So the cooperative rearing of their children does not establish a new type of relationship, but rather deepens and naturally fulfills the relationship that they have established precisely in marrying. Rearing children is to tend to the marriage, to cultivate its fruit, to serve the good of the parents’ marriage by and through each act of service to each child. As a form of human relationship, marriage is indeed, then, intrinsically oriented to procreation—but not as a mere means in relation to an extrinsic end. The union of the spouses to one another in a relationship whose distinctive structure is what it is because of its aptness for procreation and the rearing of children is no mere instrumental good, but is rather good in itself—an intrinsic fulfillment of those united in the relationship. And it is for this reason that a marriage is and remains a marriage—a true marriage—even if procreation does not result and even if the spouses know that it will not result. With or without children, spouses are in a relationship of the type that is especially apt for procreation and would naturally be fulfilled by their having and rearing children together—their children (if they were to have children) would be embodiments of their marital communion. The marital communion of the spouses is good in itself, and as such provides a non-instrumental reason for conjugal relations, whether or not they are capable of conceiving children; but it is also naturally fulfilled when it becomes part of a larger community, the family.

Given these two points regarding the nature of marriage, it is clear why marriage is the union of sexually complementary spouses. Same-sex partners, whatever the character or intensity of their emotional bond, cannot form together the kind of union that marriage is. To marry, a couple must, in principle, be able to form a real bodily union—not just an emotional and spiritual union. Same-sex couples are unable to do this: the sexual acts that persons of the same sex can perform on each other do not make them biologically one, and so cannot establish the bodily foundation for the multi-leveled union that is marriage. And to marry, a couple must form the kind of communion that would be naturally fulfilled by conceiving and rearing children together. Same-sex couples cannot form this type of union: they (two or more) can form sexual arrangements, and can also form alliances for child-rearing, but the one relationship is distinct and not inherently linked to the other.

Also, given these points about marriage, it is easy to see that infertile opposite-sex couples can form a true marital union. They are able to fulfill the two essential conditions just mentioned for marrying. First, infertile opposite-sex couples can form a biological unit—they can mate (that is, they can perform the kind of act that results in procreation when conditions extrinsic to their conduct obtain). Second, infertile opposite-sex couples can form the kind of bodily, emotional, and spiritual union of precisely the sort that would be naturally fulfilled by procreation and rearing of children together—even though, in their case, that fulfillment is not reached.

It is sometimes objected that infertile couples cannot biologically unite, since their act is not in fact capable of procreating—they cannot (it is objected) perform an act that is procreative in kind, which is necessary for a biological union. However, no couple can directly or simply choose to procreate. The only thing any couple can directly do regarding procreation is to perform the kind of act that will lead to procreation, provided other conditions extrinsic to their conduct obtain. (Thus, children are not products of their parents’ sexual acts: rather, parents should rightly view them as gifts that supervene upon their bodily expression of love in their sexual union.) So, opposite-sex couples who are infertile can perform precisely the same kind of act that fertile couples can perform. In both cases, they fulfill the behavioral conditions of procreation. And so the sexual intercourse of an infertile couple, no less than that of a fertile couple, unites them biologically: they mate, even though, in the case of the infertile couple, procreation will not result. In each case, their sexual act can consummate or embody their marriage.

So, the state’s granting marriage licenses only to opposite-sex couples is based on the nature of marriage and does not constitute unjust discrimination. The state grants a license to do X only to someone presumptively capable of doing X. It is no more unjust discrimination to deny marriage licenses to couples of the same sex than to twelve-year olds, to those already married, or to polyamorous groups of three or more sexual partners: in each case, the license is denied simply because the individuals in question are unable to form with each other the kind of union that marriage is.

(Article continued in Part Two, “Marriage and Procreation: Avoiding Bad Arguments.”)


Patrick Lee is the John N. and Jamie D. McAleer Professor of Bioethics and Director of the Institute of Bioethics at Franciscan University of Steubenville. Robert P. George is McCormick Professor of Jurisprudence at Princeton University. Gerard V. Bradley is Professor of Law at the University of Notre Dame Law School.

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Copyright 2011 the Witherspoon Institute. All rights reserved.

