Considered as isolated acts, someone’s recreational use of narcotics or hallucinogenic drugs, for example, may affect the public weal negligibly, if at all. An epidemic of drug abuse, however, though constituted by discrete, private acts of drug taking, damages the common good in myriad ways. This does not by itself settle the question whether drug prohibition is a prudent or effective policy. But it does undermine the belief that the recreational use of drugs is a matter of purely private choice into which public authority has no legitimate cause to intrude.

Much the same is true of pornography. Even in defending what he believes is a moral right to pornography, Ronald Dworkin has identified the public nature of the interests damaged in communities in which pornography becomes freely available and widely circulates. Legal recognition of the right to pornography would, Dworkin concedes, “sharply limit the ability of individuals consciously and reflectively to influence the conditions of their own and their children’s development. It would limit their ability to bring about the cultural structure they think best, a structure in which sexual experience generally has dignity and beauty, without which their own and their families’ sexual experience are likely to have these qualities in less degree.”

In my 1995 book Making Men Moral and elsewhere, I have argued that Dworkin’s efforts to derive from the principle of equality a moral right to pornography never manage to overcome the force of the public interest in prohibiting or restricting pornography that he himself identifies. That interest is not, fundamentally, in shielding people from shock or offense. It is something much more substantial: the interest of every member of the community in the quality of the cultural structure that will, to a large extent, shape their experiences, their quality of life, and the choices effectively available to them and their children in a domain of human affairs marked by profound moral significance.

When we bring this reality into focus, it becomes apparent that the familiar depiction of the debate over pornography regulation as pitting the “rights of individuals,” on the one side, against some amorphous “majority’s dislike of smut,” on the other, is false to the facts. The public interest in a cultural structure—in which, as Dworkin says, “sexual experience has dignity and beauty”—is the concrete interest of individuals and families who constitute “the public.” The obligations of others to respect their interests, and of governments to respect and protect them, is a matter of justice.

It is in a special way a matter of justice to children. Parents’ efforts to bring up their children as respecters of themselves and others will be helped or hindered—perhaps profoundly—by the cultural structure in which children are reared. Whether children themselves ever get a glimpse of pornographic images in childhood is a side issue. A decent social milieu cannot be established or maintained simply by shielding children from such images. It is the attitudes, habits, dispositions, imagination, ideology, values, and choices shaped by a culture in which pornography flourishes that will, in the end, deprive many children of what can without logical or moral strain be characterized as their right to a healthy sexuality. In a society in which sex is de-personalized, and thus degraded, even conscientious parents will have enormous difficulty transmitting to their children the capacity to view themselves and others as persons, rather than as objects of sexual desire and satisfaction.

There is more to the picture. We know that a more or less unbridled culture of pornography can result in a sexualization of children that robs them of their innocence and even places them in jeopardy of sexual exploitation by adults. Can anyone honestly deny that we have ourselves witnessed a shameful sexualization of children in our own culture? The clergy child-abuse scandal is only the tip of an iceberg. The problem of pedophile sex tourism to places like Thailand is a dirty secret that will sooner or later break upon the American consciousness and conscience. Should we be surprised at such a thing? Think about the sexualization of adolescents in contemporary music, television, movies, and commercial advertising. Consider the notorious Calvin Klein ads on New York City buses depicting young people in sexually provocative poses. And now Abercrombie and Fitch has taken things to the logically next step by peddling thong swimwear to twelve-year-old girls.

Of course, commercial advertisements are generally not defended on the ground that they constitute “art.” But pornographic art can present the same problem. Sometimes obscenity or pornography is defined in such a way as to exclude anything qualifying as “art” from falling into the category. I see no reason for this, whether we are considering the issue from the point of view of possible legal regulation or from some other perspective. Someone might argue that the artistic value of certain pornographic depictions—you may recall Robert Mapplethorpe’s photograph of a bull whip in a rectum—provides a reason (or additional reason) to immunize it from legal regulation. But such depictions remain pornographic, and their negative impact on public morality cannot be denied. Moreover, it is difficult to see how any degree of artistic merit could justify the insult to morally conscientious taxpayers when they are forced to pay for pornographic depictions.

Art can elevate and ennoble. It can also degrade and even corrupt. Whatever should be done or not done by way of legal restriction of pornographic art, we ought not to make things easy on ourselves by pretending that art cannot be pornographic or that pornographic art cannot degrade. Nor ought we to avert our gaze from the peculiar insult and injustice involved in the government funding of pornography.

There are real and substantial human and personal interests competing with those desires or interests we label “freedom of expression” when it comes to the question of art and pornography. If we, as a society, are to decide against the former interests—particularly if we are to do so categorically—we should face up to what we are prepared to sacrifice, particularly when it comes to the well-being of children. And if judges are to impose a decision against these interests on a public that views the matter differently, they should shoulder the burden of providing a legal and moral justification for doing so.

It will not suffice to make mere appeals to “established constitutional principles,” or to the fact that a right to free speech is enumerated in the constitutional text while interests competing with it in the case of pornography are not mentioned. The truth is that so-called established constitutional principles on free speech and pornography are, at best, weakly justified in the cases. A bare reliance on the mere fact of an enumeration of a right to free speech will simply confirm the validity of the arguments advanced by Hamilton and other founding fathers against the Bill of Rights—namely, that the enumeration of certain rights would distort the scheme of liberty established in the body of the Constitution by miseducating Americans about the nature of constitutional government and the moral substance of their rights.


Robert P. George is McCormick Professor of Jurisprudence at Princeton University and sits on the Editorial Board of Public Discourse. This essay is adapted from remarks he delivered earlier this month at a conference honoring John Finnis at the University of Notre Dame.

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Although that is not a great deal of time, it did allow us to dig deeper into the candidates’ understandings and convictions than is typical in presidential debates. We eschewed questions designed to make the interrogator look smart and the candidate look stupid. Our goal was not to embarrass anyone. By the same token, the candidates were informed that we would not accept stump speeches or talking points.

To their credit, the candidates took that warning to heart. And so we learned, and I believe those viewing the forum on CNN or at TownHall.com learned, quite a bit about how the candidates understand the principles at the foundation of our civilization and Constitution, and how each would honor those principles in addressing the daunting—in some cases unprecedented—challenges we as a people face today.

Senator DeMint, focusing on the national deficit, the debt crisis, and the poor performance of the economy under President Obama, pressed the candidates on their beliefs about the Constitution’s limitations on the scope, size, and intrusiveness of the federal government. Here we expected and found a large measure of agreement. All the candidates stressed the need to shrink the national government to bring it within its constitutional bounds and to eliminate burdensome levels of taxation and regulation that impede economic growth and large-scale job creation. We had hoped for some specifics—since it is easy to praise limited government as an abstract ideal, but difficult actually to name which agencies or programs would be abolished or trimmed—and we did manage to get a few.

Congressman King’s questions focused on what George H. W. Bush famously called “the vision thing.” The congressman asked, for example, “Is America still Ronald Reagan’s (and John Winthrop’s) ‘Shining City on a Hill’?” and “What is your view of the next stage in America’s destiny, and what is your plan for getting us there?” Again, there was wide agreement that America, as a beacon of freedom in the world, is a truly exceptional nation with a special destiny. There was also agreement that the fulfillment of that destiny depended on fidelity to the principles of limited government, the rule of law, individual liberty, civic virtue, the market economy, respect for the integrity of institutions of civil society, equality of opportunity, and personal responsibility.

When my turn came, I asked each candidate a question designed to elicit their reflections on three issues of critical concern to me and many of our fellow citizens: (1) our obligations to human life in the era of Roe v. Wade; (2) the relationship of federal to state power in our federalist system when it comes to protecting basic rights; and (3) the options available in the face of judicial edicts that violate constitutional principles, as the Roe decision infamously did, by usurping the authority of the people acting through their elected representatives.

Here is what one commentator referred to as my “electric question”:

Many believe that we need a constitutional amendment to overturn Roe v. Wade. However, Section Five of the Fourteenth Amendment expressly empowers the Congress, by appropriate legislation, to enforce the guarantees of due process and equal protection contained in the Amendment’s first section. As someone who believes in the inherent and equal dignity of all members of the human family, including the child in the womb, would you propose to Congress appropriate legislation, pursuant to the Fourteenth Amendment, to protect human life in all stages and conditions?

To the surprise of many, the first three candidates—Michele Bachmann, Herman Cain, and Newt Gingrich—all said “yes.” Ron Paul said “no.” And Mitt Romney said “no, but . . .”

Conservative blogger Jennifer Rubin was annoyed by my question and appalled by the affirmative answer given by Bachmann, Cain, and Gingrich. I had, she opined, sent the candidates off in pursuit of a “lark”—the idea that abortion could be restricted without the Supreme Court reversing itself on Roe v. Wade. Worse yet, I was inviting them to endorse “lawlessness”—and they foolishly accepted the invitation! She praised Romney—no mention of Paul—for being “adult” enough politely to decline to go along with so absurd and dangerous an idea.

Well, now, let’s look at what we have here.

Jennifer Rubin supposes that when the Supreme Court hands down a ruling, however lawless it may be, that ruling is now the law and, as such, binds the other branches of government. For the president and Congress to refuse to treat the Court’s Diktat as controlling their actions would be unconstitutional and thus lawless. This view, known as judicial supremacy, is nicely described by one of its most notable critics, constitutional law scholar Gerard V. Bradley:

If the Supreme Court says that the Constitution requires this, that, or the other thing (perhaps having discovered it lurking in “penumbras formed by emanations”), then, damn it, that’s what the Constitution requires, and short of a constitutional amendment or the Court reversing itself there is, in all instances, nothing anyone can do.

Jennifer Rubin is hardly alone in endorsing (or simply assuming the unquestionable validity of) judicial supremacy. It is a view widely held these days, especially among defenders of liberal judicial activism (Rubin herself is not one of those, by the way), but it was not the view of the American founders or of Lincoln. And, as Professor Bradley has observed, that should count pretty heavily in favor both of my question and an affirmative answer to it in a presidential forum devoted to exploring America’s founding principles.

Nothing in the Constitution itself confers upon the Supreme Court supremacy in constitutional interpretation. Even those founders, such as Hamilton, who interpreted the document as implying a power of judicial review (the Constitution does not expressly confer such a power) did not interpret that power as establishing the supremacy of the judicial branch over the others. Nor is judicial supremacy consistent with the structure or logic of the system of government established by the Constitution. It is true that under Article III of the Constitution the Supreme Court is supreme over the “inferior” federal courts, but that does not mean that its usurpations of the powers assigned by the Constitution to the other branches of government, when they occur, must be treated by the president and Congress as beyond challenge.

As I pointed out at the Palmetto Forum, Abraham Lincoln could not have been clearer in his rejection of judicial supremacy or more forceful in his denunciation of it as a mortal threat to republican government—government by and for the people, the type of government for which Lincoln was willing to fight a bloody civil war. The issue presented itself in his era in the context of a decision remarkably like Roe v. Wade. That was the Supreme Court’s ruling in the case of Dred Scott v. Sandford, denying the authority of Congress to restrict slavery in the federal territories and depriving blacks, even free blacks, of the rights of citizenship. Like Roe, Dred Scott was a case of extravagant judicial overreaching. It lacked any basis in the text, logic, or original understanding of the Constitution. It was a gross usurpation of the power of the people acting through their elected representatives in Congress.

In his First Inaugural Address, with the threat of Southern secession and civil war looming, Lincoln went out of his way to confront the Supreme Court on the issue:

[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their Government, into the hands of that eminent tribunal.

True to his words, Lincoln as president refused to treat the Court’s holding in Dred Scott as binding on him or the Congress, and he supported legislation (which was enacted) and took executive actions that directly contravened the holding. (Bizarrely, Jennifer Rubin seems to suggest that Lincoln’s statements regarding Dred Scott were somehow meant to placate the South and make secession less likely. This is the reverse of the truth. They were words that Lincoln, in fidelity to constitutional principles, felt he needed to speak, despite the fact that they would further enflame the South.)

Did Lincoln believe he was acting lawlessly? Did the American people believe he was acting lawlessly? Well, Lincoln certainly had his critics, and they accused him of all sorts of things, including tyranny, but few regarded his rejection of judicial supremacy as constituting lawlessness. That is scarcely surprising, for the Great Emancipator was merely echoing the author of the Declaration of Independence, Thomas Jefferson, who warned that the acceptance of judicial supremacy would place the nation “under the despotism of an oligarchy.” The ascendancy of judicial supremacy had to await the twentieth century; indeed, the Supreme Court itself did not get round to endorsing the idea until 1958 in the case of Cooper v. Aaron (a point noted by Newt Gingrich, who holds a Ph.D. in history, at the Palmetto Forum). Even now there are Supreme Court justices who reject it, precisely because it is inconsistent with the original understanding of the Constitution and the system of government it established.

Ron Paul responded to my question not by embracing judicial supremacy, but by denying that the 14^th Amendment authorizes Congress to legislate to protect the unborn. Interestingly, Paul himself has a perfect pro-life voting record—in Congress. In his view, however, the abortion question is one that the Constitution leaves ultimately to the individual states, not the national government.

In his exchange with me, Congressman Paul argued that reading the 14^th Amendment broadly enough to empower Congress to protect the unborn would be inconsistent with the 10^th Amendment—the constitutional provision reminding us that powers not delegated by the Constitution to the federal government are reserved to the states and the people. But the Constitution, in its 14^th Amendment, plainly does delegate to Congress power to enforce its guarantees of due process and equal protection. Congressman Paul, like the other Republican candidates, believes that the unborn, no less than those human beings at later developmental stages, are members of the human family—in other words, persons—entitled to the same protections as others. And he is right to believe it.

Governor Romney offered a nuanced answer to my question. He declined to commit to proposing legislation that would directly challenge Roe v. Wade, saying that to do so would provoke a constitutional crisis. At the same time, he carefully avoided endorsing judicial supremacy. He addressed the question as a matter of prudence, not of constitutional principle. He did not say, as Rubin later would, that legislation defying Roe would be “lawless.” Indeed, he said that he could not rule out the idea that a time would come when direct defiance of a lawless Supreme Court decision would be justified and necessary. He argued, however, that Roe could be handled by appointing constitutionalist judges who recognize it as a constitutional error and would reverse it. He pledged to appoint such justices.

In my own view, Romney is correct to say that Congress and the president should exercise prudence in deciding whether and, if so, when and how to challenge a lawless and usurpative Supreme Court ruling. In the case of Roe, this is a difficult issue—which is part of why I asked the question. For what it is worth, my own view of the prudence of the matter differs from the governor’s. So, for example, I thought it was right for Congress to enact a prohibition on partial-birth abortion, despite the fact that the Supreme Court had previously struck down such a prohibition as inconsistent with Roe v. Wade. (On the second try, as it happens, the Court—wiser in virtue of the addition of Associate Justice Sam Alito—upheld the prohibition.) In any event, I thought it important for the American people to have an opportunity to assess the ways in which those aspiring to govern think prudentially about how to vindicate core principles when they have been neglected or dishonored.

Like Congressman Paul, Governor Romney took the position that the protection of the unborn is ultimately a state responsibility. So, after the Court reverses Roe v. Wade, as he hopes it will, he would leave the issue in the hands of the states. Of course, that leaves the question of whether Congress should step in, pursuant to the Fourteenth Amendment, to protect the unborn in the event that some states decline to fulfill their responsibility to do so. Unfortunately, there was not time to explore this question with the Governor.


Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is founder of the American Principles Project, which sponsored the Palmetto Freedom Forum. This essay is the conclusion to the 2012 Election Symposium. Read all of the entries here:

• Ryan T. Anderson, “Liberty, Justice, and the Common Good:
  Political Principles for 2012 and Beyond” 
   
• O. Carter Snead, “Protect the Weak and Vulnerable:
  The Primacy of the Life Issue”
• Maggie Gallagher, “Defend Marriage: Moms and Dads Matter”
• Samuel Gregg, “Fix America’s Economy:
  Two Principles for Reform”
• Ed Whelan, “Defend Our Laws: Justice Matters”
• Helen Alvaré, “Uphold Conscience Protection:
  Religious Freedom’s Contribution to the American
  Experience and Threats to Its Survival” 
   
• Jennifer Bryson, “Promote Democracy:
  Start at Home but Don’t Stay at Home”
• Yuval Levin, “Heal the Sick and Reduce the Debt:
  The Moral Economy of the Healthcare Debate”
• Jane Robbins, “Empower Parents:
  Return Educational Policy to the States”
• Patrick Trueman, “End Child Pornography:
  Enforce Adult Pornography Laws”
• Laura Lederer, “End Human Trafficking:
  A Contemporary Slavery” 
   
• Robert P. George, “Reflections of a Questioner:
  The Palmetto Freedom Forum Revisited”

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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.

Few people, if any, did more than Bernard Nathanson to undermine the right to life of unborn children by turning abortion from an unspeakable crime into a constitutionally protected liberty. Someday, when our law is reformed to honor the dignity and protect the right to life of every member of the human family, including children in the womb, historians will observe that few people did more than Bernard Nathanson to achieve that reversal.

Dr. Nathanson, the son of a distinguished medical practitioner and professor who specialized in obstetrics and gynecology, had his first involvement with abortion as a medical student at McGill University in Montreal. Having impregnated a girlfriend, he arranged and paid for her illegal abortion. Many years later, he would mark this episode as his “introductory excursion into the satanic world of abortion.”

In the meantime, however, Nathanson would become a nearly monomaniacal crusader for abortion and campaigner for its legalization. And he would himself become an abortionist.

By his own estimate, he presided over more than 60,000 abortions as Director of the Center for Reproductive and Sexual Health, personally instructed medical students and practitioners in the performance of about 15,000 more, and performed 5,000 abortions himself. In one of those abortions, he took the life of his own son or daughter—a child conceived with a girlfriend after he had established his medical practice. Writing with deep regret in his moving autobiography The Hand of God (1996), Nathanson confessed his own heartlessness in performing that abortion: “I swear to you, I had no feelings aside from the sense of accomplishment, the pride of expertise.”

In the mid-1960s, with the sexual revolution roaring after Alfred Kinsey’s fraudulent but influential “scientific” studies of sex and sexuality in America, Hugh Hefner’s aggressive campaign to legitimize pornography and, perhaps above all, the wide distribution of the anovulant birth control pill, Nathanson became a leader in the movement to overturn laws prohibiting abortion. He co-founded the National Association for the Repeal of Abortion Laws (NARAL), which later became the National Abortion Rights Action League (NARAL) and is now NARAL Pro-Choice America. Its goal was to remove the cultural stigma on abortion, eliminate all meaningful legal restraints on it, and make it as widely available as possible across the nation and, indeed, the globe.

To achieve these goals, Nathanson would later reveal, he and fellow abortion crusaders pursued dubious and in some cases straightforwardly dishonest strategies.

First, they promoted the idea that abortion is a medical issue, not a moral one. This required persuading people of the rather obvious falsehood that a normal pregnancy is a natural and healthy condition if the mother wants her baby, and a disease if she does not. The point of medicine, to maintain and restore health, had to be recast as giving health care consumers what they happen to want; and the Hippocratic Oath’s explicit prohibition of abortion had to be removed. In the end, Nathanson and his collaborators succeeded in selling this propaganda to a small but extraordinarily powerful group of men: in the 1973 case of Roe v. Wade, seven Supreme Court justices led by Harry Blackmun, former counsel to the American Medical Association, invalidated virtually all state laws providing meaningful protection for unborn children on the ground that abortion is a “private choice” to be made by women and their doctors.

Second, Nathanson and his friends lied—relentlessly and spectacularly—about the number of women who died each year from illegal abortions. Their pitch to voters, lawmakers, and judges was that women are going to seek abortion in roughly equal numbers whether it is lawful or not. The only effect of outlawing it, they claimed, is to limit pregnant women to unqualified and often uncaring practitioners, “back alley butchers.” So, Nathanson and others insisted, laws against abortion are worse than futile: they do not save fetal lives; they only cost women’s lives.