Holder’s announcement was greeted as breaking news. In one important sense, though, it was not news at all. Despite President Obama’s oft-repeated view that he “opposes” same-sex marriage, his Administration has been steadily advancing toward last week’s announcement since Obama was inaugurated. Administration lawyers have never defended DOMA in any convincing way; in fact, their fallacious arguments in “defense” of DOMA have done more to undermine its constitutionality than to buttress it. All along the Administration has unmistakably signaled that it held the conclusion that it finally forthrightly articulated last Wednesday.

The announcement is nonetheless a bit startling. The Attorney General himself admitted that the Justice Department “has a longstanding practice of defending the constitutionality of duly enacted statutes.” No one suggests otherwise about the enactment of DOMA. Congress passed it in conscious response to the first wave of legalized same-sex marriage, which came from Hawaii’s courts in the mid-1990’s. That effort failed. But to make sure that no state or the federal government would be conscripted into recognizing an aberrant form of marriage, the Senate voted 85-14 and the House 342-67 to enact DOMA. President Bill Clinton signed it into law on September 21, 1996. It settled what “marriage” means in federal law. DOMA also protected states from having to recognize the “marriages” of same-sex couples contracted in other jurisdictions (such as Massachusetts, which became the first state to recognize same-sex marriage, in 2004).

The Department’s practice has been—we were informed last week—conditional: it was predicated upon the availability of “reasonable arguments” which could “be made in” a statute’s “defense.” “Reasonable defenses” of DOMA are not the same things, however, as what the Attorney General called “professionally responsible arguments.” These, Holder conceded, are indeed “available.” (I have even offered some myself.) The Attorney General declared that none of these “responsible” defenses is “reasonable.” And so (Holder wrote in his letter to House Speaker Boehner) DOMA is the “rare case where the proper course is to forgo the defense of” a duly enacted statute.

The Department is nonetheless determined, Holder added, to continue “enforc[ing]” DOMA, notwithstanding its “unconstitutionality.” I guess this means that, come this April 15, same-sex couples may not check the “married, filing jointly” box on their Form 1040s. But this dodge puts all the relevant federal enforcement employees in a real bind. For their bosses would now have them treat same-sex couples arbitrarily, discriminating among “married” couples who wish to “file jointly” according to an unconstitutional law, a law which their bosses say has no basis in reason.

The immediate practical effect of Wednesday’s announcement appears to be limited to pending DOMA litigation in New York Federal court. Now Congress itself will have to intervene if DOMA is to be defended at all. The further effects may be considerably larger. Some judges and legislators—both state and federal—may be emboldened to embrace the position announced by the Administration. The Administration’s switch could, possibly, contribute to the decision of a Supreme Court Justice who is deeply concerned about discrimination against homosexuals and lesbians, but who is also traditional-minded when it comes to the institution of marriage. Such a Justice would be racked by ambivalence when he is called upon to confront squarely the question about same-sex marriage and the Constitution. Such a Justice would be named Anthony Kennedy.

Supporters of same-sex marriage have been toasting the President and each other for several days now. They are confidently predicting tidal waves of change in the wake of Holder’s announcement. Do not believe it. Talking that way is part of their script. Theirs is the tale often told of inevitable “progress,” the story in which same-sex marriage has an undeniable rendezvous with destiny. Theirs is the most Whiggish of Whig views of history. The reverse side of this view is, of course, that traditionalists are on the “wrong” side of history, and that the sooner they recognize the futility of resisting the irresistible the better off we shall all be. So The New York Times rushed to tell us last Friday that Republicans and conservatives more generally have largely reacted with a shrug. Evidently, we should all take our whuppin’ with similar equanimity.

The Justice Department’s proffered defense of abandoning DOMA is on a par with its previous “defenses” of DOMA—superficial, question-begging, fallacious. In his letter to House Speaker Boehner, Holder carried on at considerable length about changed circumstances which have “caused the President and the Department to conduct a new examination of the defense” of DOMA. Do not believe a word of it. It is all blather. It is all transparent pabulum which utterly fails to conceal the political ukase which Eric Holder was sent to publish last Wednesday.