Now some women did die from unlawful abortions, though factors other than legalization, especially the development of antibiotics such as penicillin, are mainly responsible for reducing the rate and number of maternal deaths. And of course, the number of unborn babies whose lives were taken shot up dramatically after Nathanson and his colleagues achieved their goals; and they achieved them, in part, by claiming that the number of illegal abortions was more than ten times higher than it actually was.

Third, the early advocates of abortion deliberately exploited anti-Catholic animus among liberal elites and (in those days) many ordinary Protestants to depict opposition to abortion as a “religious dogma” that the Catholic hierarchy sought to impose on others in violation of their freedom and the separation of church and state. Nathanson and his friends recognized that their movement needed an enemy—a widely suspected institution that they could make the public face of their opposition; a minority, but one large and potent enough for its detractors to fear.

Despite the undeniable historical fact that prohibitions of abortion were rooted in English common law and reinforced and expanded by statutes enacted across the United States by overwhelmingly Protestant majorities in the 19^th century, Nathanson and other abortion movement leaders decided that the Catholic Church was perfect for the role of freedom-smothering oppressor. Its male priesthood and authority structure would make it easy for them to depict the Church’s opposition to abortion as misogyny, for which concern to protect unborn babies was a mere pretext. The Church’s real motive, they insisted, was to restrict women’s freedom in order to hold them in positions of subservience.

Fourth, the abortion movement sought to appeal to conservatives and liberals alike by promoting feticide as a way of fighting poverty. Why are so many people poor? It’s because they have more children than they can afford to care for. What’s the solution? Abortion. Why do we have to spend so much money on welfare? It’s because poor, mainly minority, women are burdening the taxpayer with too many babies. The solution? Abortion. Initially, Nathanson himself believed that legal abortion and its public funding would reduce out-of-wedlock childbearing and poverty, though (as he later admitted) he continued to promote this falsehood after the sheer weight of evidence forced him to disbelieve it.

Within a year after Roe v. Wade, however, Nathanson began to have moral doubts about the cause to which he had been so single-mindedly devoted. In a widely noticed 1974 essay in the prestigious New England Journal of Medicine, he revealed his growing doubts about the “pro-choice” dogma that abortion was merely the removal of an “undifferentiated mass of cells,” and not the killing of a developing human being. Referring to abortions that he had supervised or performed, he confessed to an “increasing certainty that I had in fact presided over 60,000 deaths.”

Still, he was not ready to abandon support for legal abortion. It was, he continued to insist, necessary to prevent the bad consequences of illegal abortions. But he was moving from viewing abortion itself as a legitimate solution to a woman’s personal problem, to seeing it as an evil that should be discouraged, even if for practical reasons it had to be tolerated. Over the next several years, while continuing to perform abortions for what he regarded as legitimate “health” reasons, Nathanson would be moved still further toward the pro-life position by the emergence of new technologies, especially fetoscopy and ultrasound, that made it increasingly difficult, and finally impossible, to deny that abortion is the deliberate killing of a unique human being—a child in the womb.

By 1980, the weight of evidence in favor of the pro-life position had overwhelmed Nathanson and driven him out of the practice of abortion. He had come to regard the procedure as unjustified homicide and refused to perform it. Soon he was dedicating himself to the fight against abortion and revealing to the world the lies he and his abortion movement colleagues had told to break down public opposition.

In 1985, Nathanson employed the new fetal imaging technology to produce a documentary film, “The Silent Scream,” which energized the pro-life movement and threw the pro-choice side onto the defensive by showing in graphic detail the killing of a twelve-week-old fetus in a suction abortion. Nathanson used the footage to describe the facts of fetal development and to make the case for the humanity and dignity of the child in the womb. At one point, viewers see the child draw back from the surgical instrument and open his mouth: “This,” Nathanson says in the narration, “is the silent scream of a child threatened imminently with extinction.”

Publicity for “The Silent Scream” was provided by no less a figure than President Ronald Reagan, who showed the film in the White House and touted it in speeches. Like Nathanson, Reagan, who had signed one of the first abortion-legalization bills when he was Governor of California, was a zealous convert to the pro-life cause. During his term as president, Reagan wrote and published a powerful pro-life book entitled Abortion and the Conscience of the Nation—a book that Nathanson praised for telling the truth about the life of the child in the womb and the injustice of abortion.

Nathanson, long an unbeliever, continued to profess atheism for several years after his defection from the pro-choice to the pro-life side. His argument against abortion was not, he insisted, religious; it was based on scientific facts and generally accepted principles of the rights and dignity of the human person. In this, his views were very much in line with those of the great pro-life convert Nat Hentoff, a distinguished civil libertarian and writer for the liberal and secularist newspaper The Village Voice. But unlike Hentoff, who remains unconvinced of the claims of religion, Nathanson was gradually drawn to faith in God and ultimately to Catholicism by the moral witness of the believers among his newfound comrades in the struggle for the unborn.

As Nathanson frequently observed, it was not that he became Catholic and then embraced the pro-life view because it was the Church’s teaching. If anything, it was the other way around. Having become persuaded of the truth of the pro-life position, he was drawn to Catholicism because of the Church’s witness—in the face of prejudice Nathanson himself had helped to whip up—to the inherent and equal value and dignity of human life in all stages and conditions.

Nathanson was baptized and received into the Catholic Church in 1996 by Archbishop Dolan’s predecessor John Cardinal O’Connor in a ceremony at St. Patrick’s Cathedral. He chose as his godmother Joan Andrews Bell, a woman revered among pro-lifers for her willingness to suffer more than a year of imprisonment for blockading abortion facilities. Reflecting on her godson’s conversion, she said that Nathanson was “like St. Paul, who was a great persecutor of the Church, yet when he saw the light of Christ, he was perhaps the greatest apostle for the Gospel. Dr. Nathanson was like that after his conversion. He went all around the world talking about the babies and the evils of abortion.”

There are many lessons in Bernard Nathanson’s life for those of us who recognize the worth and dignity of all human lives and who seek to win hearts and change laws. Two in particular stand out for me.

First is the luminous power of truth. As I have written elsewhere, and as Nathanson’s own testimony confirms, the edifice of abortion is built on a foundation of lies. Nathanson told those lies; indeed, he helped to invent them. But others witnessed to truth. And when he was exposed to their bold, un-intimidated, self-sacrificial witness, the truth overcame the darkness in Nathanson’s heart and convicted him in the court of his own conscience.

Bernie and I became friends in the early 1990s, shortly after my own pro-life writings came to his attention. Once during the question-and-answer session following a speech he gave at Princeton, I asked him: “When you were promoting abortion, you were willing to lie in what you regarded as a good cause. Now that you have been converted to the cause of life, would you be willing to lie to save babies? How do those who hear your speeches and read your books and articles know that you are not lying now?” It was, I confess, an impertinently phrased question, but also, I believe, an important one. He seemed a bit stunned by it, and after a moment said, very quietly, “No, I wouldn’t lie, even to save babies.” At the dinner he and I had with students afterward, he explained himself further: “You said that I was converted to the cause of life; and that’s true. But you must remember that I was converted to the cause of life only because I was converted to the cause of truth. That’s why I wouldn’t lie, even in a good cause.”

The second lesson is this: We in the pro-life movement have no enemies to destroy. Our weapons are chaste weapons of the spirit: truth and love. Our task is less to defeat our opponents than to win them to the cause of life. To be sure, we must oppose the culture and politics of death resolutely and with a determination to win. But there is no one—no one—whose heart is so hard that he or she cannot be won over. Let us not lose faith in the power of our weapons to transform even the most resolute abortion advocates. The most dedicated abortion supporters are potential allies in the cause of life. It is the loving, prayerful, self-sacrificing witness of Joan Bell Andrews and so many other dedicated pro-life activists that softens the hearts and changes the lives of people like Dr. Bernard Nathanson.

May he rest in peace.


Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He sits on the editorial board of Public Discourse.

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Copyright 2011 the Witherspoon Institute. All rights reserved.

I have good news and bad news for Yoshino. The bad news is that he needs to get into these technical philosophical issues in order to show why his objections are effective, and because he does not do so, his argument is incomplete. The good news, much more important, is that if one digs into these philosophical recesses, it becomes clear that Yoshino has exposed to view a central reason why George’s argument is nearly impossible to believe.

So, having declared the need to do “fairly technical philosophical work” on Yoshino’s behalf, Koppelman rolls up his sleeves to dig. But what one finds in the “philosophical recesses” of our view, far from being (as Koppelman asserts) “nearly impossible to believe,” is the kind of principle cheerfully affirmed by the majority of analytic philosophers today—and ultimately relied on, we suspect, by Professor Koppelman himself. So the debate must return from those “recesses” to the open air—where we have posed numerous challenges, almost all of which Koppelman has repeatedly sidestepped in his comments on our article, including the latest.

Our article and replies to critics (including Koppelman) argued that the only account of marriage that makes sense of the institution’s widely acknowledged features allows for genuine marriage without children, but not without sexual complementarity. For it is sexual complementarity that makes possible the consummation of marriage as a true bodily union. The union of spouses in coitus, we showed, was deeply related to marital union’s widely recognized comprehensiveness and inherent orientation to children—facts without which norms such as permanence and monogamy cannot be accounted for. Thus, sexual complementarity (among other things) is necessary for marriage, but fertility (among other things) is not.

Koppelman’s “fairly technical philosophical” move is to reject the distinction between (a) features that a thing must have to be what it is, and (b) features that the same thing may but need not have to be what it is. He erroneously calls this “Aristotle’s essence/accident distinction.” (In fact, Aristotle did not equate necessary and essential properties.) In any event, Koppelman thinks that readers should reject this distinction wholesale, and with it therefore our view of marriage. What he offers against the distinction might charitably be called an argument from befuddlement: it is, he repeatedly says, “odd,” “weird,” and “archaic”; indeed, “nearly impossible to believe.”

That will come as a surprise to contemporary analytic philosophers, the majority of whom credit just such a distinction, affirming that things can have essential properties (quite apart from any discussion of marriage). In fact, important advances in the understanding and defense of essentialism have been made by some of today’s brightest lights in philosophy: With logical positivism now reduced to an early 20^th-century relic (and, in truth, nearly impossible to believe), such thinkers as Kit Fine of NYU, Saul Kripke of Princeton and CUNY, Hilary Putnam of Harvard, David Wiggins of Oxford, Stephen Yablo of MIT, and Alvin Plantinga of Notre Dame have embraced essentialism and contributed to a growing body of literature that explores (1) different versions of essentialism (e.g., “sortal” or “origins” essentialism); (2) competing ways of analyzing it (modally vs. non-modally); and (3) its implications for the natural sciences, personal identity, philosophy of mind, philosophy of science, philosophy of language, and much else.

Of course, by themselves these observations are no argument for the view that some things have some essential properties in a more than merely linguistic sense. Nor, needless to say, are they an argument for our view of marriage, which some supporters of essentialism share and others (including several named above) do not. But these considerations do make Koppelman’s dismissive rhetoric—“odd,” “weird,” “nearly impossible to believe”—seem less true of our approach than of Koppelman’s own somewhat amusingly overconfident dismissal of it. As for the idea that the distinction we (and most contemporary philosophers) draw is “archaic”: If historical pedigree undermines a view, then what should we make of the fact that Koppelman’s rejection of essential properties can be traced to a 14^th-century English scholastic monk, William of Ockham? The answer is clear: Nothing. Ideas should be judged on their merits.

So consider the merits of the idea that a given reality has some of its features necessarily, and not others—not just as a matter of the language we use, but as a matter of genuine fact.

• To be a sample of the kind of clear liquid found in lakes and rivers (i.e., water), a substance must be composed of H₂O molecules—though it need not boil at 100 °C (since boiling point varies by altitude).
• Any particular human being (say, Andrew Koppelman) could not have been born to different parents—though he could have gone into a different profession.
• To realize the human good of friendship with each other, two people must actively will each other’s good—though they need not be bowling partners.

None of these perfectly natural statements would make sense without the idea, attacked by Koppelman but embraced by most philosophers (both historically and currently), that some things have some essential features. Nor, again, is this merely a terminological issue. It’s not just that a human being born to different parents would have been differently named or unrecognizable as Andrew Koppelman. It’s that no one born to different parents, and thus with a completely different body, could have been the very human being that Koppelman is. Likewise, two people who do not will each other’s good are not just missing out on a label, “friendship”; they are missing out on a human good whose specific benefit or fulfillment is not available otherwise.

This is the kind of principle relied on in our argument that genuine and complete marriages have certain essential features (like sexual complementarity and a pledge of exclusivity) but that actual procreation is not one. In other words, Koppelman’s “digging” into “fairly technical philosophical” terrain will turn up a bedrock distinction common to most sensible worldviews. In fact, we imagine that Koppelman himself, like the rest of us, implicitly relies on it every day.

At points, Koppelman trades his shovel for a pickaxe, to aim at the distinction’s application specifically to marriage. But even these attempts do nothing to erode the grounds of our view.

First, Koppelman rejects our argument that marriage is inherently (not just incidentally) a sexual partnership sealed in coitus, which completes marital union to include every aspect of the spouses’ beings, including their bodies. On our view, in other words, non-marital friendships are characterized by a union of hearts and minds; but marriage, being a comprehensive union of persons, extends this unity to the bodily dimension. For our bodies are integral aspects of us as persons, not merely our extrinsic instruments. And in coitus, a man and woman’s bodies unite much as a heart and lungs unite within an individual—by coordinating together toward a single biological good (here, reproduction) of the whole (here, the whole couple).

Koppelman’s objection is that the coitus of infertile couples is no more a bodily union than any other sexual activity. But three times now he has silently passed over our reply to this: that just as a person’s stomach action retains its orientation to nourishment even when nourishment doesn’t occur (e.g., because of intestinal problems), so a man and woman’s intercourse is still coordination oriented to the single biological good of reproduction even when reproduction doesn’t occur (e.g., because of ovarian problems).

Without answering this defense of the point, Koppelman lodges a new objection that fares no better: namely, that our view would also mean that people administering and receiving CPR unite biologically. But it is clear that in this case, there is no mutual coordination toward a biological good of the parts as a whole, as there is in coitus and any form of real bodily union (e.g., among an individual’s organs, coordinated together for the life of the whole organism).

Second, Koppelman argues that nothing could be a necessary feature of marriage since marriage is nothing more than a social construct, malleable enough to include whatever sorts of unions, sealed by whatever sorts of acts, we deem most socially desirable. He thinks that our law’s longstanding practice of singling out the uniquely comprehensive unions completed and sealed by coitus can be explained away as a need for bright policy lines to prevent conception out of legal wedlock. But that answer fails to account for the 2,300-year-old philosophical tradition, originating independently of such policy considerations (and of Judaeo-Christian influence), that similarly distinguished the uniquely comprehensive unions consummated by coitus from all others. Indeed, the three great philosophers of antiquity—Socrates, Plato and Aristotle—as well as Xenophanes and the Stoic Musonius Rufus defended this view amid highly homoerotic cultures.

Especially clear is Plutarch’s statement in Erotikos that marriage is a special kind of friendship uniquely embodied in coitus (and not other acts, which Plutarch regarded as intrinsically shameful). Indeed, he called coitus a “renewal of marriage.” His insight into the value of the comprehensive union of persons uniquely embodied in marital acts also allowed Plutarch to see and explicitly affirm (in his Life of Solon) what Koppelman finds so baffling: that unlike non-coital sex, intercourse with an infertile spouse also realizes the good of marriage—something that all of the other mentioned ancient philosophers seemed to take for granted, even as they denied that other sexual acts could do the same.

The key is to see that while procreation is the biological good in virtue of which a man and woman’s intercourse unites them in mutual bodily coordination, this bodily union is an aspect of a comprehensive relationship valuable in itself and not just as a means to procreation. So the ancient philosophers saw what our legal tradition has long affirmed: marriage is a procreative relationship, but its intrinsic value remains whether or not children are born as the fruit of the spouses’ union.

Koppelman’s view has no resources to make sense of the philosophical tradition. But in attempting to explain away the parallel Western legal tradition, he does concede that the original public purpose of marriage law was not to oppress or exclude anyone, but to ensure that wherever possible children were reared by their father as well as their mother. His contention is simply that we should now expand its purposes to recognize same-sex partnerships.

Note two things about this concession.

First, it shows that when Koppelman insists that “any definition of marriage that excludes same-sex couples strikes [him] as already underinclusive,” he is simply measuring marriage law against a set of purposes that, for whatever reasons, he wishes it served, and not against the purposes that he admits it has served historically. In other words, Koppelman seems implicitly to concede that there is a rational basis for current marriage law—in which case, it passes constitutional muster. He also implicitly concedes that to recognize same-sex partnerships would be not merely to expand but to change the definition and meaning of civil marriage.

Second, while urging that we expand marriage law’s understood purposes, Koppelman says nothing to answer a consideration we raise against doing so: If the law encourages people to see marriage as an essentially emotional union that has no principled connection to organic bodily union or procreation, then marital norms (e.g., permanence, exclusivity, monogamy) will increasingly be treated as optional at best, and groundlessly restrictive at worst—at great cost to children and society generally. (After all, there is no reason that essentially emotional unions like friendships should involve pledges of permanence or exclusivity.) Koppelman also completely sidesteps our specific argument that he has no ground of principle for opposing “open marriages” and legal recognition of polyamorous sexual partnerships as marriages. That only reinforces our conclusion that no answer to this objection is possible.

Thus, two interventions in this debate which began with Koppelman’s intention to “dig” into “fairly technical” matters and illuminate the “philosophical recesses” of our view, ended up breaking no ground and exposing nothing damning or even damaging. Despite his initial projection of confidence and philosophical sophistication, Koppelman ignored almost every challenge we posed to his view. And the one distinction of ours that he chose to make the focus of his attack—deriding it as “archaic” and “nearly impossible to believe”—has turned out to be widely embraced by leading contemporary philosophers and difficult to deny on the merits. Thus, shovel in hand notwithstanding, Koppelman has struck no blows against the conjugal view of marriage or our philosophical defense of it.

Sherif Girgis is a PhD Candidate in Philosophy at Princeton University. Ryan T. Anderson is a PhD Candidate in Political Science at the University of Notre Dame. Robert P. George is McCormick Professor of Jurisprudence at Princeton University.

Copyright 2011 the Witherspoon Institute. All rights reserved.

Yoshino’s Flawed Defense

Our first reply challenged Yoshino to explain his own view of marriage, such that two men or two women could form what is truly a marital relationship. Yoshino: “I thought the answer would be intuitive: I want . . . marriage to widen to permit same-sex couples to enter it.” Translation: Yoshino wants marriage to be whatever it must be such that two men or two women could truly marry. But this is to dodge the crucial—and ultimately unavoidable—question: what is marriage? We had hoped Yoshino would offer what we had offered: a holistic defense of a view of marriage that accounts for marital norms that he wishes to retain, assuming that there are some (e.g., monogamy and sexual exclusivity).

But Yoshino sees his ad hoc, results-oriented approach as a virtue of his view because, he says, proponents of “trans-historical . . . definitions of marriage have often been time’s fools.” Since “we do not stand at the end of history today,” Yoshino thinks that “only time will reveal” what the moral ideals of “liberty, equality, and justice” require of our marriage law.

We reject this idea of history as a quasi-divine judge. We doubt that Yoshino himself believes that each generation is necessarily more enlightened than the previous one. Such a belief would play into the conservative caricature of progressivism’s alleged faith in the inevitability of moral progress. In any event, it is demonstrably false. Nor can the passage of time as such reveal new principles of justice or equality. History tells us what has happened, not what should happen. Though it might help us predict a policy’s effects on certain human goods, it cannot give us principles for evaluating those effects, or for determining the structure of those goods. But what we sought from Yoshino was his view of the normative structure (the defining norms) of the human good of marriage.

Finally, liberty, equality, and justice forbid imposing arbitrary norms. But the question of whether any norm (complementarity, permanence of commitment, monogamy) is essential to marriage and its public purposes, or irrelevant and therefore arbitrary, cannot be answered without a holistic view of the human good of marriage and the point of marriage policy. So to know what justice requires, Yoshino must first address the question that he resolutely refuses to answer, and to which no mere succession of historical events gives any hints: what is marriage?

All of this is clear from Yoshino’s only positive statement of what he thinks marriage does require: though he expects future demands for the recognition of multiple-partner unions, Yoshino would “currently . . . distinguish polygamous marriage primarily on the intuitive ground that one can give one’s full self to only one other person.” So Yoshino thinks that marriage requires a comprehensive union, and that this requires monogamy. We agree, as our article says explicitly. But history (in which monogamy is both observed and flouted) could not have yielded that conclusion. Only reasoning about what the human good requires of our natural and public institutions—moral and political philosophy—could. We have offered our reasons, according to which truly comprehensive union involves bodily union—and thus coitus, and thus sexual complementarity. Yoshino, who disagrees, refuses to make a counterproposal.

If all of this undermines even the one criterion for legal recognition (monogamy) that Yoshino embraces here, perhaps that is because he already rejected it elsewhere. In a 2006 statement entitled “Beyond Same-Sex Marriage,” some 300 self-described “lesbian, gay, bisexual, and transgender… and allied activists, scholars, educators, writers, artists, lawyers” and others declared their support for “legal recognition for a wide range of relationships, households and families,” including (among others) “committed, loving households in which there is more than one conjugal partner.” Kenji Yoshino was one of the signers.

Yoshino evidently thought then that fairness requires legally recognizing polyamorous sexual partnerships. Did he forget having publicly endorsed that idea? Did he change his mind about it? Would he square what he says now with what he said then by distinguishing legal recognition of multiple “conjugal partner” relationships from marital legal recognition, reserving the term “marriage” for partnerships of exactly two? (If so, on what basis would he withhold the term from multiple-partner households?) Or did his reply to us soften his position, and profess agnosticism about what justice requires of our law, because showing his cards would (a) cost his position broad support, and (b) vindicate our argument that eliminating sexual complementarity removes any principled grounds for monogamy?

If there are no principled grounds for marital norms, then it must be unjust to fail to recognize any relationships that are just as socially valuable as those that we do recognize. But in that case, as we argued against Koppelman, the reasons to exclude polyamorous unions grow thin indeed:

The social costs of recognizing polyamorous partnerships might include, say, increased administrative burdens for the state. But the benefits would presumably include spousal privileges, inheritance and hospital visitation rights, and in general more practical assistance to, and social acceptance of, the relationships that Americans in an estimated 500,000 polyamorous households find most personally desirable. The stigma against such people and their children would be weaker. They would feel less pressure to hide their romantic inclinations and lifestyle choices. Their economic situation could well be improved.

If it’s an unsettled question whether justice requires recognizing such unions, can we really put off answering it until the possible victims of injustice have clamored long enough? Should we really join Yoshino’s rejection of wholesale thinking about marriage, and remain content to “test such intuitions [about polyamory] if and when such debates become live national controversies”?

So much for the implausibility of what Yoshino (perhaps looking backward as well as forward) labels his “current” position: we can also show that his criticisms of our view miss their mark.

Yoshino’s Flawed Critique

Yoshino imputes to us what he labels “the common procreation argument” about marriage, which he thinks cannot account for the validity or value of marriages that do not produce children. But we denied that actual procreation was necessary for marriage, and defended as philosophically sound the historic law of marriage that has long regarded infertility as no impediment to matrimony. For marriage is no mere means to procreation, but valuable in itself. That is perfectly consistent with holding, as we do, that the distinctive contours of marriage are what they are in significant part because it is the kind of union that would be naturally fulfilled by having and rearing children together.

After all, any serious account must explain how marriage differs from other types of community—and make sense of the evident fact that the idea of marriage would never have been conceived if human beings did not reproduce sexually. The view that we defend and that our legal tradition long enshrined does both: Marriage, valuable in itself, is the kind of commitment inherently oriented to the bearing and rearing of children; it is naturally fulfilled by procreation. This orientation is related to the fact that marriage is uniquely embodied in the kind of act that is fulfilled by procreation: coitus. By coitus alone, a man and woman can be related much as the organs of a single individual are related—as parts coordinating together toward a biological good of the whole. So marriage is consummated in an act that creates in this sense a bodily union—an extension of two people’s union of hearts and minds along their bodily dimension, thus making marriage a uniquely comprehensive interpersonal union. (By contrast, friendships in general are unions of hearts and minds alone, and so are characteristically embodied in conversations and joint pursuits.) Finally, in view of its comprehensiveness and its orientation to children’s needs, only marriage inherently requires of its would-be participants pledges of permanence, exclusivity, and monogamy. (By contrast, friendships do not require a promise of permanence and are often enhanced, not betrayed, by openness to new members.)

Every single sentence about marriage in the previous paragraph applies equally to any man and woman who have made and consummated their marital commitment, regardless of fertility. After all, each such sentence is just as true of a couple on their wedding night as it is after the birth of a third child. By contrast, not one of these same sentences applies to two men, two women, partnerships of three or more, or by-design temporary or open unions. If Yoshino thinks that we offer no “principled ground” for the distinctions we make, perhaps that is because his inapt label for our view (“common procreation”) has clipped and obscured it.

Nor do we salvage the validity of childless marriages at the price of denigrating their value, as Yoshino also charges. That an orientation to procreation distinguishes marriage from other unions does not mean that procreation must be the most important aspect of a marriage, much less its sole point. Comprehensive union itself—of mind, heart and body; permanent and exclusive—is of great inherent value, and distinct from the value of general friendships (unions of hearts and minds), however deep and fulfilling in their own right. Hence infertile spouses realize an important value distinguishable in significant ways from that of other friendships.

Moreover, in agreeing that marriage is a comprehensive union of persons but denying that it includes true bodily union, Yoshino must be reducing the person to a center of consciousness and emotion, which just uses a body as an extrinsic (and thus subpersonal) instrument for achieving satisfactions or other goals. For reasons we and others have articulated in various writings, we believe that this is a serious philosophical error, one at the heart of much contemporary confusion about the meaning of sex and marriage. In truth, our bodies are integral aspects of us as human persons, so that no interpersonal union is comprehensive if it leaves out bodily union.

Note, too, that legally recognizing infertile opposite-sex unions does nothing to undermine opposite-sex parenting as a public ideal. Now Yoshino denies that opposite-sex parenting is ideal even as a rule. He points to the values of “liberty, equality, and justice.” But in light of these, do we not owe it to children to ensure that they are, wherever reasonably possible, reared by the mother and father who conceived them—that our policies privilege this arrangement as a norm?

In this connection, Yoshino mistakenly claims that we deny that adoptive parents are the real parents of the children entrusted to their loving care. The sentence in our article that Yoshino sees as “denigrating” adoption was not about, and did not mention, adoption. As its context makes clear, its (perhaps inartfully phrased) point was that every child’s having two biological parents is related to the ground for monogamy: for only two-person unions (specifically, those capable of coital consummation) can be of the procreative type—and only unions of the procreative type can be marriages. We further argued that each child would ideally know and love, and be known and loved by, her biological parents, in the security provided by their marital commitment and love for each other. We never denied that the best available approximation of this through adoption is at times necessary, and in such cases laudable. Those who adopt should enjoy the same rights, and be held to the same responsibilities, as non-adoptive parents, legally and socially. They are real parents. That as such does not make them part of a procreative type of community, or therefore capable of marrying—witness, say, an orphan being adopted by his single aunt or two cohabiting bachelor uncles.

Of course, the normative issue of which arrangements our policies should privilege as generally ideal for procreation cannot be resolved by descriptive social-scientific studies alone, but such studies would contribute importantly relevant information. What we need, however, are studies that meet the acknowledged gold standard of social-scientific research, by drawing on large, random, and representative samples observed longitudinally. But so far, none of the studies comparing children reared by same-sex couples to children reared by their married biological parents has these features (for reasons acknowledged in this literature review by a sociologist and Jonathan Rauch, a gay civil marriage proponent). Yet Yoshino treats the social science as settled.

The designers of currently available studies of same-sex parenting outcomes cannot be blamed for the unavailability to date of large, random, representative samples to track over time. But every parenting arrangement that has been examined in high-quality studies has consistently been shown less effective than parenting by married biological parents: this is true of single- and step-parenting as well as parenting by cohabiting couples. Studies also suggest that mothers and fathers foster—and their respective absences impede—children’s healthy development in different ways. It would therefore be surprising if same-sex and opposite-sex parenting were equally effective. But let the methodologically strong studies be done, and the chips fall where they may.

Finally, Yoshino implies that, despite our argument that the structure of marriage depends partly on its orientation to procreation, we advocate a view that crudely draws a circle around all opposite-sex couples (and only them). But we have consistently argued that sexual complementarity, while necessary, is not sufficient to make a marriage. For example, if a man and woman do not sincerely pledge monogamy and sexual exclusivity—norms that are (like sexual complementarity itself) connected to marriage’s orientation to procreation—then their partnership is not, as a moral matter, a true marriage; nor is a marriage complete unless it is sealed in the generative act. But none of this is—as Yoshino further suggests—a strike against our view. For it is evident that nothing in any principled way distinguishes even opposite-sex bonds without these features from the wide and varied spectrum of non-marital friendships or partnerships. (Of course, the law may ordinarily have reasons not to inquire into such things as the sincerity of spouses’ marital pledges. Similarly, even advocates of defining civil marriage as a loving romantic commitment would not want the state inquiring into a couple’s level of affection or intimacy before granting marriage licenses. And as lawyers and legal scholars know, none of this concern about invasive inquiries is unique to marriage law.)

In “What is Marriage?” we defended a coherent answer to the title question. We showed how that answer makes sense not only of the requirement of sexual complementarity, but also of other marital norms (pledges of monogamy, exclusivity, and permanence)—and of the historic legal practice under which marriages could be annulled or dissolved for non-consummation but not for infertility. We also challenged proponents of redefining civil marriage to defend marital norms (like monogamy) embraced by most on both sides. Professor Yoshino insists that whatever marriage is, it does not require sexual complementarity or bodily union in coital acts. Currently, he seems to think that it is in principle limited to two persons. But he has given no coherent account of how to square these positions. Nor, we believe, can he.

Sherif Girgis is a PhD Candidate in Philosophy at Princeton University. Ryan T. Anderson is a PhD Candidate in Political Science at the University of Notre Dame. Robert P. George is McCormick Professor of Jurisprudence at Princeton University.

Copyright 2011 the Witherspoon Institute. All rights reserved.

Deutsch’s central problem is with the following passage in our article:

In coitus, but not in other forms of sexual contact, a man and a woman’s bodies coordinate by way of their sexual organs for the common biological purpose of reproduction. They perform the first step of the complex reproductive process. Thus, their bodies become, in a strong sense, one—they are biologically united, and do not merely rub together—in coitus (and only in coitus), similarly to the way in which one’s heart, lungs, and other organs form a unity: by coordinating for the biological good of the whole. In this case, the whole is made up of the man and woman as a couple, and the biological good of that whole is their reproduction.

Deutsch follows this with an analysis:

1) Individual adults are naturally incomplete with respect to sexual reproduction.
2) Reproduction can only be begun via coitus between a man and a woman.
3) Thus, during coitus, a woman and a man’s bodies are biologically united and become one flesh.

How does #3 follow from #1 and #2? Answer: It doesn’t.

Deutsch claims that our argument is a non sequitur because there is “no non-metaphorical sense in which the spouses become ‘one flesh’” in light of the fact that “the man and the woman … remain two separate entities,” as can be confirmed by a “DNA sampling.”

As most readers will have noticed, Deutsch’s claim against us is itself a non sequitur.

Deutsch evidently assumed that a man and woman’s common biological action cannot make them biologically united at all (that is, united in any respect), unless it makes them completely so (that is, united in every respect). But this is obviously untrue. Organic unity can be genuine without being all-encompassing:  two distinct organisms can be organically united in some respects or for some purposes while remaining separate and self-sufficient in other respects or for other purposes. Whether we are talking about humans or zebras, individual members of a mammalian species are separate and self-sufficient with respect to locomotion, digestion, respiration and most other functions. With respect to reproduction, however, individual members of the species are not self-sufficient. A male or female is half of a potential mated pair whose biological (and, as such, organic) common action—or unity—in coitus characteristically (though not on every occasion) produces offspring.

Deutsch’s appeal to “DNA sampling” to “confirm” that there is “no non-metaphorical sense” in which males and females organically unite in mating is risible. Genetic identity is not what constitutes biological unity (cf. identical twins)—nor is it, as we will show, even necessary for biological unity of every meaningful sort. Elsewhere Deutsch suggests that biological unity requires being “physically joined.” But physical joining just in itself can scarcely be considered a very significant kind of bodily unity, since it may well include the “unions” of animals that are tied to each other by the tails, or whose hides have been surgically attached at a point. There would be nothing metaphysically or morally significant about these instances of “physical joining.”

The rest of Deutsch’s posting is ostensibly an effort to find such a sense in which coitus is a real bodily union. But if he were careful, he wouldn’t have had to look very far. In fact, the answer is in the very passage that he first quotes: “…they are biologically united… similarly to the way in which one’s heart, lungs, and other organs form a unity: by coordinating for the biological good of the whole.”

Thus, following Aristotle, we argued in our article—in the paragraph immediately preceding the one that Deutsch cites—that “our organs—our heart and stomach, for example—are parts of one body because they are coordinated, along with other parts, for a common biological purpose of the whole: our biological life. It follows that for two individuals to unite organically their bodies must be coordinated for some biological purpose of the whole.” This conception clearly allows for partial biological unity, in respect of coordination toward some but not other biological purposes.

Think of a biological function in humans. Now think of the parts that are inherently oriented to playing some role in serving that function and can thus be said to be coordinated together toward its fulfillment. Our claim is that there is one meaningful sense in which the parts just mentioned enjoy a biological unity, precisely in virtue of that coordination toward fulfilling a common biological function.

If the function that you thought of was locomotion, metabolism, respiration, or one of many others, then (a) the parts that you thought of are organs within a single individual; and (b) the function in question itself plays some role in serving that individual’s biological life. But if reproduction was the function you picked, then (a) the parts that you thought of are not organs in a single individual; and (b) the function in question is one that serves the biological good not of an individual, but of a male-female pair as a whole: namely, their reproduction. And coitus is the process by which such coordination toward a common biological function—such real, if limited, biological unity—is achieved.

Deutsch objects that “it’s not true that every part of our body is ‘coordinated’… for a common biological purpose… [namely] biological life,” and cites hair, skin tags, and benign tumors. But far from disproving our point, these examples support it. For it is clear that hair, skin tags, and benign tumors—though contiguous with our bodies—are not biologically united with them in just the way that, say, a heart and lungs are. To remove tumors or skin tags (or at least some of the body’s hair) has no effect on our organic functioning; that is why doing so is not mutilation. (In Deutsch’s own words, “they could all be removed at no biological cost.”) If there is still a sense in which they are parts of one’s body—because of their contiguity with it, and so on—that just shows that there are different (more and less important) senses in which two things can be biologically united. But that is no strike against our argument, since we articulated precisely which sense we meant—and a sense that is clearly more significant than the contiguity that skin tags have as much as limbs do.

Deutsch continues:

I largely agree with George that a marriage, in nearly all cases, requires a physical, sexual union to become complete. (There may be individual couples who are exceptions, but for the overwhelming majority of couples, it will not feel like a true marriage without a sexual union.)

It is not clear what Deutsch means here. If marriage is a human good with some essential features that hold regardless of the participants, then either consummation is one such essential, or it is not. If it is, then Deutsch’s second sentence is false; if it is not, then his first sentence is puzzling. If, on the other hand, Deutsch thinks that there are no essential features of marriage that hold constant across would-be spouses, then we wonder why he thinks that marriage would require even mutual commitment (much less monogamous or exclusive commitment). Why, too, would he not think that such an intrinsically malleable good would be hindered by legal recognition, which imposes certain uniform constraints on every recognized marriage?

Perhaps then Deutsch means that a certain sort of mutual pleasuring is essential to marital unity, and that this is what most (but not all) couples achieve through sex. Our article includes a short note about why pleasure cannot be another biological good in respect of which two individuals are in some sense biologically united, by sexual activities other than coitus:

Pleasure cannot play this role for several reasons. The good must be truly common and for the couple as a whole, but pleasures (and, indeed, any psychological good) are private and benefit partners, if at all, only individually. The good must be bodily, but pleasures are aspects of experience. The good must be inherently valuable, but pleasures are not as such good in themselves—witness, for example, sadistic pleasures.

Ignoring our first two points, Deutsch says of the last sentence:

[That] is a little like saying “childbirth is not as such a good in itself–witness, for example, the birth of Hitler.” For any good, one could imagine an instance of the good being used for negative purposes; yet if “can never be used for negative purposes” is the definition of good, then absolutely nothing on this mortal Earth is or ever can be good. That’s silly. In the right context (i.e., not Hitler), childbirth is a good; and in the right context, sexual pleasure is also a good.

Our point was not that sadistic pleasures are inherently good things that just happen to be used for bad purposes. First, it is a confusion to speak of sadistic pleasures being used for bad purposes. It is the other way around: sadists seek what is bad or evil for the sake of pleasure, which they typically seek for its own sake. Second, we agree (who wouldn’t?) that good things can be twisted. Our point was that in sadistic pleasures, it is not as if the pleasure itself is good, only sought by illicit means. Pleasure taken in bad things is bad. And we doubt that Deutsch would disagree. If a man took pleasure in strolling the halls of a pediatric oncology ward to watch children die of cancer, no one would we say, “Well, it’s too bad that’s what suits his fancy—but at least he got pleasure out of it.” Pleasure does not have its own value, considered as a state of mind independently of its object; it shares in the moral quality of that object. Now communities—like friendship or marriage—are built up by the pursuit of what is inherently valuable. So marriage cannot be built up by the common pursuit of pleasure just as such. Spouses must achieve some good (organic union as an embodiment of their commitment), in which the pleasure they take is then an additional perfection. That was our point.

From these misunderstandings, Deutsch rushes to his conclusion:

But at heart, “What Is Marriage” is a faith-based argument. George believes, as a matter of faith (all he has, since he lacks evidence), that there’s something called “bodily union,” a biological merger of male and female bodies, that occurs only in coitus….

But basing laws on Robert George’s faith in a mythical “bodily union” is no better than basing laws on my faith in Mork from Ork. Robert George and his fellow-travelers may have faith in magical bodily unions, but they would be morally wrong to force that faith on us through the legal system….

But now we’re treading on even more bewildering territory. Do we want a society in which people’s civil rights are decided, not by what is just, not by what is pragmatic, not by what is fair, but by a metaphor? Metaphors, unlike facts, can change arbitrarily. Suppose that George chooses to believe in a different metaphor next year — a metaphor saying that comprehensive unity can only be achieved by dog owners, for instance. Would we then be obliged to change marriage laws to exclude cat owners?

Ridicule is the last resort of desperate arguments. If Deutsch had achieved a sound understanding of our view (as Koppelman did) and then produced a valid argument against it (as Koppelman made a serious effort to do), he would have had no need of putting words into our mouths (“biological merger”) or festooning his critique with dismissive terms (“mythical,” “magical”). A sound objection would have sufficed. But a dozen sneers do not make an objection.

What Deutsch calls the protean “myth” at the heart of marriage law has been its cornerstone for centuries. Our legal tradition understood coitus and coitus alone as consummating (and thus completing) a marriage, but never accepted infertility as a ground for annulment or dissolution. Our argument—into which readers will gain little insight by reading Deutsch’s post—can make ample sense of that tradition, in a way that also accounts for other marital norms (permanence, exclusivity, monogamy). Can Deutsch? What is the non-arbitrary basis on which he would ground these norms (assuming he accepts them), while rejecting sexual complementarity as integral to marriage? Our guess: he will do no better than other advocates of redefining civil marriage have done in meeting our challenge. What argument would Deutsch make against the 300 academics and activists who signed “Beyond Gay Marriage,” or others who would eliminate the requirements of monogamy and sexual exclusivity? Or would he join them?