Most tellingly, the Attorney General advanced no argument—“professionally responsible” or otherwise—for the Department’s rejection of (what he called) “procreational responsibility” as a justification for traditional marriage. He said curtly that “the Department has disavowed already” this justification as “unreasonable.” Maybe so. But to “disavow” an argument is not to refute it. And no one in the Obama Administration (or anywhere else, for that matter) has successfully refuted the claim that marriage is intrinsically connected to procreation, such that only opposite-sex couples may marry.


Gerard V. Bradley is Professor of Law at the University of Notre Dame Law School, a Senior Fellow of the Witherspoon Institute, and a visiting fellow at the Hoover Institution.

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Copyright 2011 the Witherspoon Institute. All rights reserved.

These arguments depend, of course, on some account of what marriage is that welcomes same-sex couples without qualification. Proponents of same-sex marriage argue that same-sex marriage is mainly about adult satisfactions—love, affection, intimacy, mutual support—just as (they say) it is for most opposite-sex couples. In these proposals, children are strictly optional, a matter of private judgment. Children have nothing to do with the definition of marriage, or with those features of marriage that attract the law’s attention and earn marriage the law’s protection and support. Make no mistake about it: any such account as this is normative, a claim (or set of claims) about what marriage as such and properly understood is really and essentially about. Anyone who makes a pro- same-sex marriage argument dependent upon the state’s obligation to be morally neutral about the meaning of marriage misunderstands the nature of the argument.

A successful counterargument depends therefore on a valid understanding of marriage which implies that same-sex couples are not suited to marry. (For reasons I shall not discuss here, I think that any successful argument must have to do with the nature of marriage itself. Denying persons who may in moral truth marry the legal opportunity to do so for extrinsic reasons of policy or prudence is, I think, unjust.) Almost everyone on both sides recognizes that there is one sure winner here: if marriage can be shown—coherently, reasonably—to be a procreative relationship, then same-sex couples cannot marry. For whatever else they can do, no same-sex couple can produce fruit of their union. They cannot bring into being children of their own.

Courts, commentators, and activists have made several arguments against the procreative understanding of marriage. Some of these arguments are silly or disingenuous, or both. Others deserve (and have received) careful and cogent responses. In this essay I wish to take up one gap in this set of responses. Here I aim to answer two questions: Why is it morally significant that children come to be as fruit of their married parents’ sexual acts? And, why is it legally important? In other words, on what grounds does public authority base marriage law upon the procreative understanding of marriage?

The most important moral truth about the family is the radical equality and mutuality at the heart of family relationships, which relationships have an unbreakable foundation in the way children come to be within marriage. When the spouses’ marital acts bear the fruit of children, the children are perceptively called (in law) “issue of the marriage.” For children embody in a unique way their parents’ union. Just as the married couple is often referred to as two-in-one-flesh, so too each of their children is the two-of-them-in-the-one-flesh. Each child just is their union, extended into time and space, and thus into human history and into the whole human community. The parents can see in each of their children an unsurpassable reflection of them as a unity, that is, of their identity not as Jack and Joan but as the two-of-them-as-one flesh—literally.

Because all the married couple’s children come to be in and through the same act—separated only by time and perhaps by space—each child is equally and wholly the image of his or her parents’ unique union. All the children are, one compared to the others, equally and wholly the offspring of the same parents. Mother and father are equally and wholly parents of each child, in whom they see (literally) so many unique (but nonetheless identical, in the way just described) expressions of their own union. The siblings’ family identity is just that: a matter of identity. In an extended but profound sense, all of the couple’s children are (as it were) twins.

This matrix of familial equality, mutuality, and common identity is the wellspring and ground of love, duty, loyalty, care-giving—the whole moral culture of family life. The lifelong and unbreakable chords of fealty and relatedness which family members possess, one for the others, and which even distance and alienation never quite erase, depend upon it.

This biological common core is reflected all across our everyday lives. We see it in action every time someone announces the resolve to re-connect with his or her long-gone father. We see it in the face of every person who is reunited with a sibling long separated. We see it in our language. One to whom we become especially close is “like a brother” to us. The aunt or even an unrelated family friend who raised us is like “a mother,” and may even be called “mommy.” We see it in perhaps the most arresting image delivered to humankind, that of God as “Abba,” “our Father.”