The common biological action of mating is no myth; it is a biological fact. Ask any zoologist (or farmer). The real question is whether human mating, precisely in virtue of the unity it effectuates, is capable of having moral significance of a certain sort. Can it embody and complete an inherently valuable, comprehensive form of relationship—historically known as marriage—that is, like mating itself, ordered to procreation? We have argued as much. And if we are right, then not only sexual complementarity, but the other structuring marital principles recognized by our legal tradition—monogamy, sexual exclusivity, the pledge of permanence—are intelligible and sound. Yet they cannot be accounted for by a sneering Barry Deutsch any more than by a commendably thoughtful and morally serious scholar like Andrew Koppelman.

Sherif Girgis is a PhD Candidate in Philosophy at Princeton University. Ryan T. Anderson is a PhD Candidate in Political Science at the University of Notre Dame. Robert P. George is McCormick Professor of Jurisprudence at Princeton University.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Professor Koppelman graciously credits our article with having “done [readers] a service with [a] succinct and clear exposition” of the arguments for conjugal marriage “that is accessible to the general reader.” Noting that “the most prominent response to [our] paper, by NYU Law Professor Kenji Yoshino, doesn’t really engage with any of [our] arguments,” Koppelman writes, “Here I will try to do better.”

Koppelman has indeed contributed importantly to the debate. Besides providing an opportunity for us to defend a core premise of our view, he has forthrightly admitted—he might say, embraced—the less politically palatable implications of rejecting our position.

Against our view that marriage is a pre-political form of relationship (albeit one that the state has compelling reasons to support and regulate), Koppelman holds that marriage is merely a social and legal construction—the pure product of conventions. Relatedly, he rejects the idea, long embodied in our law and the philosophical traditions supporting it, that spouses’ coition consummates marriage by sealing their commitment with a form of bodily communion made possible by their sexual-reproductive complementarity. And he acknowledges what we and he agree is an implication of his view: that there are no principled reasons for would-be spouses to pledge or observe permanence, sexual exclusivity, or monogamy.

Koppelman’s concession on this important point is of more than merely academic interest. Consider the 2006 statement “Beyond Gay Marriage,” which endorsed “a new vision for securing governmental and private institutional recognition of diverse kinds of partnerships, households, kinship relationships and families,” including polyamorous (multiple “conjugal partner”) unions. Its 300 signatories—self-described lesbian, gay, bisexual, and transgender (LGBT) and allied activists, scholars, educators, writers, artists, lawyers, journalists, and community organizers—not only recognize that their rejection of sexual complementarity as essential to marriage abolishes any principled basis for monogamy and sexual exclusivity; they urge that the law reflect this, by extending recognition to polyamorous unions.

There is another, perhaps more surprising implication of Koppelman’s positing marriage as a pure social and legal construct: it undermines the evident views of many gay civil marriage proponents. For many on both sides of the debate argue as if marriage was not simply reducible to what the majority (through legal or social convention) says it is, but a human good with its own inherent requirements, which the state ought to recognize accordingly. For if there are no principled boundaries demarcating some intimate associations as marriages, then no principle requires holding that same-sex sexual partnerships are marriages. In that case, all it takes to justify traditional marriage law is that the non-recognition of same-sex partnerships offer some (or a net) social benefit.

Koppelman would deny that it does. But this re-invites the question: what is the net social benefit of excluding multiple-partner unions?

The social costs of recognizing polyamorous partnerships might include, say, increased administrative burdens for the state. But the benefits would presumably include spousal privileges, inheritance and hospital visitation rights, and in general more practical assistance to, and social acceptance of, the relationships that Americans in an estimated 500,000 polyamorous households find most personally desirable. The stigma against such people and their children would be weaker. They would feel less pressure to hide their romantic inclinations and lifestyle choices. Their economic situation could well be improved.

Recognizing the flimsiness of many marital norms if marriage is just a social construct, Calgary philosopher Elizabeth Brake has called for “minimal marriage,” in which “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties, the type of relationship involved, and which rights and responsibilities to exchange with each.” Koppelman presumably thinks it an injustice to fail to recognize relationships that are just as socially valuable as ones that we do recognize. So why isn’t Brake’s policy required in justice?

Of course, we believe that marriage is no mere social or legal construction, but a human good with certain inherent requirements that the state does not create but should recognize and support. Far from unique, marriage is in this respect like other moral realities, most notably human rights. The right not to be discriminated against based on one’s skin color, say, would exist as a moral principle governing human conduct even in the absence of positive law. Likewise, the inherent structure of the good of marriage exists, and defines the kind of commitment that would-be spouses must make if they wish to realize that good, even in the absence of marriage law. But what is marriage, so understood? That is the question to which we proposed an answer in the essay to which Koppelman responded. We turn now to his criticisms of our answer.

Bodily union: Does it matter? What does it mean?

We argued that marriage, as our law has historically recognized, is a union of persons along every dimension of their being. As such, marriage is uniquely embodied and sealed in the coition of husband and wife. Our law historically recognized that, too. For coitus alone unites spouses along the bodily dimension of their being and is, like the relationship that it seals, inherently oriented to procreation. Only such bodily union and its connection to children provide principled grounds for core marital norms (exclusivity, monogamy, a pledge of permanence) and make sense of the state’s interest in marriage over other personal bonds.

But Koppelman claims that “it is not clear that this kind of ‘organic bodily unity’ actually exists, or that even if it did, it would have the intrinsic value they attribute to it.” Now there are two ways to resist the view that the kind of bodily union possible only between a man and a woman has special value, and our article already includes replies to both.

First, someone might think that bodily union never has inherent value: emotional intimacy does, and sexual activity matters only when it serves that. Our article addresses this point:

Marriage is distinguished from every other form of friendship inasmuch as it is comprehensive. It involves a sharing of lives and resources, and a union of minds and wills… But on the conjugal view, it also includes organic bodily union. This is because the body is a real part of the person, not just his costume, vehicle, or property. Human beings are not properly understood as nonbodily persons—minds, ghosts, consciousnesses—that inhabit and use nonpersonal bodies. After all, if someone ruins your car, he vandalizes your property, but if he amputates your leg, he injures you. Because the body is an inherent part of the human person, there is a difference in kind between vandalism and violation; between destruction of property and mutilation of bodies.

Likewise, because our bodies are truly aspects of us as persons, any union of two people that did not involve organic bodily union would not be comprehensive—it would leave out an important part of each person’s being. Because persons are body-mind composites, a bodily union extends the relationship of two friends along an entirely new dimension of their being as persons. If two people want to unite in the comprehensive way proper to marriage, they must (among other things) unite organically—that is, in the bodily dimension of their being.

Second, some who see bodily union in marriage as inherently valuable and crucial may still think that any consensual sexual activity could realize it. Our article answers this view, too:

But what is it about sexual intercourse that makes it uniquely capable of creating bodily union? People’s bodies can touch and interact in all sorts of ways, so why does only sexual union make bodies in any significant sense “one flesh”?

Our organs—our heart and stomach, for example—are parts of one body because they are coordinated, along with other parts, for a common biological purpose of the whole: our biological life. It follows that for two individuals to unite organically, and thus bodily, their bodies must be coordinated for some biological purpose of the whole.

That sort of union is impossible in relation to functions such as digestion and circulation, for which the human individual is by nature sufficient. But individual adults are naturally incomplete with respect to one biological function: sexual reproduction. In coitus, but not in other forms of sexual contact, a man and a woman’s bodies coordinate by way of their sexual organs for the common biological purpose of reproduction. They perform the first step of the complex reproductive process. Thus, their bodies become, in a strong sense, one—they are biologically united, and do not merely rub together—in coitus (and only in coitus), similarly to the way in which one’s heart, lungs, and other organs form a unity: by coordinating for the biological good of the whole. In this case, the whole is made up of the man and woman as a couple, and the biological good of that whole is their reproduction.

Koppelman’s reply says nothing to address either of these points—that bodily union is necessary, or that only coitus effectuates it. He only cites a previous essay of his in which he argues that our view would exclude infertile couples. There he argued that a “sterile person’s genitals are no more suitable for generation than an unloaded gun is suitable for shooting. If someone points a gun at me and pulls the trigger, he exhibits the behavior which, as behavior, is suitable for shooting, but it still matters a lot whether the gun is loaded and whether he knows it.” But we had already responded to this objection in our new article, and his reply does not address our answer:

Natural organs and organic processes are unlike man-made objects and artificial processes, which retain their dynamism toward certain goals only so long as we use them for those goals—which in turn presupposes that we think them capable of actually realizing those goals. That is, the function of man-made objects and processes is imposed on them by the human beings who use them. Thus, a piece of metal becomes a knife—an artifact whose function is to cut—only when we intend to use it for cutting. When it is no longer capable of cutting and we no longer intend to use it for cutting, it is no longer really a knife.

The same does not hold for the union between a man and a woman’s human bodies, however, because natural organs are what they are (and thus have their natural dynamism toward certain functions) independently of what we intend to use them for and even of whether the function they serve can be brought to completion. Thus, in our example, a stomach remains a stomach—an organ whose natural function is to play a certain role in digestion—regardless of whether we intend it to be used that way and even of whether digestion will be successfully completed. Something analogous is true of sexual organs with respect to reproduction.

So bodily union matters to marriage, and only coitus achieves it (whether or not conception results). Koppelman says nothing to refute these points, or to address our answers to his previous objections to them.

He admits failing to see distinctive value in marriage so understood, and implies that few others can. On the contrary, our civilization (like others) has long recognized a human good with just these contours. Consistently and for centuries, our law (a) required coitus—and accepted no other act—for the consummation of any marriage, but (b) never treated infertility as an impediment to marriage. This cannot be ascribed to ignorance of infertility (the phenomenon was well known) or the difficulties of discovering it before a marriage: while non-consummation was treated as a ground for annulment or dissolution, infertility established after a wedding ceremony never was. Nor can this aspect of the legal tradition be ascribed to animus towards homosexuals or even the moral rejection of homosexuality: the law distinguished among possible sexual acts performed by the same legally wedded man and woman, and was settled in cases in which same-sex conduct or relationships were not at issue.

The only way to account for this longstanding legal practice is to posit something much like our view: people grasped (and in fact many still grasp) that comprehensive interpersonal union—permanent, exclusive, and sealed by coitus—is (a) valuable in itself and (b) distinguishable in principle from non-marital friendships and indeed every other inherently valuable human good.

Koppelman must find these features of historic marriage law to be baffling. Not seeing anything special in coitus or the kind of bodily union (and, therefore, comprehensive interpersonal union) that it makes possible, and unable to appeal to irrational motivations (like homophobia) or mundane explanations (like ignorance), he must find our legal tradition’s distinction between infertile opposite-sex couples and same-sex couples simply unintelligible. But it is perfectly intelligible the moment one recognizes that marriage is a distinctive form of relationship at once (1) inherently oriented to procreation, and (2) valuable in itself, and not as a mere means to procreation.

Just a legal convention?

In rejecting our argument, Koppelman also denies that marriage is a human good with certain inherent requirements that the state has strong reasons to recognize and reinforce. With admirable directness, he writes that marriage is “just a construct that has developed over time, and that therefore can be changed by human beings if that seems best.” To illustrate the point, he asks us to imagine a proposal to change one of the rules of chess:

I don’t think that this question can be resolved by trying to figure out what the essence of Chess is. Chess hasn’t got an essence. Doubtless the present game of chess was developed through just such fiddling; perhaps someone once thought that the drunken reel of the knight was hostile to the essence of Chess. The question is what sort of chess rules are likely, under the circumstances, to best realize the good of play.

Similarly, Koppelman suggests, there is no “essence” to marriage. For him, presumably, marriage laws are just so many contingent specifications of the highly varied good of intimacy.

Recall the fallacy in Koppelman’s objection to our view of infertile couples’ bodily union: that from the fact that guns (artifacts) lose their dynamism toward killing when they can no longer cause death, it would follow that our reproductive organs (natural objects) lose their orientation toward procreation when they can no longer cause conception. A similar fallacy would be needed to complete Koppelman’s argument up to this point: that from the fact that some social practices like chess are pure constructs, it would follow that that marriage is, too. But marriage isn’t a pure construct, any more than human rights are mere constructs. Both are moral realities that the state has good reasons to recognize and support.

But Koppelman has more to say. He seems to suggest that the concept of an independent basic good with certain pre-legal requirements is “barely comprehensible.” We can dispel this impression with another example.

Consider friendship. As with marriage, the particulars of friendship vary widely by time and place. But also like marriage, friendship is a human reality, a distinctive human good, with certain essential features independent of our social or linguistic practices. For example, it essentially involves each person’s actively willing the other’s good, for the other’s sake. And again like marriage, friendship (the human reality, not our use of the word) grounds certain moral privileges and obligations between its participants and even between the friends and others who might interact with them. So friendship, like marriage, is not just a social construct.

If we said that John and Joe, who just exploited each other, were not “real friends,” we would not just mean that a certain word did not apply to their bond, or that society failed to treat that bond as it does certain others. We would primarily mean that John and Joe were missing out on a distinctive, inherently valuable reality—a human good, for which other goods are no substitute—because of a failure to meet its inherent requirements, which are not purely socially constructed. Similarly, a relationship is not a marriage just because we speak and act as if it is, nor is a relationship not a marriage just because we fail to do so.

So it makes sense to speak of human goods with internal requirements that don’t just depend on linguistic or social conventions. And marriage between a man and a woman, we argue, is one of these goods. Koppelman gives no good argument for thinking that marriage is not, and people’s longstanding practices and understandings of marriage strongly suggest that it is. Koppelman cites shifting attitudes on these issues, confident that history is on his side. But we are confident that when Americans understand the implications of conceiving marriage as a mere social construct and legal convention, they will see the wisdom of preserving it as the conjugal union of husband and wife—and be reinforced in the view that it is so inherently.


Sherif Girgis is a PhD Candidate in Philosophy at Princeton University. Ryan T. Anderson is a PhD Candidate in Political Science at the University of Notre Dame. Robert P. George is McCormick Professor of Jurisprudence at Princeton University.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Kenji Yoshino of NYU Law School, a prominent and influential gay rights legal scholar, has posted on Slate a response to our article under the title “The Best Argument Against Gay Marriage,” proposing to show “why it fails.” Although we are glad that our efforts have attracted the critical attention of an important advocate of redefining marriage, Professor Yoshino’s response is long on rhetoric designed to stigmatize a position he opposes, and short on arguments that might actually cast doubt on its soundness.

Indeed, Yoshino’s posting brings to mind points developed in a recent paper by Yoshino’s colleague at NYU, Professor Jeremy Waldron—one of the world’s most eminent legal philosophers. Waldron observes that it “infuriat[es]” many of his fellow liberals that some intellectuals remain determined, in Waldron’s words, “to actually argue on matters that many secular liberals think should be beyond argument, matters that we think should be determined by shared sentiment or conviction.” In particular, Waldron laments, “many who are convinced by the gay rights position are upset” that others “refuse to take the liberal position for granted.”

The central argument of our article is that equality and justice are indeed crucial to the debate over civil marriage law, but that to settle it—to determine what equality and justice demand—one must answer the question: what is marriage? So this is what the debate is ultimately about. In making our case for conjugal marriage, we consider the nature of human embodiedness; how this makes comprehensive interpersonal union sealed in conjugal acts possible; and how such union and its intrinsic connection to children give marriage its distinctive norms of monogamy, exclusivity, and permanence.

Our article offers detailed responses to the most significant objections to our view: that it has no principled grounds for recognizing infertile couples’ marriages, ignores the needs of same-sex attracted people, is morally similar to support for anti-miscegenation laws, assumes the mutability of sexual desire, relies on religious belief, or fails to show the concrete harm in redefining civil marriage.

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.

If even that much of our article’s argument is right, then the case against conjugal marriage laws as it is now being made in the courts collapses—and Yoshino knows it. If the logic of recognizing same-sex partnerships as marriages undermines the rational basis of the very idea of marriage as a sexually exclusive and monogamous union, then all but the most extreme sexual liberationists will draw back from his position. And if the same argument for radically reforming marriage policy also undercuts the point of legally regulating marriage at all, then it is self-defeating.

Instead of addressing these points, Yoshino grossly misrepresents two analogies we made as if they were identities. He thus represents us as holding what we do not hold and neither said nor implied (e.g., that infertile couples are just like losers in a baseball game; or that adoptive parents are not real parents).

But this exchange would be fruitless if we responded in kind. Instead, we will attempt to answer the concrete objections that seemed to motivate Professor Yoshino’s essay.

At one point, Yoshino concedes that we have a “serious point,” but he distorts it in a manner that works to the advantage of his own critique: “They are contending that sexual activity has been privileged over other kinds of bonding activities in determining who gets to marry.” Notice the question-begging implication of the phrase “who gets to marry.” Yoshino assumes (and assumes that we assume) that the institution of marriage inherently has nothing to do with sexual complementarity, and that we are merely supporting a historical tendency to “privilege” certain activities in determining who gets access to marriage (seen as a gender-neutral institution) under the law.

But as the very title of our article reveals, our goal is to show that the debate over civil marriage’s definition is ultimately about what marriage is, considered as a pre-legal reality that the state has good reasons to track (and that it hurts the common good to obscure). We offer and defend an answer according to which bonds between two men or two women—like those among three or more—simply lack the features essential to marriage: what are denied legal recognition in these cases are not marriages in the relevant sense. To miss or misrepresent these points is to fail to engage our argument at all.

We give a coherent account of marriage as inherently a sexual partnership, one shaped by norms of monogamy and sexual exclusivity. We contend that any view of marriage that would include same-sex partnerships cannot defend these norms as a matter of principle rather than sentiment or preference, and we challenge revisionists like Yoshino to show—by arguments—otherwise. If Yoshino could have mustered effective arguments, he would have. But rather than propose an answer to the question What is marriage? he assumes an answer that he does not defend or even articulate, and uses it to impute to us groundless aggression: we are, he claims, “declaring war” on people’s marriages; our arguments “demean” and “denigrate” those who cannot have biological children of their own.

Then has Yoshino “declared war” on the (according to Newsweek) 500,000 polyamorous U.S. households, by failing to support a policy that would ratify their romantic commitments as civil marriages? By this standard, no policy that proposed standards for which arrangements could be legally recognized as marriages—in other words, no marriage policy, period—would pass muster.

Professor Yoshino’s rhetoric is thus, to all appearances, designed to exploit caricatures of conservatives as mean-spirited bigots out to thwart those not like themselves. But our argument is either successful or not. If it is successful, pejorative labeling cannot harm it; if it is unsuccessful, a clear explanation of its flaws—for example, by showing that it rests on a false premise or a fallacious inference—gives people all the reason they require for rejecting it.

Yoshino directs much of his scorn at an analogy we use to defend our view (and the view historically embodied in our law) that marriages, being comprehensive interpersonal unions, are consummated and uniquely embodied in coitus—in acts that extend spouses’ union of hearts and minds along the biological dimension of their beings, much as various organs unite to form one body: by allowing them to coordinate together toward a biological function (in this case, reproduction) of the whole (in this case, the couple as a unit).

Like any analogy, the analogy of ours that Yoshino criticizes was meant to illustrate a limited point: how a community can derive its structure and defining norms from a certain end, even though it is valuable in itself and not merely as a means to that end. Here’s how we put it:

A baseball team has its characteristic structure largely because of its orientation to winning games; it involves developing and sharing one’s athletic skills in the way best suited for honorably winning (among other things, with assiduous practice and good sportsmanship). But such development and sharing are possible and inherently valuable for teammates even when they lose their games.

Just so, marriage has its characteristic structure largely because of its orientation to procreation; it involves developing and sharing one’s body and whole self in the way best suited for honorable parenthood—among other things, permanently and exclusively. But such development and sharing, including the bodily union of the generative act, are possible and inherently valuable for spouses even when they do not conceive children.

Now law professors, like philosophers, are familiar enough with analogies to see that they break down: that is what makes them analogies and not equations, as we make clear in our article just a few sentences after drawing this analogy. One clear difference between marriage and a sport is that the latter is a competitive activity in which having winners and losers is inherent to the practice. Marriage is not. So our point was not to relegate spouses without biological children, or marital acts that (like all spouses’ acts most of the time) do not cause conception, to the status of “losers” (who are then “denigrated” or “demeaned”).

Professor Yoshino dismisses (without quite rehearsing) another one of our arguments—that only the conjugal view can account for the deep connection between marriage and children—on the ground that this argument relies on studies asserting the superiority of biological parenting without comparing it to same-sex parenting. But we never denied that there are not yet high-quality studies comparing opposite-sex to same-sex (or, for that matter, polyamorous) parenting. Here is what we did say about the connection between marriage understood as a conjugal union, and children:

We learn something about a relationship from the way it is sealed or embodied in certain activities. Most generically, ordinary friendships center on a union of minds and wills, by which each person comes to know and seek the other’s good; thus, friendships are sealed in conversations and common pursuits. Similarly, scholarly relationships are sealed or embodied in joint inquiry, investigation, discovery, and dissemination; sports communities, in practices and games.

If there is some conceptual connection between children and marriage, therefore, we can expect a correlative connection between children and the way that marriages are sealed. That connection is obvious if the conjugal view of marriage is correct. Marriage is a comprehensive union of two sexually complementary persons who seal (consummate or complete) their relationship by the generative act—by the kind of activity that is by its nature fulfilled by the conception of a child. So marriage itself is oriented to and fulfilled by the bearing, rearing, and education of children. The procreative-type act distinctively seals or completes a procreative-type union.

[…]

Given the marital relationship’s natural orientation to children, it is not surprising that, according to the best available sociological evidence, children fare best on virtually every indicator of wellbeing when reared by their wedded biological parents. Studies that control for other relevant factors, including poverty and even genetics, suggest that children reared in intact homes fare best on the following indices.

We cite some evidence suggesting that mothers and fathers tend to bring different strengths to the parenting enterprise. But we think that everyone in this debate should support rigorous studies designed to compare directly various parenting arrangements, and executed by teams of sociologists that disagree on the moral questions about sex and marriage, so that all are pre-committed to the results. We also expect, however, that few would take the sociological results as decisive on the central issue (what is marriage?), just as we did not in our article. But this raises a question: Does Yoshino deny that children deserve to be raised, wherever possible, by a mother and father—that this is worth promoting as an ideal?

Finally, having ignored our central arguments, made unwarranted linguistic associations, indulged in pejorative labeling, and studiously ignored every challenge we pose, Yoshino ends with a resounding declaration of victory: Even the best argument available against gay civil marriage fails, because it “denies” marriage to same-sex partners only by “denigrating” and “demeaning” the marriages of many opposite-sex couples. But Yoshino would be warranted in declaring victory only if he had given good reasons for rejecting our actual arguments, and provided his own answer to the central question of what marriage is. He did neither.


Robert P. George is McCormick Professor of Jurisprudence at Princeton University. Ryan T. Anderson is a PhD Candidate in Political Science at the University of Notre Dame. Sherif Girgis is a PhD Candidate in Philosophy at Princeton University.

Copyright 2010 the Witherspoon Institute. All rights reserved.

At the foundation of our moral thinking is our understanding that some things are worth doing or pursuing for their own sake. It can make sense to act to promote or realize them even when we expect no further benefit from doing so. In other words, they give us more than merely instrumental reasons for acting. When we see the point of performing a friendly act, for example, not for any ulterior reason, but just for the sake of friendship itself—or when we see the point of studying abstract mathematics, the plays and sonnets of Shakespeare, or the structure of distant galaxies just for the sake of knowledge—we understand the intrinsic value of such activities. We grasp the worth of friendship and knowledge (to take just two of many possible examples) not merely as means to other ends, but as ends in themselves. Unlike money or insurance coverage, these goods are not valuable only because they facilitate or protect other goods. Rather, they are themselves constitutive aspects of our own and others’ fulfillment as human persons.

Of course, feelings and emotions can and do motivate our actions. But the point here is that certain intrinsically worthwhile ends or purposes—like friendship and knowledge—do not appeal merely to our emotions, considered entirely apart from rational reflection and judgment. They also appeal to our understanding—what Aristotle called our “practical reason.” Thus, a complete account of human action cannot leave out the motivating role of reasons provided by ends or purposes whose intrinsic worth we grasp in intellective acts—what are sometimes called “basic human goods.” Indeed, often it is the case that we desire to do something as a result of our rational grasp of its inherent value. Apart from our rational judgment that it is worth doing—i.e., that it provides a benefit and, thus, has an intelligible point—we would simply have no desire to do it.

It is this truth that the brilliant 18^th century philosopher David Hume spectacularly missed in proclaiming that “reason is, and ought only to be, the slave of the passions, and may pretend to no office other than to serve and obey them.” For Hume, in other words, our brute desires specify our ultimate goals (e.g., survival), and the most that reason can do is tell us how to achieve those goals (e.g., eat this, refrain from eating that). But human deliberation and action are a great deal more complex (and interesting) than Hume’s purely instrumental account of our practical reasoning—his reduction of reason to the role of emotion’s ingenious servant—would allow. Our practical reason also makes possible judgments regarding which goals are intelligibly worth pursuing for their inherent benefits, and which, by implication, are merely instrumentally valuable or not of any value at all.

If someone performs a friendly act just for the sake of friendship itself, and not solely for some ulterior motive (which would, after all, render it something other than a true act of friendship), we are not left baffled by it, as we would be left baffled by, for example, someone who for no reason beyond the act itself spent time repeatedly closing and opening a closet door, or walking up and down a busy street informing complete strangers that he likes the flavor of artichokes. Indeed, we grasp the intelligible point of an act of friendship even if we regard the particular act as one that is not strictly required as a matter of friendship, and, indeed, even if we judge the particular act, though motivated by friendship, to be morally forbidden. (Consider, for example, someone’s telling a lie to protect the reputation of a friend who has done something disgraceful. Even if we make the moral judgment that such an act ought not to be done, we can understand the point or benefit of someone’s doing it. We might well criticize such an act, but we would not find it baffling.) We understand friendship as an irreducible aspect of our own and other people’s well-being and fulfillment.

But again, friendship and knowledge are merely two of many aspects of our well-being and fulfillment as human persons. We human beings are complex creatures. We can flourish (or decline) in respect of various aspects of our nature. For example, we are bodily creatures—organisms—and therefore can flourish (or decline) in respect of our physical health. We are rational, and therefore can flourish (or decline) in respect of our intellectual well-being. We are moral agents, and therefore can flourish (or decline) in respect of our character. Although we are individuals, relationships with others in a variety of forms of friendship and community are intrinsic aspects of our flourishing, and not merely means to the fuller or more efficient realization of common individual goals. And we can certainly flourish (or decline) in respect of the richness and quality of our relationships. The list could go on. My point is that the human good is variegated. There are many basic human goods, many irreducible (and irreducibly different) aspects of human well-being and fulfillment.

The variegated nature of human flourishing, and the fact that basic human goods can be instantiated in an unlimited number of persons in an unlimited number of ways, means that we must make choices. Of course, many of our choices, including some serious and even tragic ones, are choices between or among morally acceptable options. No moral norm narrows the possibilities to a single uniquely correct option. But moral norms often do exclude some possible options, sometimes even narrowing them to one. How can that be?

Among those who share the view that morality is, in a deep sense, about human flourishing, there are two main schools of thought. The first, known as utilitarianism (or, more broadly, as consequentialism), proposes that people ought always to adopt whichever option offers the best proportion of benefit to harm overall and in the long run. There are many problems with this proposal, but the most fundamental is that it presupposes, quite implausibly, that different realizations of the human goods available in options for choice (e.g., this human life, that friendship, this part of someone’s knowledge, those aesthetic or religious experiences) can be aggregated or netted (and thus substituted) in such a way as to render the idea of “the net best proportion of benefit to harm” coherent and workable.

This is a mistake. To say, for example, that friendship and knowledge are both basic human goods is not to say that friendship and knowledge are constituted by the same substance (“goodness”) manifested in different (but fully replaceable) ways or to different degrees. They are, rather, two different things, reducible neither to each other nor to some common factor of value. To say that friendship and knowledge are basic human goods is merely to say that they have this, and only this, in common: each can provide us with a reason for acting whose intelligibility as a reason is dependent neither on some further or deeper reason nor on some subrational motivating factor to which it is a means.

This point can be seen by reflecting on what is lost or foregone in choices between truly good but mutually exclusive options. The good of the option not chosen is simply not to be found in the option that is; this is why regret is possible even when we make good choices. If the utilitarian presupposition of commensurability were sound, then the “best” option would contain all the good contained in the other options, plus more. There would be nothing to regret.

The alternative to utilitarianism, at least for those who believe that ethical thinking proceeds from a concern for human well-being and fulfillment, is what is sometimes called “natural law” ethics. Its first principle of moral judgment is that one ought to choose those options, and only those options, that are compatible with the human good considered integrally—that is to say, with an open-hearted love of the good of human persons considered in all of its variegated dimensions. The specifications of this abstract master principle are the familiar moral precepts that most people, even today, seek to live by and to teach their children to respect, such as the Golden Rule (“do unto others as you would have them do unto you”), the Pauline Principle (“never do evil that good may come of it”), and Kant’s categorical imperative (stated most vividly in the maxim that one ought to “treat humanity, whether in the person of yourself or others, always as an end, and never as a means only”). When applied to the basic human goods as opportunities for them arise in the concrete circumstances of life, these precepts yield fully specific moral norms such as those forbidding murder, rape, torture, enslavement, and genocide. The movement of thought from our grasp of the many dimensions of human well-being and fulfillment to the first principle of morality and its specification in the form of more concrete norms of conduct is fundamentally—and decisively—the work of reason.


Robert P. George is McCormick Professor of Jurisprudence at Princeton University and a member of the Task Force on the Virtues of a Free Society of the Hoover Institution at Stanford University. He is co-author of Body-Self Dualism in Contemporary Ethics and Politics. This essay first appeared as part of a Templeton Foundation “conversation” on reason.

Copyright the Witherspoon Institute, 2010. All rights reserved.

In my judgment, citizens who honor and seek to protect the lives of vulnerable unborn children must oppose the Obama administration’s agenda on the taking of unborn human life. Our goal must be to frustrate at every turn the administration’s efforts, which will be ongoing and determined, to expand the abortion license and the authorization and funding of human embryo-destructive research. Because the President came into office with large majorities in both houses of Congress, ours is a daunting task. But the difficulty of the challenge in no way diminishes our moral obligation to meet it. And I here call upon pro-life Americans, including those who, like Professor Kmiec, supported President Obama and helped to bring him to power, to find common ground with us in this great struggle for human equality, human rights, and human dignity.

Professor Kmiec and I share common ground in the belief that every member of the human family—irrespective of race, class, and ethnicity, but also irrespective of age, size, location, stage of development or condition of dependency—is entitled to our care and respect and to the equal protection of our laws. This is what it means to be pro-life. In this shared conviction, Professor Kmiec and I are on one side of a crucial divide, and President Obama is on the other. Professor Kmiec and I stand together in our opposition to abortion and human embryo-destructive research, but we share very little common ground on these matters with President Obama and those whom he has appointed to high office who will determine the fate of vast numbers of our weakest and most vulnerable brothers and sisters.

I appreciated the President’s candor at Notre Dame when he said:

“Now understand, understand, class of 2009, I do not suggest that the debate surrounding abortion can or should go away. Because no matter how much we may want to fudge it . . . the fact is that at some level the views of the two camps are irreconcilable.”

The President is right. His view regarding the status, dignity, and rights of the child in the womb, and the view shared by Professor Kmiec and myself, are irreconcilable. A chasm separates those of us who believe that every living human being possesses profound, inherent, and equal dignity, and those who, for whatever reasons, deny it. The issue really cannot be fudged, as people sometimes try to do by imagining that there is a dispute about whether it is really a human being who is dismembered in a dilation and curettage abortion, or whose skin is burned off in a saline abortion, or the base of whose skull is pierced and whose brains are sucked out in a dilation and extraction (or “partial birth”) abortion. That issue has long been settled—and it was settled not by religion or philosophy, but by the sciences of human embryology and developmental biology.

So it is clear that what divides us as a nation, and what divides Barack Obama, on one side, from Robert George and Douglas Kmiec, on the other, is not whether the being whose life is taken in abortion and in embryo-destructive research is a living individual of the human species—a human being; it is whether all human beings, or only some, possess fundamental dignity and a right to life. Professor Kmiec and I affirm, and the President denies, that every human being, even the youngest, the smallest, the weakest and most vulnerable at the very dawn of their lives, has a life which should be respected and protected by law. The President holds, and we deny, that those in the embryonic and fetal stages of human development may rightly and freely be killed because they are unwanted or potentially burdensome to others, or because materials obtained by dissecting them may be useful in biomedical research.

The President speaks of human rights, and I do not question his sincerity. But he does not understand the concept of human rights, as Professor Kmiec and I do, to refer to rights—above all the right to life—that all human beings possess simply by virtue of our humanity. For the President, being human is not enough to qualify someone as the bearer of a right to life. Professor Kmiec and I, by contrast, believe that every member of the human family, simply by virtue of his or her humanity, is truly created equal. We reject the idea that is at the foundation of President Obama’s position on abortion and human embryo-destructive research, namely, that those of us who are equal in worth and dignity are equal by virtue of some attribute other than our common humanity—some attribute that unborn children have not yet acquired, justifying others in treating them, despite their humanity, as non-persons, as objects or property, even as disposable material for use in biomedical research.

President Obama knows that an unborn baby is human. He knows that the blood shed by the abortionist’s knife is human blood, that the bones broken are human bones. He does not deny that the baby whom nurse Jill Stanek discovered gasping for breath in a soiled linen bin after a failed attempt to end her life by abortion, was a human baby. Even in opposing the Illinois Born-Alive Infants Protection Act, which was designed to assure that such babies were rescued if possible or at least given comfort care while they died, Barack Obama did not deny the humanity of the child. What he denied, and continues to deny, is the fundamental equality of that child—equality with those of us who are safely born and accepted into the human community.

During his campaign for the Presidency, then-Senator Obama was asked by Rick Warren: When does a baby acquire human rights? In reply, the future president did not say, “well it depends on when a baby (or a “fetus”) comes to life, or becomes a human being.” He knows that an unborn baby is alive and human, and he did not pretend not to know. His response to Pastor Warren did seem to express doubt of as to when rights begin, saying that the question was “above his pay grade.” But Obama’s record as an activist, legislator, and now as President makes clear his view that an unborn baby, or even a baby outside the womb like the one discovered in that soiled linen bin by Jill Stanek, possesses no rights that others are bound to respect or that the law should in any way honor. Throughout his political career, Obama has consistently and fervently rejected every form of legislation that would provide unborn babies or children who survive abortions with meaningful protection against being killed. Indeed, he has opposed even efforts short of prohibiting abortion that would discourage the practice, limit its availability, or directly favor childbirth over abortion.

Professor Kmiec and I believe in the equal fundamental rights of all, including the equality of mother and child. We recognize that women with undesired pregnancies can undergo serious hardships, and we believe that a just and caring society will concern itself with the well-being of mothers as well as their children. We agree with Mother Teresa of Calcutta, who by precept and example taught us to reach out in love to care for mother and child alike, never supposing that love for one entails abandoning care and concern for the other. President Obama holds a different view. He has made clear his own conviction that the equality of women depends on denying the equality and rights of the children they carry. He has made what is, from the pro-life point of view, the tragic error of supposing that the equality of one class of human beings can and must be purchased by denial of the equality of another.

One wishes that President Obama had listened carefully, and with an open mind and an open heart, to the pleas of Mother Teresa during her last visit to the United States. Her message was that a pregnant woman in need is not in need of the violence of abortion. What she and her child need are love and care—love and care from all of us. Our task, Mother reminded us, as individuals and as a society, is to love and care for mother and child alike.

President Obama’s supporters do him no good service by pretending that his expressions of willingness to find “common ground” with pro-lifers involve, at some level, recognition that abortion or embryo-destructive research is bad or tragic because it kills a living member of the human family. Unlike, say former President Clinton or former New York Governor Cuomo, or even Vice President Biden, President Obama does not profess to be “personally opposed” to abortion, or to believe that abortion is a wrongful act that must nevertheless be legally permitted because the consequences of outlawing it would be worse than those of tolerating it. His belief, and his policy, is that abortion, if a woman chooses it, is not wrong. That is why he is not personally opposed to it. There is no wrong there to oppose. Indeed, the President made crystal clear his view that abortion can be an entirely legitimate and even desirable option, when he said that if one of his daughters made a mistake and became pregnant, he would not want her to be “punished with a baby.” In such a case, he saw abortion as the right solution to a problem—a solution that we should be happy is available, and that we should make available if it happens not yet to be available. Without it, a young woman would be “punished.”

I have no doubt that the President regards it as deeply unfortunate, sometimes even tragic, that the problem giving rise to the woman’s need for an abortion exists; but there is equally no room to doubt that President Obama regards it as fortunate that a solution to the problem—in the form of abortion—is available. For someone holding this view, and many people in the academic world hold it, abortion is not in itself a bad or wrongful thing, any more than a knee replacement operation is in itself a bad or wrongful thing. Of course, it would be better if no one ever injured a knee and found himself in need of a knee operation. No one regards knee operations as desirable for their own sakes. No one deliberately injures himself just so that he can have a knee operation. And people don’t have knee operations performed on them for frivolous reasons. But a knee operation is not something that one would discourage or be personally opposed to. It is a solution to a problem, and should therefore be made as available and accessible as possible for people who need them. For those who share President Obama’s view of the moral status of the child in the womb, the decision to abort may be more wrenching for many women than the decision to have a knee operation typically is, but it is like a knee operation precisely inasmuch as it is a legitimate solution to a problem.

All of this was made transparently clear at a recent meeting at the White House in which people on both sides of the abortion issue were brought together to see if they could find some common ground. The meeting was led by Melody Barnes, the Director of the President’s Domestic Policy Council and a former board member of Emily’s List, one of the nation’s most aggressive organizations devoted to legal abortion and its public funding. At one point in the meeting, she recognized pro-life activist Wendy Wright, who attempted to explain ways that the President could begin to achieve his reported goal of reducing the number of abortions. Barnes interrupted her to make clear that the precise goal of the administration is to “reduce the need for abortions.” Two days after the meeting, the President spoke at Notre Dame, and he chose his words carefully. In speaking of common ground, he did not propose that we reduce the number of abortions, but rather [and I quote] “the number of women seeking abortions.” Get it? The President and his administration will not join us on the common ground of discouraging women from having abortions or even in encouraging them to choose childbirth over abortion. The proposed common ground is the reduction of unwanted pregnancies—not discouraging those in “need” of abortion from having them. The idea that the interests of a child who might be vulnerable to the violence of abortion should be taken into account, even in discouraging women from resorting to abortion or encouraging alternatives to abortion, is simply off the table.

The President and the people he has placed in charge of this issue, such as Melody Barnes, have a deep ideological commitment to the idea that there is nothing actually wrong with abortion, because the child in the womb simply has no rights. This commitment explains the policy positions President Obama has consistently taken since he entered the Illinois legislature. It crucially shapes and profoundly limits what he and those associated with him regard as the “common ground” on which he is willing to work with pro-lifers. And it explains why he and they reject what we, as pro-lifers, propose as common ground.

Because the President does not believe in the profound, inherent, and equal dignity of every member of the human family; because he does not believe that babies acquire human rights until after birth; because he does not see abortion as tragic because it takes the life of an innocent human being, he is utterly and intransigently unwilling to support even efforts short of prohibiting abortion that would plainly reduce the number of abortions. Moreover, he is adamantly in favor of funding abortions and abortion providers at home and abroad, and has already taken steps in that direction by revoking the Mexico City Policy and proposing a budget that would restore publicly funded abortions in Washington, D.C.—despite the well-documented and universally acknowledged fact that when you provide public funding for abortion, you get more abortions.