The sublime equality and mutuality endemic to the family is neither mysterious nor dreamily metaphysical, and it surely is not so speculative as to be somehow beyond the state’s ken. It is no more subtle or beyond the state’s concern than is the correct judgment that the factor of equality of marital friendship lies at, or very near, the heart of the state’s legitimate judgment that polygamy is not supportable, even to the point of making criminal a person’s attempts (indeed, rendering their acts merely attempts) at plural marriage.

We can now see why the law has recognized marriage as morally normative for having children. The law has also recognized that marriage is normative for sexual activity, precisely in order to protect and preserve the valuable relationships that constitute the family. Incest is forbidden to protect the sibling relationship from ruin by sexual attraction and activity, and to forestall the grotesque prospect of there someday being “issue” of the issue. Legal bans on marriage within certain degrees of consanguinity enforce this taboo: if there is no possibility of sibling marriage (for example) then there is much less prospect of sibling sexual attraction and activity. Adultery is forbidden (though such prohibitions are not, as a rule, enforced) to promote the fidelity that defines spousal love. Fornication has historically been forbidden as a crime against marriage, and not for the sake of meddlesome moral paternalism, but because fornication breeds illegitimacy.

The metaphysical and philosophical structure of the family is a standing moral corrective for the cultural (and legal) distortions of the family which are all too familiar to students of history and current events: subordination of wives to husbands; parents’ treatment of children as extensions of their own plans and desires, almost as their property; children’s indifference to their parents who vouchsafed them life and whose marriage they (the children) embody. Recovering and burnishing the truth about the family is the sure first step towards genuine reform of family practices.


Gerard V. Bradley is Professor of Law at the University of Notre Dame Law School and a Senior Fellow of the Witherspoon Institute, where he is the Director of the Center on Religion and the Constitution. Professor Bradley sits on the editorial board of Public Discourse.

Copyright 2009 The Witherspoon Institute. All rights reserved.

Let me explain. The “pro-life” position consists, basically, of these two propositions. First, that people begin at conception, so that to kill anyone from conception onwards is to kill a human person. Second, that it is wrong–morally wrong–to intentionally kill any innocent person. Neither proposition is about religious faith. No one needs religious faith to see and to say that both of these propositions are true. You can figure out when people begin, for example, by reflecting philosophically on scientific facts about human reproduction and development. And you can figure out that killing is wrong by reflecting upon the basic principles of justice-the natural law-which, at least according to Saint Paul, is inscribed upon your heart. Or you can consult almost any secular or religious moral code, or almost any society’s civil law-including our own.

It won’t do to say that one is “pro-life” because one views abortion with profound misgivings, or because one regrets that so many abortions occur and that the law should work to make it more rare, or because abortion is, in some sense, wrong and evil. Abortion is all these things. But abortion is much more than all these things. In an abortion someone who has the same right not to be killed that everyone else has, is killed. So abortion isn’t just an unfortunate event, but it is morally wrong because it deprives a human person of his right to life-and thus we need to enact laws that protect the right to life for all people. This is the “pro-life” position I have in mind in asking under what circumstances is the “pro-life” voter morally justified in voting for a “pro-choice” candidate.

What about the “pro-choice” position? Is it really the case that someone who is “personally” “pro-life” could coherently be politically “pro-choice”? Is it really the same thing as being “pro-abortion”? Well, it is true that a “pro-choice” candidate for public office may never advise any particular women to have an abortion. The “pro-choice” candidate may even find abortion extremely distasteful and, perhaps, abhorrent. But the surgical procedure we call abortion is not the only subject matter of the “pro-choice” position. “Pro-choice” is also, and it is necessarily, a position about what public policies and laws we should have about abortion–specifically, whether abortion should be something women are free to choose, or not. “Pro-choice” is one answer to that policy inquiry. It is the answer that the legal protections which protect most of us from being killed should not protect all of us from being killed. Some people–the unborn–are to be exposed to deadly violence without legal aid or redress. And, so, just as ante-bellum Americans who refused to own slaves were nonetheless correctly called “pro-slavery”–because they affirmed the legal right of others to do so–Americans who today affirm the legal right of a women to have an abortion could correctly be called “pro-abortion,” even if they judge abortion an option unworthy of their own choice.