Some pro-choice people think that the killing of unborn children where there is no grave threat to the mother, though bad and unjust, should not be made illegal at least in the earliest stages. Potentially we would have significant common ground with these fellow citizens in the form of policies to discourage abortion and reduce the number of killings. For example, we could join together to oppose the funding of abortion at home and abroad; we could work together for bans on second and third trimester abortions, on abortions for sex-selection, and on particularly heinous methods of abortion, such as partial-birth abortions; we could agree on what Professor Hadley Arkes calls “the most modest first step of all,” namely requiring care—at least comfort care—for the child who survives an attempted abortion and is born alive. We could provide desperately needed financial support for pro-life clinics that assist pregnant women in need—need that is not always financial, but is often emotional and spiritual—and encourage and help these women make the choice for life. We could enact waiting periods, informed consent laws, and parental notification laws that have been shown, in research by Michael New and others, to reduce abortions. We could reject the funding of embryo-destructive research, and join together to support promising research and treatments using non-embryonic sources of stem cells.

However, far from meeting us on any of these areas of common ground, President Obama opposes our efforts. Political realities have prevented him from making good on his promise to the abortion industry to sign the pro-abortion nuclear bomb called the Freedom of Choice Act as one of his first acts in office. But he was not lying when he made that promise. His policies, and above all his appointments to key offices in the White House, the Justice Department, Health and Human Services, and elsewhere make clear that his strategy will be to enact the provisions of FOCA step by step, rather than as a package. As anyone occupying the role of David Axelrod or Karl Rove will tell you, this is obviously the politically astute way for the President to prosecute his agenda. The country does not accept President Obama’s extreme position on abortion. A recent poll showed that a majority of Americans now regard themselves as pro-life, and a majority favors significant legal restrictions on abortion. Plainly the President’s actual views are far more favorable to abortion than those of the general public; so if he is to advance his goals, and the goals of those who share his commitment to making abortion more widely available and easily accessible, the last thing it would make sense to do is try to enact FOCA as a package.

At Notre Dame, the President offered to work with pro-lifers to draft what he called “sensible” conscience protections for pro-life physicians and other health care workers. This favorably impressed some in the pro-life community, especially since one of President Obama’s first acts was to rescind conscience protection regulations supported by the pro-life community that had been put into place by the Bush Administration’s Department of Health and Human Services. Here, alas, I must urge caution. It seems to me overwhelmingly likely that the key word in the President’s offer is “sensible.” What is “sensible” to him, I predict, is precisely what is regarded as sensible by the Committee on Ethics of the American College of Obstetricians and Gynecologists, namely, requiring physicians to refer for abortions, even if their consciences forbid it, and allowing pro-life obstetricians and gynecologists to refuse to perform abortions only when it is clear that an abortion can be provided by a willing physician in the area. For physicians and surgeons who believe that abortion is unjust killing and a grave violation of human rights, this is not sensible. It is ominous. I beg the President’s pro-life supporters urgently to request from him a statement clarifying the meaning of “sensible” conscience protection. If it means weakening current laws, so doctors will be compelled to refer for abortions and in so-called emergencies even to perform abortions, then even here pro-life citizens have no common ground with the President of the United States.

Finally, let me say a word about a matter that has been of deep concern to me—the expansion of federal funding for embryo-destructive research. I regret that the President passed up a golden opportunity to establish true common ground with pro-life citizens. He could have left the funding of research involving cell lines created by the destruction of human embryos in place, and led the charge to promote ethically unproblematic non-embryo-destructive forms of stem cell science. He could have rallied the nation around adult stem cell science and brilliant new technologies for the production of pluripotent stem cells that manifest the very qualities that make embryonic stem cells interesting and potentially useful. He could have shown that we can give both sides in the great stem cell debate what they want—the promise of stem cell science, without the moral stain of embryo killing. But the President did not do that. He revoked the restrictions on funding research involving embryonic stem cell lines created after August 9, 2001. He even took the additional step of revoking President Bush’s 2007 executive order promoting research to advance non-embryo-destructive sources of pluripotent stem cells. Finally, he opened the door to funding research involving stem cell lines created by producing human embryos by somatic cell nuclear transfer or other means specifically for research in which they are killed. He delegated the details of any new guidelines to the National Institutes for Health. The NIH, under Acting Director Raynard Kington, a Bush-administration holdover, recently published its draft guidelines, which mercifully decline to walk through the door the President opened. For now, at least, there will be no funding of research involving embryos created just for destruction. If the President’s pro-life supporters are partially responsible for this piece of good news, they deserve our sincere thanks, and I here heartily offer mine. The NIH guidelines also include strong consent rules for parents. Already the supporters of embryo-destructive research and so-called “therapeutic cloning” are pressing the NIH to reverse course in both these areas. For that reason, I plead with all who believe in respect for human life, and especially those whose support of the President politically has given them influence with him and his administration, to work tirelessly to ensure that there is no further expansion of funding for embryo-destructive research or weakening of current consent requirements.

The common ground I am interested in is with pro-life Americans who, like Professor Kmiec, have supported the President politically. The election is over, and the current question is not who anyone thinks will do the best job as President, or even whether one may legitimately support candidates who deny the fundamental dignity and right to life of unborn human beings and who promise to protect and extend the abortion license and expand the funding of embryo-destructive research. The question is: On which issues will we support the President’s direction, and on which will we challenge him because he is heading in the wrong direction? Those pro-life Americans who voted for him and support him should not object when we speak for the most vulnerable and defenseless of our fellow human beings, even when that means severely criticizing the President’s policies. They should stand with us on common ground, and join their voices with ours.

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is a member of the President’s Council on Bioethics and of UNESCO’s World Commission on the Ethics of Scientific Knowledge and Technology. He sits on the editorial board of Public Discourse. This article is based on the text of remarks given at a debate between Robert P. George and Douglas W. Kmiec at the National Press Club on May 28, 2009.

Copyright 2009 the Witherspoon Institute. All rights reserved.

Charlotte didn’t go to college looking for booze or hook ups. Yet, like most of her peers, she found herself drawn into it—and who could blame her? Culture influences conduct. Students want to be—and want to appear to be—normal. So it is hardly surprising that many will be swayed by whatever happens to be regarded as the norm.

Like the fictional “DuPont,” Princeton, where we teach, is a wonderful university; but like other colleges and universities there is a dark side to its social life. Our students are bright, enthusiastic, and eager to learn. Most did not come to college bent on boozing and hooking up. Many feel deeply ambivalent about these aspects of campus life. Yet, they find little support on campus for the “alternative lifestyle” of living by traditional moral virtues.

More than a few freshmen of both sexes arrive believing that romantic relationships are properly oriented toward marriage and that sex belongs in marriage, not outside it. They do not want hook ups; instead, they aspire to what an earlier generation would have called courtship. How hospitable are colleges and universities to these students?

Whether it is a private institution such as Yale or a public one such as the University of Delaware, the truth is that things begin going badly for them right off the bat. Princeton is all-too-typical. As part of the freshman orientation program, students are required to attend an event entitled “Sex on a Saturday Night.” It consists of a series of skits ostensibly designed to discourage “date rape.” For years, critics have contended that the play, which features vulgarity and suggestive conduct, does nothing to serve this laudable goal; rather, it reinforces the campus culture of sexual permissiveness, primarily by shaping students’ expectations to include sexual license as normal.

And then there is “Sex Jeopardy” (officially “Safer Sex Jeopardy”), an event that Princeton freshmen are “strongly encouraged” by the University to attend. Modeled on the long running television game show, this activity invites students to show off their knowledge of such topics as anal intercourse, flavored condoms, dental dams, sex toys, and sado-masochism. As described by one female student, Sex Jeopardy is “suffused with sexual bravado and conveys the strong impression that only someone with hang ups would have a moral problem with hook ups.”

Colleges and universities across the country sponsor countless events and programs such as these that, however well-intentioned, tend to reinforce libertine attitudes towards sexuality and relationships and to marginalize and even stigmatize traditional ideas about virtue, decency, and moral integrity. Just think about “Sex Week” at Yale, which these days scarcely raises eyebrows.

What can be done?

Most universities have established non-academic centers of various kinds that provide educational, social, and counseling support. Princeton is again typical. We have the Women’s Center, the International Center, the Lesbian Gay Bisexual Transgender (LGBT) Center, and the Center for Equality and Cultural Understanding. Whether or not one agrees with the ideological bent of some of these centers, at least they represent the University’s effort to meet what are perceived as the needs of certain segments of our student body.

Moreover, university health centers and residential advising programs typically provide assistance on body-image and eating disorders, binge drinking and alcohol abuse, and sexual health and sexual harassment.

Conspicuously absent, however, are centers or programs offering meaningful support for students who desire to live chastely. “Sexual health” offices do not supply the need because staff members see their roles, not as promoting self-discipline and high moral standards, but as providing “non-judgmental” advice about how to have sex while avoiding pregnancy and sexually transmitted diseases and infections.

So while universities are willing to speak out on the dangers of alcohol abuse, eating disorders, and date-rape, they sometimes treat as privileged—in practice, if not in theory—the moral view that any sexual conduct someone happens to desire is good, healthy, and acceptable, so long as it is consensual and “safe” from the risks of pregnancy and disease.

But this is not fair to students who see things differently. Nor is it fair to students, especially women, who experience pressure to make themselves sexually available as the price of being treated as normal and feeling accepted. Dr. Miriam Grossman, a psychiatrist formerly at the UCLA Health Center and an important writer on the collegiate hook up culture, notes the widespread phenomenon of young women who abuse alcohol to overcome their reluctance to behave promiscuously. Our own students tell us that the link between binge-drinking and the hook-up culture reported by Dr. Grossman is all-too-real. Can we not all agree that this is a tragedy?

To help to come to terms with these problems, some thoughtful and concerned students at Princeton and other universities have proposed the establishment of centers on campus to support students who seek to lead lives of moral integrity and decency. We are sure that alumni and friends would step forward with financial support to make such “Love and Fidelity Centers” possible. A single generous alumni donor could make an enormous difference at his or her alma mater by contributing a sum far smaller than what would be required to establish an endowed chair or renovate a building.

Some universities, including Princeton, have student-run societies for students who oppose the hook up culture and wish to support each other in resisting it. The emergence of these societies is encouraging, but they are only part of the solution. Students are strapped for time and don’t have the experience or professional skills to provide the level of guidance and support that their peers need when it comes to important questions of sexuality and morality. Universities know this—that’s why at Princeton, for example, in addition to the student gay Pride Alliance, the Queer Graduate Caucus, LGBT Task Force, and the LGBT Staff and Faculty Group, there is the University’s LGBT Center, with a full-time paid University staff member committed to LGBT support and activities. For the same reasons, there needs to be university support for students who want to live and conduct their relationships honorably in the face of the hook-up culture.

The needed centers would serve three functions: First, they would sponsor intellectual events featuring scholars from the social sciences, philosophy, psychiatry, medicine, art, religion, history, and literature. Some of these events would no doubt be co-sponsored by LGBT centers and other units that would enable students to consider competing points of view on matters of sexual morality, marriage, and romantic relationships. Second, they would provide alternative social venues and special events for those like-minded in their commitment to chastity and those who simply seek a night out without the pressures of sexual expectations. This is by no means a foreign idea, as LGBT centers provide similar services for students whom they seek to serve. Third, centers would support students in their efforts to conduct their lives in line with their beliefs and to live up to the standards of morality they set for themselves. They would provide literature, sympathetic ears, and appropriate referrals.

Tom Wolfe’s “Dupont University” is in fact every campus. Colleges and universities need to open their eyes, and then their minds and hearts, to the needs of students who struggle to lead chaste lives despite their immersion in the culture of promiscuity that Wolfe so vividly describes. Which institution of higher learning will be the one bold—and compassionate—enough to lead the way?

Resources:

Princeton University’s Anscombe Society

The Love and Fidelity Network

“Collegiate Sex-Ed” by Ryan T. Anderson, Public Discourse

“Struggling Alone” by Ryan T. Anderson, First Things

Robert P. George and John B. Londregan are professors in Princeton’s Department of Politics. A version of this article originally appeared in the Princeton Alumni Weekly.

Copyright 2009 the Witherspoon Institute. All rights reserved.

It is clear that in Afghanistan, and even in Iraq, Obama’s policies will differ little in substance from what we would have had in a McCain presidency or a third Bush term. The new president has already increased the number of U.S. troops in Afghanistan and he has quietly conceded that U.S. soldiers will have to remain in Iraq for some time to come. He has officially ordered the closing of the detention facility at Guantanamo Bay, Cuba within one year, but evidently he has not resolved the question of where the terrorists who are detained there will go or how their cases will be handled. His options are limited and none are good. It seems increasingly likely that Guantanamo will get an extension.

Apart from a few essentially symbolic changes, Obama will of necessity follow the broad outlines, and many of the details, of the Bush policy on surveillance and counterterrorism intelligence. He is fully aware of the political price he and his party would pay if he dismantled the Bush policy and then the country suffered another terrorist attack.

If President Obama’s left-wing supporters ever actually believed that American policy under Obama would be to stop talking tough to Iran and start getting tough with Israel, they will be disappointed. Here, too, the Obama administration’s actual policies, for now at least, will look more like than unlike those of the Bush administration.

Although no one would have predicted it before the economic meltdown in September, it now appears that the same will be true in key areas of economic policy. In the short run, at least, Obama is unlikely to raise anybody’s taxes. In the midst of a recession whose depth and duration is worryingly uncertain, it would be folly for the new president to try to fulfill his campaign promise to “spread the wealth” by increasing the tax burden on corporations and the affluent. And whatever Barack Obama is, he is no fool.

Nancy Pelosi and others on the left fringe of the Democratic Party will squawk about this, but their position is intellectually weak and is regarded as being so even by most liberal economists. Pelosi will have no effective way of holding Obama’s feet to the fire on tax increases, at least for the first two years.

Obama’s top appointments in the areas of national security, foreign affairs and economics reflect the political realities he is facing and signal the trajectory of his policies. As the Los Angeles Times has remarked, “the cabinet nominated by President-elect Barack Obama is a largely centrist and pragmatic collection of politicians and technocrats without a pronounced ideological bent.” The Times no doubt had in mind Republican Robert Gates (Bush’s own Secretary of Defense, whom Obama has chosen to retain in that position), and James L. Jones, who occupy key national security slots, as well as Lawrence Summers and Tim Geithner, who are slated to lead the Obama economic team.

So what will the left get? How will Obama pay his debt to his base and keep them chanting “Yes we can!”?

The left will get huge spending programs, of course, and a “stimulus plan” stuffed with pork. They will probably also get the abolition of the secret ballot in union elections, though here Republicans in Congress will put up a fight.

More sweepingly, the left will get, fully and without dilution, victory on the moral and cultural issues. And this means Obama will deliver a left-liberal litmus test for appointments in the Department of Health and Human Services and related agencies, in the Department of Justice, and in the federal courts. There are two reasons for this: (1) politically, these are the only substantial issues on which Obama can afford to give the left everything it demands; and (2) his own views conform perfectly to the left-liberal orthodoxy on these matters.

Expect Obama’s key judicial nominees, then, to be left-liberals, many drawn from the academic establishment where left-liberal ideology is found in its purest form and where Obama’s own worldview was shaped. Do not, however, expect them to be Daily Kos-style fire-breathers. They will be sophisticated and accomplished people who will be regarded—justly—as possessing the intelligence, training, and temperament that everybody agrees we should be looking for in judicial nominees.

Some legal academics who will certainly be considered for appointment to the top U.S. Courts of Appeal and the Supreme Court of the United States are Yale Law School Dean Harold Hongju Koh, Harvard Law School Dean Elena Kagan (who has drawn the nod from Obama for appointment as Solicitor General of the United States), former Stanford Law School Dean (and ACLU attorney) Kathleen Sullivan, and University of Chicago and Harvard law professor Cass Sunstein (whom Obama has tapped to head the White House Office of Information and Regulatory Affairs).

What Obama’s judicial nominees will have in common is a belief that judicial power may legitimately be used, and should be used to achieve left-liberal moral and political goals. Their belief lacks any basis in the text of the Constitution, the logic of its provisions, or its structure and original understanding, but never mind. Some will propose moving quickly, others more cautiously and gradually, but all will subscribe to one version or another of the idea that the “majestic generalities” of the Constitution (free speech, due process, equal protection) need to be given content by judges reading into them ideas such as abolishing the legal definition of marriage as the conjugal union of husband and wife, extending legal abortion, requiring the public funding of abortion, and invalidating parental notification and informed consent laws and laws affording conscience and religious liberty protection to pro-life physicians, healthcare workers, and pharmacists.

The Obama judges are likely to revive the idea (championed by influential liberal legal scholar Ronald Dworkin but rejected in the mid-90s by the Supreme Court) that there is a constitutional right to assisted suicide, and expand constitutional protection of pornography, including “virtual” child pornography that is manufactured without the use of actual children. They will defend preference-based affirmative action policies in hiring and employment as constitutionally warranted efforts to achieve an allegedly compelling state interest in racial, ethnic, and sexual “diversity.” They will likely place further restrictions on religious activities and expression in public schools and other governmental institutions by adopting a broad reading of the “establishment clause” and a narrow reading of the “free exercise” clause of the First Amendment.

We can also expect to see President Obama placate his liberal base on moral and cultural issues through executive orders and the use of his bully-pulpit. Obama has already reversed the Mexico City Policy that prevented American tax dollars from being given to organizations that promote abortions overseas. He has promised to reverse the Bush administration’s restrictions on the funding of embryo-destructive research. He has pledged to repeal the Defense of Marriage Act and to advance the agenda of the “gay” lobby across a wide range of issues.

Will the base be satisfied? Not completely. But the fact is that today many people on the left care more about the moral cultural issues than they do about foreign policy or economics. Their opposition to the war in Iraq and the Bush tax cuts is less intense than their support for “same-sex marriage” and the public funding of abortions. So, many will consider that they got a pretty good deal from Obama, even if he doesn’t reverse course from the Bush administration on foreign affairs and national security policy or raise taxes as quickly or dramatically as he promised.

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is a member of the President’s Council on Bioethics and of UNESCO’s World Commission on the Ethics of Scientific Knowledge and Technology. He sits on the editorial board of Public Discourse.

Copyright 2009 the Witherspoon Institute. All rights reserved.

The Bush council included six members (Michael Sandel, Janet Rowley, William F. May, James Q. Wilson, Michael Gazzaniga, and Elizabeth Blackburn) who favored the production of human embryos for biomedical research in which they would be destroyed in the effort to obtain pluripotent stem cells. At least three additional members (Paul McHugh, Rebecca Dresser, and Francis Fukuyama) were not in principle opposed to “therapeutic cloning,” though they were willing to support a four year moratorium on the practice in the hope alternatives not involving cloning could be developed. At least one additional member (Charles Krauthammer), though opposed to the deliberate creation by cloning of embryos for research in which they would be destroyed, supported the revocation of President Bush’s funding restrictions on the use of embryos that had been produced by in vitro fertilization for reproductive purposes, but were left unused in cryopreservation units in assisted reproduction facilities.

Although President Bush got no credit for it, he had created a council that represented the range of viewpoints held by reasonable and responsible Americans on the most urgent and divisive bioethics questions facing the country. This enabled his council to produce reports that improved the quality of public debate by equipping citizens and policy makers with solid factual information vetted by experts representing different points of view on key ethical questions, and informing them of the best arguments available on competing sides of hot-button issues.

It is likely that President Obama will soon constitute a bioethics advisory council of his own. When he does, will he favor the country with a council as diverse as his predecessor’s? Will as many as a third of its members have been McCain supporters? Will nearly half hold strong pro-life views that contradict the President’s own beliefs about the moral status of the human embryo and related questions? Will Obama be as open to differing perspectives and ideas as Bush was?

If not, what will the bioethicists and others who originally complained about Bush allegedly “stacking” his council with like-minded people say? What will we hear from writers and commentators in the media who reported that Bush had stacked the Council with religious conservatives?

During the recent campaign, many conservative pundits complained that the media was in the tank for Obama. It looks like we will now get a straightforward and decisive test of the media’s objectivity. Writers such as Rick Weiss of the Washington Post were wrong about Bush. He did not stack his bioethics council with people who agreed with him. What if Obama does just that, though? Will the public be told? Or will the media apply a double standard? If Obama stacks his council with social liberals, will the contrast with the Bush council be noted? Or will the media implicitly adopt the view that a council stacked with liberals isn’t really “stacked”?

Regardless of what the media does, future Republican and conservative presidents should be guided by Obama’s decision. If he follows Bush’s lead and appoints a diverse council, they should do the same. His decision would ratify a certain way—entirely noble—of using bioethics advisory councils to enhance the overall quality of deliberation and debate. If, however, Obama repudiates Bush’s openness to permitting a range of voices on the council, including a fair representation of dissenters from his own views, then future Republican and conservative presidents should not allow themselves to be played as fools. Obama will have established different terms for conducting the debate—terms according to which the role of bioethics councils is to advance the president’s own preordained agenda on bioethics questions, not to provide thoughtful argumentation enriched by the inclusion of perspectives that are critical of the president’s beliefs. There is nothing inherently dishonorable about constituting a council this way, but when liberals (wrongly) thought it was what Bush had done, they cried foul.

In the all-too-likely event that the media adopts a double standard, there isn’t much that anybody can do about it. Conservative pundits will merely enjoy the cold comfort of saying “I told you so.” But if President Obama pushes aside Bush’s openness to a council that will provide him with a diversity of ideas and opinions, he and his party should not be permitted to benefit from a double standard. When the Republicans return to power, as sooner or later they will, this is one area in which they should follow Obama’s lead—in either direction.

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is a member of the President’s Council on Bioethics and of UNESCO’s World Commission on the Ethics of Scientific Knowledge and Technology. He sits on the editorial board of Public Discourse.

Copyright 2009 the Witherspoon Institute. All rights reserved.

These men probably had no idea that they were unleashing a struggle for the soul of the nation. Five had been appointed by Republican presidents—two by Eisenhower, three by Nixon. Four of these five were regarded as “conservative,” “law and order” judges: Warren E. Burger, Potter Stewart, Lewis F. Powell, and Harry Blackmun. All no doubt believed that legal abortion was a humane and enlightened policy, one that would ease the burdens of many women and girls and relieve the enormous cost to society of a high birth rate among indigent (often unmarried) women. They seemed blithely to assume that abortion would be easily integrated into the fabric of American social and political life.

They were wrong on all counts.

They were wrong about the Constitution. As William H. Rehnquist and Byron White, the two dissenting justices in the case, pointed out, it is absurd to claim that a right to feticide follows from the constitutional injunction that “no state shall deprive any person of life, liberty, or property without due process of law.” If the Constitution can be read to imply anything about abortion, it is that unborn human beings are, like everyone else, entitled to “the equal protection of the laws.” At a minimum, Roe and Doe were an outrageous usurpation of the constitutional authority of the people of the United States to shape law and policy through the institutions of representative government.

The Roe justices were also wrong to imagine that legal abortion would prove to be enlightened or in the slightest respect humane. On the contrary, the policy imposed by the Court has proven to be an unmitigated disaster. In the thirty-six years since Roe and Doe, abortion has taken the lives of more than fifty million unborn victims—each a distinct, unique, precious human being. It has done immeasurable moral, psychological, and sometimes physical harm to women who are so very often, and in so many respects, truly abortion’s “secondary victims.” It has corrupted physicians and nurses by turning healers into killers. It has undermined the moral authority of the law by its injustice. It has abetted irresponsible—even predatory—male sexual behavior. Far from reducing the rate of out-of-wedlock births, particularly to poor women, illegitimacy has skyrocketed in the age of abortion. Now the abortion license has metastasized into widespread elite support for deadly embryo experimentation and even, in my home state of New Jersey, to the express legalization of the horrific and grisly practice of fetal farming—the creation of human beings by cloning or other processes for the purpose of harvesting their tissues and organs at any point up to birth for experimentation and transplantation.

The justices were wrong, moreover, to suppose that America, as a nation, would learn to live with the abortion license. A notable effect of the Court’s rulings was to energize the grassroots pro-life movement that had come into being a few years earlier to resist legislative efforts to liberalize state abortion laws. In the beginning, the movement and its leadership were largely Catholic. The mainline Protestant churches, if they concerned themselves with the issue at all, positioned themselves on the pro-abortion side. At a decisive moment, however, the Evangelical community became fully activated in the cause. Today, a common commitment to defending the unborn is at the heart of an unprecedented Catholic-Evangelical alliance that extends beyond abortion to issues of sexuality and marriage, education, welfare, crime and prison policy, international human rights, and the place of religion in American public life. Great Evangelical leaders such as James Dobson and Charles Colson stand arm in arm with their Catholic brothers and sisters in defending the right to life of every human being, irrespective not only of race, sex, and ethnicity, but also of age, size, stage of development, and condition of dependency. It is this alliance that stands in the gap today in the fight against cloning and embryo-destructive biomedical research.

Abortion and embryo-destructive research are at the heart of the divide between the nation’s major political parties. When Roe and Doe were decided, many Democratic Party politicians—and even some notable liberals—were outspokenly pro-life. Teddy Kennedy, Jesse Jackson, Dick Gephardt, and Al Gore, for example, publicly proclaimed their commitment to defending the unborn against the violence of abortion. Soon, however, the number of pro-life Democrats began to dwindle and pro-life liberals became an endangered species. Some, including Kennedy, Jackson, Gephardt, and Gore, defected to the pro-abortion camp, evidently for political reasons. People of firmer conviction found themselves in many cases carried by the force of conscience out of the Democratic Party and into the Republican fold.

Although pro-abortion Republicans are today more common than pro-life Democrats, and carry much more influence within their party, the Republican Party has been officially pro-life since Ronald Reagan won the presidential nomination in 1980. “Pro-choice” Republican presidential aspirants, such as California Governor Pete Wilson in 1992, Pennsylvania Senator Arlen Specter in 1996, and former New York City Mayor Rudolph Giuliani have failed miserably, and the pro-life majority in the Party has beaten back attempts to nominate individuals who are not clearly pro-life for the Vice Presidency. John McCain clearly wanted to select renegade Democrat Connecticut Senator Joseph Lieberman as his running mate in 2008, but was prevented from doing so for one reason and one reason only: Lieberman’s pro-abortion record made him unacceptable to the base of the Republican Party.

In recent years, pro-abortion Republicans have not even ventured token efforts to remove the strong and unequivocal pro-life plank in the Party’s platform.

The Republican Party’s support for the unborn has brought into its ranks many disaffected rank-and-file Democrats, including a large number of Catholics and Evangelicals. I am one. Indeed, it overstates the matter only a bit to say that, as a result of the conflict of worldviews that began with abortion, the Republicans have become the party of the religiously engaged, while the Democrats have become the party of liberal secularists. Barack Obama is trying to win over religiously serious Catholics and Evangelicals, without altering in the slightest his support for abortion, including late-term and partial-birth abortions, the funding of abortion and embryo-destructive research with taxpayer dollars, the elimination of informed consent and parental notification laws, and the revocation of conscience and religious liberty protections for pro-life doctors and other healthcare workers and pharmacists. He will ultimately fail. We must see to it that he fails.

In this project, Obama is being served and abetted by a small number of Catholic and Evangelical intellectuals and activists who have been peddling the claim that Obama, despite his pro-abortion extremism, is effectively pro-life because of his allegedly enlightened economic and social policies will reduce the number of abortions. This is delusional. The truth is that Barack Obama is the most extreme pro-abortion candidate ever to serve in the United States Senate or seek the Office of President of the United States. The revocation of the Hyde Amendment, the Mexico City Policy, funding limitations on embryo-destructive research, informed consent laws, parental notification statutes—all of which Obama has promised to his pro-abortion base—will dramatically increase the number of abortions, and will do so for reasons that have been articulated by the abortion lobby itself. It is the pro-abortion side that tells us that the Hyde Amendment alone has resulted in 300,000 fewer abortions each year than would otherwise be performed—and that is why they so desperately want it to be repealed. Yet the putatively pro-life Obama apologists claim that the man who pledges to repeal it is going to reduce the number of abortions. Let me say it again: this is delusional.

One great disappointment to the pro-life cause over the first three decades of the era of Roe V. Wade was the failure of Republican presidents from Nixon through George H.W. Bush to secure Supreme Court appointments for jurists who would reverse Roe. Of the six justices appointed by Republicans between 1973 and the retirement of Chief Justice William H. Rehnquist in 2004, only two—Antonin Scalia and Clarence Thomas—opposed Roe.

However, George W. Bush’s two appointees, John Roberts and Samuel Alito, give every indication of being true constitutionalist judges. They have voted to uphold the federal ban on partial-birth abortions, and I am hopeful that they will in due course vote to send Roe to the ash heap of history alongside moral and constitutional travesties such as Dred Scott v. Sandford and Plessy v. Ferguson. Still, at least one more pro-abortion justice must be replaced if the regime of judicially imposed abortion-on-demand is to be dismantled. At best, the vote on the Supreme Court today is 5 to 4 in the wrong direction. Obviously, no Obama nominee will support overturning Roe, and this may be the greatest tragedy of the 2008 election. But let us not forget that three of the four constitutionalists on the Court—Justices Thomas, Roberts, and Alito—are its youngest members; and the fourth, Justice Scalia, at age seventy-two is far from elderly by Supreme Court standards and he remains, thank God, physically vigorous and mentally sharp. I have no doubt that Obama will have one or two vacancies to fill in the next four years, but there is a very good chance that the seats that will be vacated are seats already held by pro-abortion justices. What is likely to happen, then, is that the status quo will hold. So let us even now look forward to the 2012 election which will almost certainly be the decisive one when it comes to the Supreme Court and the future of Roe v. Wade.

Of course, from the pro-life vantage point, success on the judicial front is only the prelude to the larger political struggle over abortion. If Roe is reversed, the result will be to return the matter to the domain of ordinary democratic deliberation for resolution by the state legislatures or the Congress. The burden will then be on the pro-life movement to win the struggle for the soul of the nation. We must, with God’s help, persuade our fellow citizens to fulfill the promise of the Declaration of Independence by bringing the unborn fully within the protection of our laws.

On this score, we have a marvelous model in the great anti-slavery crusader William Wilberforce. When he began his work against the monstrous evil of chattel slavery, the odds appeared to be long against abolition. He was attacked by partisans of the slave power as a zealot, a religious fanatic, and, most perversely, an enemy of freedom. He was, they said, imposing his religious values on others. If he didn’t like slavery, well, no one was forcing him to own slaves. He should mind his own business and stay out of other people’s affairs. Less vitriolic critics said that he was unrealistic. He was a dreamer. He was making impossible demands. Does any of this sound familiar?

Wilberforce refused to be intimidated. He would allow nothing to deter him from his mission of Christian charity to free the slaves and end the practice of slavery. He was undaunted by the ridicule often heaped upon him.

A more recent hero, Mother Teresa of Calcutta reminded us during her final visit to the United States that prayer is the most powerful weapon in the pro-life arsenal. Wilberforce would certainly agree. We must ask God’s forgiveness for our great national sin of abandoning the unborn to the crime of abortion and implore His guidance and assistance in recalling the nation to its founding ideals of liberty and justice for all. While not all pro-life citizens are in a position to be activists or exercise leadership in the social and political spheres, all are able to participate in the prayer effort, and no one’s prayers are superfluous.

In addition to prayer and our political efforts, there is the obligation to reach out to pregnant women who are in need or who are subject for other reasons to pro-abortion pressures. The partisans of abortion, with the help of an overwhelmingly sympathetic and deeply biased news media, have portrayed people who oppose the killing of the unborn, whether by abortion or in embryo-destructive research, as heartless moralizers bent on oppressing women and impeding the progress of science. Nothing could be further from the truth. For decades, pro-life people—mostly women—have devoted themselves, often at great personal cost and in the face of many obstacles, to assisting their pregnant sisters in need. They have recognized that a truly just and humane understanding is one that recognizes the common dignity and mutual interests of mother and child. Ordinary pro-life individuals and families have worked and sacrificed to provide for the material, emotional, and spiritual needs of pregnant women in need—many of whom, it must be noted, are driven to contemplate abortion under pressure from boyfriends, husbands, family, and friends. Even women who have succumbed to the temptation to destroy their unborn children are not condemned or abandoned by the pro-life movement. Rather, they are offered forgiveness, reconciliation, and healing—no strings attached. At the same time, it is pro-life Americans who are leading the charge for ethical and therapeutically useful forms of stem cell research—research that does not compromise biomedical science by killing in the cause of healing.

And those of us who are Christians must, in obedience to the command of Christ himself, love our enemies. We must pray for those who have brought the abortion license upon our nation and for those who today protect and sustain it. We must also pray for those who perform and profit from the taking of human life. Our love for them must be godly and ungrudging. We must never give up on its power to transform.

Will we achieve our goal of establishing justice for the unborn? Will abortion finally go the way of slavery? Dare we hope that the killing of the unborn can be made not only unlawful but for most people unthinkable?

Of course, it is not given to us to know just how much we will, in the end, be able to achieve. Despite the triumph of the pro-abortion party in the recent elections, there is no good reason to believe that our efforts in the domain of law and policy are futile or are doomed to fail. Yet we have no guarantee of their success. As the great Fr. Richard John Neuhaus so often said: for us, there is only the trying. The rest is God’s business, not ours. Yet we are given to know that in trying, we fulfill God’s commands, and build up His kingdom.

And we know this: our prayers, political and educational efforts, and outreach to pregnant women in need have, by God’s mercy, already saved countless precious lives. We must not lose sight of this fact in our grief at the loss of so many others due to the injustice of our laws and the coldness of so many hearts toward abortion’s tiny victims.

Reflecting on the carnage of the Civil War, Abraham Lincoln in his Second Inaugural Address concluded that “the great scourge of war” had been brought upon both North and South as punishment for the national sin of slavery. Perhaps God saw fit to let the nation survive despite that sin because of the sincere, selfless, and prayerful efforts of the enemies of slavery to end that monstrous evil.

Thanks be to God, the conflict over abortion has not produced, and will not produce, a civil war. Still, we must not forget that we are a people under judgment. We are called to account for the national sin of abortion. Like Thomas Jefferson reflecting on the evil of slavery—an evil in which he was personally complicit—we must “tremble for our country when we consider that God is just.” Like Abraham Lincoln, whom President Obama invokes but does not emulate, we must pray that God, in His mercy, will not abandon us, but will rather restore us to the true and lofty moral ideals of our founding. Even at this dark hour for our movement, let us here highly resolve to hasten the day when this nation, under God, will be truly and fully and finally dedicated to the proposition that all are created equal.

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is a member of the President’s Council on Bioethics and previously served on the United States Commission on Civil Rights. He sits on the editorial board of Public Discourse.

Copyright 2009 The Witherspoon Institute. All
rights reserved.

In its recent report on the role of conscience in medicine, the American College of Obstetricians and Gynecologists discussed whether or not physicians should be allowed to follow their consciences in refusing to perform morally contested procedures like abortion. Perhaps most controversially, the report suggested that in some cases physicians should be compelled to perform abortions. Why is this problematic?

The first thing one notices about the ACOG Committee report is that it is an exercise in moral philosophy. It proposes a definition of conscience, something that cannot be supplied by science or medicine. It then proposes to instruct its readers on “…the limits of conscientious refusals describing how claims of conscience should be weighed in the context of other values critical to the ethical provision of health care.”

Knowledge of these limits and values, as well as knowledge of what should count as the ethical provision of health care, are not and cannot possibly be the product of scientific inquiry for medicine as such. The recommendation offered by those responsible for the ACOG Committee report represents a philosophical and ethical opinion—their philosophical and ethical opinion.

The report goes on to, “outline options for public policy,” and propose, “recommendations that maximize accommodation of the individual’s religious and moral beliefs while avoiding imposition of these beliefs on others or interfering with the safe, timely, and financially feasible access to reproductive health care that all women deserve.”

Yet again notice that every concept in play in the committee’s report—the putative balancing, the judgment as to what constitutes an imposition of personal beliefs on others, the view of what constitutes health care or reproductive health care, the judgment about what is deserved—is philosophical, not scientific or, strictly speaking, medical. To the extent that they are “medical” judgments even loosely speaking, they reflect a concept of medicine informed, structured, and shaped by philosophical and ethical judgments.

Those responsible for the report purport to be speaking as physicians and medical professionals. The special authority the report is supposed to have derives from their standing and expertise as physicians and medical professionals, yet at every point that matters, the judgments offered reflect their philosophical, ethical, and political judgments, not any expertise they have by virtue of their training and experience in science and medicine.

At every key point in the report, their judgments are contestable and contested. Indeed they are contested by the very people on whose consciences they seek to impose—the people whom they would, if their report were adopted and made binding, force into line with their philosophical and ethical judgments or drive out of their fields of medical practice. And they are contested, of course, by many others. And in each of these contests a resolution one way or the other cannot be determined by scientific methods; rather the debate is philosophical, ethical, or political.

Lay aside for the moment the question of whose philosophical judgments are right and whose are wrong. My point so far is only that the report is laced with, and dependent upon at every turn, philosophical judgments. The report, in other words, in its driving assumptions, reasoning, and conclusions does not proceed from a basis of moral neutrality. It represents a partisan position among the family of possible positions debated or adopted by people of reason and goodwill in the medical profession and beyond. Indeed, for me, the partisanship of the report is its most striking feature.

Its greatest irony is the report’s concern for physicians’ allegedly imposing their beliefs on patients by, for example, declining to perform or refer for abortions—or at least declining to perform abortions or provide other services in emergency situations and certainly to refer for these procedures.

The truth is that the physician or the pharmacist who declines to dispense coerces no one. He or she, that physician or pharmacist, simply refuses to participate in the destruction of human life—the life of the child in utero.

By contrast, those responsible for the report and its recommendations evidently would use coercion to force physicians and pharmacists who have the temerity to dissent from their philosophical and ethical views either to get in line or go out of business.

If their advice were followed, if they had their way, their fields of medical practice would be cleansed of pro-life physicians whose convictions required them to refrain from performing or referring for abortions. The entire field would be composed of people who could be relied on either to agree with, or at a minimum go along with, the moral and political convictions of the report’s authors. So, in truth, who in this debate is guilty of intolerance? Who is favoring coercion? Who is imposing their values?

While I am on the pro-life side of the abortion question, one need not share my view to see that it is those responsible for this report who are the ones seeking to impose their views and values on others.

Whether an elective abortion or an in vitro procedure or what have you counts as health care as opposed to a decision about what one desires or what lifestyle choices one wishes to make cannot be established or resolved by the methods of science or by any morally or ethically neutral form of inquiry or reasoning. One’s view of the matter will reflect one’s moral and ethical convictions either way. So the report’s constant use of the language of “health” and “reproductive health” in describing or referring to the key issues giving rise to conflicts of conscience is at best—at best—question begging.

There is one final irony in all of this. In defending its proposal to compel physicians in the relevant fields to at least refer for procedures that physicians may believe are immoral, unjust, and even homicidal, the report said that such referrals “need not be conceptualized as a repudiation or compromise of one’s own values, but instead can be seen as an acknowledgement of both the widespread and thoughtful disagreement among physicians and society at large and the moral sincerity of others with whom one disagrees.”

So suddenly it’s the case that the underlying issues at stake, such as abortion, are matters of widespread and thoughtful disagreement, and I myself agree with that. And it becomes clear from the report that we should show respect for the moral sincerity of those with whom we disagree. But it seems to me that it follows from these counsels that thoughtful and sincere people need not agree that abortion, for example, is morally innocent or acceptable or that there is a “right” to abortion or that the provisions of abortion is part of good health care or is health care at all, at least in the case of elective abortions.