This is the “pro-choice” position I have in mind in seeking to answer the question previously posed. This “pro-choice” position amounts to a grave injustice, one which “pro-choice” candidates necessarily embrace, support, and choose; it is precisely what being “pro-choice,” at a minimum, actually means. Anyone who votes for a “pro-choice” candidate becomes morally responsible for this grave injustice. The “pro-life” voter who votes for a “pro-choice” candidate materially–that is, in fact and as a matter of foreseeable effect–cooperates in sustaining this country’s radically defective legal structure about abortion. Take the case of presidential elections. Voting for a “pro-choice” candidate helps him to win the presidency, and helping him to win the presidency is, perforce, to help him make his declared “pro-choice” policies a reality (or, to the extent such policies are in place, to help him to block efforts to repeal them). The “pro-life” voter who votes for a “pro-choice” candidate knowingly declines to do what he or she can do to legally protect the unborn from being killed-namely, to vote for a “pro-life” candidate (if one is running).

The Golden Rule

Then under what circumstances is it morally permissible to vote for a “pro-choice” candidate, particularly one who promises not just to uphold the abortion license, but even to expand our unjust structure by introducing government funding of abortion and by removing some brakes upon abortion, such as parental notice laws?

To answer this question we have to consider the matter from the perspective of those who suffer the foreseeable harm resulting from the perpetration of “pro-choice” policies–the unborn who are killed. Then we have to apply the great moral principle we call the Golden Rule: Do unto others as you would have them do unto you. The Golden Rule makes us walk in the others’ shoes, makes us count the stranger and his or her well-being just as one welcomes the benefits and avoid the harms of what one does when the beneficiary or victim is oneself or someone near and dear. The Golden Rule pushes back particularly hard against our tendency to discount the harms we visit upon those we do not know–those who cannot object, those who cannot offer effective resistance. The Golden Rule steers us to the morally right choice despite the fact that, though we may believe everyone is equal, we do not treat them that way. The Golden Rule leads us to be fair to everyone whose lives and fortunes are foreseeably affected by our actions-as justice requires.

This question about the fairness of lethal side-effects is in the news almost every day now. Not because of abortion, but because of U.S. military operations in Iraq and Afghanistan. Almost every day there is news of an American air attack or ground operation which results in a substantial number of non-combatants’ deaths, or there is news about a post-mortem analysis of an earlier deadly attack. (Some days there are both.) The basic scenario and the recurring moral question are always along these lines: suppose that there is a wedding feast in Northwest Pakistan. Among the 100 guests are two high level Al-Qaeda operatives. The military reality is that any attack intended to kill those two puts everyone present at grave risk of being killed. Would it be morally right to launch the airstrike, thus endangering 98 innocents to get two who are not?

I do not know for sure whether, all things considered, the strike should be ordered. I do know, however, that any right answer to the question must go through the Golden Rule, precisely so that we do not unfairly off-load fatal effects upon people who are not like us. Precisely to avoid that form of unjust partiality towards ourselves and those like us, we must ask: would we order the airstrike if the feast were in Zurich? Or in Dublin? Or if the feast were taking place in South Bend, Indiana (or your home town)? If the answer to any of these questions is “no” then it is pretty clear that, if we nonetheless order the strike in Pakistan, we would not be acting in accordance with the truth that every innocent has an equal right not be killed. We would not be acting in accord with the Golden Rule.

We need to apply the Golden Rule in a very similar way to the question: when is it morally right to vote for a “pro-choice” candidate. I propose to do so by testing the three best arguments that “pro-life” voters voting for “pro-choice” candidates have made to justify their decision.

Argument 1: “Attack the Root Cause of Abortion”

 

This argument proposes to leave the unjust legal structure about abortion in place until some distant future time when, it is hoped, abortions will be so rare that prohibiting them will make sense. This argument proposes to now seek a reduction in the number of abortions performed annually, from the present 1.2 million to some lower number. The argument proposes to accomplish the reduction by attacking what are said to be abortion’s “root causes,” mainly, a widespread lack of proper health care and income supports. These proposals include better pre-natal maternal care, better pediatric care, and more income supplements for the poor. The moral question is whether this proposal is fair to the unborn? And that entails applying the Golden Rule.

To do that we must take a different example of the same basic proposal, an example which substitutes a different set of people called upon to pay the price of doing nothing to legally restrict a certain class of deadly assaults. Take the example of domestic violence. Suppose that approximately 1.2 million American women are killed each year by domestic violence. Suppose further that a Presidential candidate said the following: “Friends, I think we must stop wasting resources prosecuting domestic violence. Let us get the law out of the picture. Maybe someday we could arrest men who kill women at home. But that day is not today, for anyone can see that arrests and convictions have not slowed the rate of domestic violence very much at all. Besides, we are talking about private family matters where people make hard choices. Let us instead join together and attack the root causes of domestic violence, causes which have to do with ignorance and poverty. I propose therefore to give angry men jobs and money to attend anger management classes. And I think we should start teaching all of America’ children early on that every man and woman deserves to be treated well.”

Anyone who refuses to vote for this candidate but who would vote for a “pro-choice” candidate is, at least presumptively, guilty of failure to apply the Golden Rule.

Argument 2: “He’s Better on Other Issues”

Some people who describe themselves as “pro-life” support “pro-choice” candidates without placing any faith in the reduce-the incidence-of-abortion idea. These people instead maintain that the “pro-choice” politician’s positions on other issues, such as the environment, taxes, education, are so far superior to those of a “pro-life” alternative, that voting for the “pro-choice” politician–notwithstanding the harm his abortion policies would do–is the right thing. These people often say that the virtues of his other positions supply a “proportionate” reason for voting for a “pro-choice” candidate.

The question which these people must ask themselves is this: Would they vote for a “pro-choice” candidate on the strength of his preference for more government-provided health care than his rival proposes in his comparable plan, if doing so exposed their children to mortal danger? Suppose the candidate’s commitment to a policy of “choice” referred, not to so many tiny and invisible people, but instead to hundreds of thousands of immigrants, or to the same number of prisoners or mentally handicapped or physically infirm people. Would they still support that candidate, even if his policies on energy, taxes, and employment were superior to his rival’s?

A vote for a candidate who favors “pro-choice” policies on abortion by someone who does not answer the preceding questions “yes” does not, I think, satisfy the Golden Rule.

Argument 3: “Women’s Equality”

“For two decades of economic and social developments people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their control of their reproductive lives.”

This cluster of assertions by three members of the Supreme Court in the 1992 Planned Parenthood v. Casey decision tracks quite closely a very widespread conviction cited in support of “pro-choice” candidates. The central claim is that laws guaranteeing “choice” about abortion are instrumentally indispensable to women’s equality. Now, I do not think for a moment that the claim is true. But for this analysis I shall grant the claim, and then apply the Golden Rule to test the justice of the position articulated.

There is no need to imagine cognate claims, to which we must hypothetically apply the Golden Rule. History and current affairs supply countless examples of societies where some of its members have obtained equality for themselves by exploiting others of its members. Sometimes the numerator (those who gain) is larger than the denominator (those who suffer). Sometimes it is the other way around. In either event the basic moral question is the same. And there is little mystery about what just about everyone would say in response.

So, was it just for Spanish colonizers in the sixteenth century to obtain the satisfactions of life in Central America–where the price was paid in blood by immiserated Amerindians? Was it fair for English men and women three centuries later to enjoy the fruits of pastoral life–brought to them on the backs of dead Irishmen? A century-and-a-half ago the Supreme Court “facilitated”-indeed, helped to preserve-the equality of all white people. But does anyone today defend Dred Scott as a moral beacon?

If the answer to these questions is “no,” then one who takes the Golden Rule to be a principle of justice cannot vote for a “pro-choice” candidate on the strength of what the Casey Court proclaimed. And if the voter tempted to vote “pro-choice” refuses to apply the Golden Rule–as I have done here–than he is refusing to seek and to do justice.

Gerard V. Bradley is Professor of Law at the University of Notre Dame Law School and a Senior Fellow of the Witherspoon Institute, where he is the Director of the Center on Religion and the Constitution. Professor Bradley sits on the editorial board of Public Discourse.

Copyright 2008 The Witherspoon Institute. All rights reserved.