But then what could possibly justify the exercise of coercion to compel thoughtful, morally sincere physicians who believe that abortion is a homicidal injustice either to perform the procedure or make a referral for it, or else leave the practice of medicine? The report’s “my way or the highway” attitude is anything but an acknowledgement of the widespread and thoughtful disagreement among physicians and society at large and the moral sincerity of those with whom one disagrees. Indeed, it is a repudiation of it.

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He serves on the President’s Council on Bioethics and on UNESCO’s World Commission on the Ethics of Scientific Knowledge and Technology (COMEST). George is a Senior Fellow of the Witherspoon Institute of Princeton, New Jersey and sits on the editorial board of Public Discourse.

Copyright 2008 the Witherspoon Institute. All rights reserved.

“There was a bill that was put forward before the Illinois Senate that said you have to provide lifesaving treatment and that would have helped to undermine Roe v. Wade. The fact is that there was already a law on the books in Illinois that required providing lifesaving treatment, which is why not only myself but pro-choice Republicans and Democrats voted against it.”

But the facts of the born-alive debate tell a different story.

A few years ago, after it became clear that some infants who were born alive in the course of an attempted induced abortion at Christ Hospital in Chicago and elsewhere were being left to die without even comfort care, Republicans and Democrats around the country united in an effort to make the practice illegal and declare that any child outside the womb, even if she was an abortion survivor whose prospects for long-term survival might be in doubt, was entitled to basic medical care. Even the most ardent advocates of the pro-choice position agreed that a child born alive, even after an attempted abortion, deserves humane treatment.

The tragic stories of infants being left to die moved legislators to act at both the state and federal levels. In Washington, D.C., consensus can be a rare commodity, and never more so than on the issue of abortion. But the Born-Alive Infant Protection Act of 2002 was just such a rarity. The bill passed both houses of Congress without a single dissenting vote-it was 98-0 in the Senate-and numerous states then proceeded to enact similar measures. In Illinois, however, a series of efforts to pass “Born-Alive” legislation from 2001 to 2003 met with stiff resistance from legislators concerned the measure would constrain the right to abortion in the state. Prominent among these opponents, and the only one to actually speak in opposition to the bill when it was debated in 2002, was state Senator Barack Obama.

Obama’s case against the bill did not revolve around existing state law, as he seemed to suggest last night. The law Obama referred to in the debate was the Illinois abortion statute enacted in 1975. But at the time of the debate about the Born Alive Act, the Illinois Attorney General had publicly stated that he could not prosecute incidents such as those reported by nurses at Christ Hospital in Chicago and elsewhere (including a baby left to die in a soiled linen closet) because the 1975 law was inadequate. It only protected “viable” infants-and left the determination of viability up to the “medical judgment” of the abortionist who had just failed to kill the baby in the womb. This provision of the law weakened the hand of prosecutors to the vanishing point. That is why the Born Alive Act was necessary-and everybody knew it. Moreover, the Born Alive Act would have had the effect of at least ensuring comfort care to babies whose prospects for long-term survival were dim and who might therefore have been regarded as “nonviable.” As Obama and the other legislators knew, without the Born Alive Act these babies could continue to be treated as hospital refuse. That’s how the dying baby that Nurse Jill Stanek found in the soiled linen closet got there.

Obama, who in 2003 became the chairman of the state senate’s Health and Human Services Committee, argued not that existing law did everything the newly proposed measure would do, but that the born-alive bill would put too much of a burden on the practice of abortion.

“As I understand it,” Obama said during the floor debate, “this puts the burden on the attending physician who has determined, since they were performing this procedure, that, in fact, this is a nonviable fetus; that if that fetus, or childhowever way you want to describe it—is now outside the mother’s womb and the doctor continues to think that it’s nonviable but there’s, let’s say, movement or some indication that, in fact, they’re not just coming out limp and dead, that, in fact, they would then have to call a second physician to monitor and check off and make sure that this is not a live child that could be saved.” This, he argued, was too much to ask of a doctor performing abortions, and it could also, as he put it, “burden the original decision of the woman and the physician to induce labor and perform an abortion.”

To address the concern of Obama and others who believed in a sweeping right to abortion, Illinois legislators in 2003 amended the bill in Obama’s committee, inserting language clarifying that the bill would in no way affect the legal status of a human being before birth. It applied only to a child born alive. Identical “neutrality” language in the federal version of the bill had persuaded every single pro-choice legislator in Congress to support the measure. But Obama opposed the bill anyway, and his fellow Democrats followed their chairman’s lead, killing the legislation in committee.

When Obama was challenged to explain himself, earlier in this campaign, he at first insisted that he opposed the Born-Alive Act in Illinois because it didn’t have a neutrality clause. When critics contended that this claim was false, Obama accused them of “lying.” But then the critics produced indisputable documentary evidence that in fact Obama had voted against a bill that did include the neutrality clause. Obama had plainly misrepresented his record. Now he really had some explaining to do.

But Obama still did not tell the truth last night. As his original 2002 statements make clear, he sought to defeat the Born-Alive Act because he recognized that it bears at least implicitly on the larger question of abortion in America. He seemed to realize that the logical implication of protecting the child born alive after an attempted abortion is that abortion involves taking the life of a child in the womb, and that acknowledging that, even at the extreme margins of the practice of abortion, could put the legitimacy of abortion itself in question. Therefore, Obama chose to defend the widest possible scope for legal abortion by building a fence around it, even if that meant permitting a child who survives an abortion to be left to die without even being afforded basic comfort care.

Some of Senator Obama’s supporters are now making one last, rather desperate-sounding attempt to defend his votes against protecting infants born alive after unsuccessful abortions. Their argument goes this way: Permitting children who survive attempted abortions to be abandoned is so heinous, so barbaric, that for someone to accuse Senator Obama, a decent man who is himself the father of two daughters, of supporting what amounts to legalized infanticide is too outrageous to merit an answer. There is a problem, though. In light of the documentary evidence that is now before the public, it is clear that the accusation against Senator Obama, however shocking, has the very considerable merit of being true.

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is a member of the President’s Council on Bioethics and previously served on the United States Commission on Civil Rights. He sits on the editorial board of Public Discourse.

Yuval Levin is a Fellow and Director of the Program on Bioethics and American Democracy of the Ethics and Public Policy Center and senior editor of The New Atlantis.

Copyright 2008 The Witherspoon Institute. All rights reserved.

Yet there are Catholics and Evangelicals-even self-identified pro-life Catholics and Evangelicals—who aggressively promote Obama’s candidacy and even declare him the preferred candidate from the pro-life point of view.

What is going on here?

I have examined the arguments advanced by Obama’s self-identified pro-life supporters, and they are spectacularly weak. It is nearly unfathomable to me that those advancing them can honestly believe what they are saying. But before proving my claims about Obama’s abortion extremism, let me explain why I have described Obama as “pro-abortion” rather than “pro-choice.”

According to the standard argument for the distinction between these labels, nobody is pro-abortion. Everybody would prefer a world without abortions. After all, what woman would deliberately get pregnant just to have an abortion? But given the world as it is, sometimes women find themselves with unplanned pregnancies at times in their lives when having a baby would present significant problems for them. So even if abortion is not medically required, it should be permitted, made as widely available as possible and, when necessary, paid for with taxpayers’ money.

The defect in this argument can easily be brought into focus if we shift to the moral question that vexed an earlier generation of Americans: slavery. Many people at the time of the American founding would have preferred a world without slavery but nonetheless opposed abolition. Such people—Thomas Jefferson was one—reasoned that, given the world as it was, with slavery woven into the fabric of society just as it had often been throughout history, the economic consequences of abolition for society as a whole and for owners of plantations and other businesses that relied on slave labor would be dire. Many people who argued in this way were not monsters but honest and sincere, albeit profoundly mistaken. Some (though not Jefferson) showed their personal opposition to slavery by declining to own slaves themselves or freeing slaves whom they had purchased or inherited. They certainly didn’t think anyone should be forced to own slaves. Still, they maintained that slavery should remain a legally permitted option and be given constitutional protection.

Would we describe such people, not as pro-slavery, but as “pro-choice”? Of course we would not. It wouldn’t matter to us that they were “personally opposed” to slavery, or that they wished that slavery were “unnecessary,” or that they wouldn’t dream of forcing anyone to own slaves. We would hoot at the faux sophistication of a placard that said “Against slavery? Don’t own one.” We would observe that the fundamental divide is between people who believe that law and public power should permit slavery, and those who think that owning slaves is an unjust choice that should be prohibited.

Just for the sake of argument, though, let us assume that there could be a morally meaningful distinction between being “pro-abortion” and being “pro-choice.” Who would qualify for the latter description? Barack Obama certainly would not. For, unlike his running mate Joe Biden, Obama does not think that abortion is a purely private choice that public authority should refrain from getting involved in. Now, Senator Biden is hardly pro-life. He believes that the killing of the unborn should be legally permitted and relatively unencumbered. But unlike Obama, at least Biden has sometimes opposed using taxpayer dollars to fund abortion, thereby leaving Americans free to choose not to implicate themselves in it. If we stretch things to create a meaningful category called “pro-choice,” then Biden might be a plausible candidate for the label; at least on occasions when he respects your choice or mine not to facilitate deliberate feticide.

The same cannot be said for Barack Obama. For starters, he supports legislation that would repeal the Hyde Amendment, which protects pro-life citizens from having to pay for abortions that are not necessary to save the life of the mother and are not the result of rape or incest. The abortion industry laments that this longstanding federal law, according to the pro-abortion group NARAL, “forces about half the women who would otherwise have abortions to carry unintended pregnancies to term and bear children against their wishes instead.” In other words, a whole lot of people who are alive today would have been exterminated in utero were it not for the Hyde Amendment. Obama has promised to reverse the situation so that abortions that the industry complains are not happening (because the federal government is not subsidizing them) would happen. That is why people who profit from abortion love Obama even more than they do his running mate.

But this barely scratches the surface of Obama’s extremism. He has promised that “the first thing I’d do as President is sign the Freedom of Choice Act” (known as FOCA). This proposed legislation would create a federally guaranteed “fundamental right” to abortion through all nine months of pregnancy, including, as Cardinal Justin Rigali of Philadelphia has noted in a statement condemning the proposed Act, “a right to abort a fully developed child in the final weeks for undefined ‘health’ reasons.” In essence, FOCA would abolish virtually every existing state and federal limitation on abortion, including parental consent and notification laws for minors, state and federal funding restrictions on abortion, and conscience protections for pro-life citizens working in the health-care industry-protections against being forced to participate in the practice of abortion or else lose their jobs. The pro-abortion National Organization for Women has proclaimed with approval that FOCA would “sweep away hundreds of anti-abortion laws [and] policies.”

It gets worse. Obama, unlike even many “pro-choice” legislators, opposed the ban on partial-birth abortions when he served in the Illinois legislature and condemned the Supreme Court decision that upheld legislation banning this heinous practice. He has referred to a baby conceived inadvertently by a young woman as a “punishment” that she should not endure. He has stated that women’s equality requires access to abortion on demand. Appallingly, he wishes to strip federal funding from pro-life crisis pregnancy centers that provide alternatives to abortion for pregnant women in need. There is certainly nothing “pro-choice” about that.

But it gets even worse. Senator Obama, despite the urging of pro-life members of his own party, has not endorsed or offered support for the Pregnant Women Support Act, the signature bill of Democrats for Life, meant to reduce abortions by providing assistance for women facing crisis pregnancies. In fact, Obama has opposed key provisions of the Act, including providing coverage of unborn children in the State Children’s Health Insurance Program (S-CHIP), and informed consent for women about the effects of abortion and the gestational age of their child. This legislation would not make a single abortion illegal. It simply seeks to make it easier for pregnant women to make the choice not to abort their babies. Here is a concrete test of whether Obama is “pro-choice” rather than pro-abortion. He flunked. Even Senator Edward Kennedy voted to include coverage of unborn children in S-CHIP. But Barack Obama stood resolutely with the most stalwart abortion advocates in opposing it.

It gets worse yet. In an act of breathtaking injustice which the Obama campaign lied about until critics produced documentary proof of what he had done, as an Illinois state senator Obama opposed legislation to protect children who are born alive, either as a result of an abortionist’s unsuccessful effort to kill them in the womb, or by the deliberate delivery of the baby prior to viability. This legislation would not have banned any abortions. Indeed, it included a specific provision ensuring that it did not affect abortion laws. (This is one of the points Obama and his campaign lied about until they were caught.) The federal version of the bill passed unanimously in the United States Senate, winning the support of such ardent advocates of legal abortion as John Kerry and Barbara Boxer. But Barack Obama opposed it and worked to defeat it. For him, a child marked for abortion gets no protection-even ordinary medical or comfort care-even if she is born alive and entirely separated from her mother. So Obama has favored protecting what is literally a form of infanticide.

You may be thinking, it can’t get worse than that. But it does.

For several years, Americans have been debating the use for biomedical research of embryos produced by in vitro fertilization (originally for reproductive purposes) but now left in a frozen condition in cryopreservation units. President Bush has restricted the use of federal funds for stem-cell research of the type that makes use of these embryos and destroys them in the process. I support the President’s restriction, but some legislators with excellent pro-life records, including John McCain, argue that the use of federal money should be permitted where the embryos are going to be discarded or die anyway as the result of the parents’ decision. Senator Obama, too, wants to lift the restriction.

But Obama would not stop there. He has co-sponsored a bill-strongly opposed by McCain-that would authorize the large-scale industrial production of human embryos for use in biomedical research in which they would be killed. In fact, the bill Obama co-sponsored would effectively require the killing of human beings in the embryonic stage that were produced by cloning. It would make it a federal crime for a woman to save an embryo by agreeing to have the tiny developing human being implanted in her womb so that he or she could be brought to term. This “clone and kill” bill would, if enacted, bring something to America that has heretofore existed only in China-the equivalent of legally mandated abortion. In an audacious act of deceit, Obama and his co-sponsors misleadingly call this an anti-cloning bill. But it is nothing of the kind. What it bans is not cloning, but allowing the embryonic children produced by cloning to survive.

Can it get still worse? Yes.

Decent people of every persuasion hold out the increasingly realistic hope of resolving the moral issue surrounding embryonic stem-cell research by developing methods to produce the exact equivalent of embryonic stem cells without using (or producing) embryos. But when a bill was introduced in the United States Senate to put a modest amount of federal money into research to develop these methods, Barack Obama was one of the few senators who opposed it. From any rational vantage point, this is unconscionable. Why would someone not wish to find a method of producing the pluripotent cells scientists want that all Americans could enthusiastically endorse? Why create and kill human embryos when there are alternatives that do not require the taking of nascent human lives? It is as if Obama is opposed to stem-cell research unless it involves killing human embryos.

This ultimate manifestation of Obama’s extremism brings us back to the puzzle of his pro-life Catholic and Evangelical apologists.

They typically do not deny the facts I have reported. They could not; each one is a matter of public record. But despite Obama’s injustices against the most vulnerable human beings, and despite the extraordinary support he receives from the industry that profits from killing the unborn (which should be a good indicator of where he stands), some Obama supporters insist that he is the better candidate from the pro-life point of view.

They say that his economic and social policies would so diminish the demand for abortion that the overall number would actually go down-despite the federal subsidizing of abortion and the elimination of hundreds of pro-life laws. The way to save lots of unborn babies, they say, is to vote for the pro-abortion-oops! “pro-choice”-candidate. They tell us not to worry that Obama opposes the Hyde Amendment, the Mexico City Policy (against funding abortion abroad), parental consent and notification laws, conscience protections, and the funding of alternatives to embryo-destructive research. They ask us to look past his support for Roe v. Wade, the Freedom of Choice Act, partial-birth abortion, and human cloning and embryo-killing. An Obama presidency, they insist, means less killing of the unborn.

This is delusional.

We know that the federal and state pro-life laws and policies that Obama has promised to sweep away (and that John McCain would protect) save thousands of lives every year. Studies conducted by Professor Michael New and other social scientists have removed any doubt. Often enough, the abortion lobby itself confirms the truth of what these scholars have determined. Tom McClusky has observed that Planned Parenthood’s own statistics show that in each of the seven states that have FOCA-type legislation on the books, “abortion rates have increased while the national rate has decreased.” In Maryland, where a bill similar to the one favored by Obama was enacted in 1991, he notes that “abortion rates have increased by 8 percent while the overall national abortion rate decreased by 9 percent.” No one is really surprised. After all, the message clearly conveyed by policies such as those Obama favors is that abortion is a legitimate solution to the problem of unwanted pregnancies—so clearly legitimate that taxpayers should be forced to pay for it.

But for a moment let’s suppose, against all the evidence, that Obama’s proposals would reduce the number of abortions, even while subsidizing the killing with taxpayer dollars. Even so, many more unborn human beings would likely be killed under Obama than under McCain. A Congress controlled by strong Democratic majorities under Harry Reid and Nancy Pelosi would enact the bill authorizing the mass industrial production of human embryos by cloning for research in which they are killed. As president, Obama would sign it. The number of tiny humans created and killed under this legislation (assuming that an efficient human cloning technique is soon perfected) could dwarf the number of lives saved as a result of the reduced demand for abortion-even if we take a delusionally optimistic view of what that number would be.

Barack Obama and John McCain differ on many important issues about which reasonable people of goodwill, including pro-life Americans of every faith, disagree: how best to fight international terrorism, how to restore economic growth and prosperity, how to distribute the tax burden and reduce poverty, etc.

But on abortion and the industrial creation of embryos for destructive research, there is a profound difference of moral principle, not just prudence. These questions reveal the character and judgment of each man. Barack Obama is deeply committed to the belief that members of an entire class of human beings have no rights that others must respect. Across the spectrum of pro-life concerns for the unborn, he would deny these small and vulnerable members of the human family the basic protection of the laws. Over the next four to eight years, as many as five or even six U.S. Supreme Court justices could retire. Obama enthusiastically supports Roe v. Wade and would appoint judges who would protect that morally and constitutionally disastrous decision and even expand its scope. Indeed, in an interview in Glamour magazine, he made it clear that he would apply a litmus test for Supreme Court nominations: jurists who do not support Roe will not be considered for appointment by Obama. John McCain, by contrast, opposes Roe and would appoint judges likely to overturn it. This would not make abortion illegal, but it would return the issue to the forums of democratic deliberation, where pro-life Americans could engage in a fair debate to persuade fellow citizens that killing the unborn is no way to address the problems of pregnant women in need.

What kind of America do we want our beloved nation to be? Barack Obama’s America is one in which being human just isn’t enough to warrant care and protection. It is an America where the unborn may legitimately be killed without legal restriction, even by the grisly practice of partial-birth abortion. It is an America where a baby who survives abortion is not even entitled to comfort care as she dies on a stainless steel table or in a soiled linen bin. It is a nation in which some members of the human family are regarded as inferior and others superior in fundamental dignity and rights. In Obama’s America, public policy would make a mockery of the great constitutional principle of the equal protection of the law. In perhaps the most telling comment made by any candidate in either party in this election year, Senator Obama, when asked by Rick Warren when a baby gets human rights, replied: “that question is above my pay grade.” It was a profoundly disingenuous answer: For even at a state senator’s pay grade, Obama presumed to answer that question with blind certainty. His unspoken answer then, as now, is chilling: human beings have no rights until infancy—and if they are unwanted survivors of attempted abortions, not even then.

In the end, the efforts of Obama’s apologists to depict their man as the true pro-life candidate that Catholics and Evangelicals may and even should vote for, doesn’t even amount to a nice try. Voting for the most extreme pro-abortion political candidate in American history is not the way to save unborn babies.

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is a member of the President’s Council on Bioethics and previously served on the United States Commission on Civil Rights. He sits on the editorial board of Public Discourse.

Copyright 2008 The Witherspoon Institute. All rights reserved.