Philosophy and Name-calling

No serious philosopher would deny, in so many words, that to demonize opponents is to betray the vocation of philosophy. Yet some academic philosophers are so bound to the cause of redefining civil marriage that they would marginalize dissenters with epithets and analyze them as specimens of psychological pathology. Chappell, though he goes on to ask serious questions, is at pains to deny that he deems our argument worth engaging. For him, it is, like misogyny, merely unreasonable, subrational, and bigoted. Linking to Chappell’s critique, Brian Leiter repeats the charge and presumes to diagnose us.

The fervent policing of this newfound academic consensus, with its chilling effect on discourse, might be defensible if proponents of the conjugal view were, like Nazis or cannibals, advocates of ideas and policies repugnant to deep, enduring principles of our civilization. Yet even within the small, unrepresentative society that is academic philosophy, the very idea of same-sex marriage would have seemed mostly baffling (perhaps even patriarchally motivated) less than a generation ago. One might see the striking subsequent development as an epiphany of timeless moral principle denied the human race (including the sexual-traditionalist Mahatma Gandhi and other partisans of cruel and complacent class ideologies) these several millennia; or one might judge the cause of redefining civil marriage to be a fashionable application of a perfectly disputable view of sex and human goods that has grown to dominate in the academy from its proximate roots in the ’50s and ’60s, in Sanger and Hefner, Kinsey and Reich.

I happen to think the latter a more reasonable interpretation. Human nature being what it is, there is a light burden of proof on anyone alleging insularity, and I happily accept that advantage; but it’s still worth exploring why anyone in the academy would bear the social and professional risks of a contrarian stance.

Clearly “homophobia” is not the only possible motivation for the conjugal thesis. According to that thesis, we can’t properly understand marriage apart from the procreative sort of bodily communion of spouses achieved in coitus. Some claim this is a gerrymandered definition built to exclude homosexually oriented people, but one might as well claim that Attic Greek grammar was designed to frustrate Victorian schoolboys. Before the 19^th century, as far as we can tell, the very category of the “homosexual” had at best a sketchy existence. Homosexual acts were known and (for centuries in the West) widely condemned, along with analogous acts between a man and a woman, but there is little evidence that a category of people marked by exclusive and enduring homosexual orientation was recognized consistently or sharply enough to stir up group animus. To a man like Samuel Johnson, for example, though sodomy was immoral, “homosexuals” as an object of group hatred did not exist as “Frenchmen” or “Whigs” did, but at best as “drunkards” did, and yet the fundamentals of our marriage law, including the norm that a marriage could be consummated by no act other than coitus (when all the live but rejected alternatives were acts between a wedded man and woman), long predate Dr. Johnson. If this norm did not express belief in a deep link between marriage and the procreative sort of bodily union achieved in coitus, how can we explain it?

Nor can the conjugal view be “blamed” on religion, Brian Leiter’s preferred basis for dismissal and diagnosis. There is a 2,400-year-old philosophical tradition, originating independently of Judaeo-Christian influence, that distinguished the uniquely comprehensive and procreative sort of union consummated by coitus from all others, and affirmed its distinct personal and social value. This is the view to which Plato, Aristotle, Xenophanes, Musonius Rufus, and Plutarch adhere. Especially clear is Plutarch’s statement in Erotikos that marriage is a special kind of friendship uniquely embodied (“renewed”) in coitus (and not other climactic acts, which Plutarch regarded as intrinsically shameful).           

These points are not meant as an argument from history and authority. They are meant to clear ground recently grown thick with sharp, venomous moralism, so that intelligent debate can thrive—including in academic philosophy, to which, after seven years of undergraduate and graduate study, I owe my intellectual formation.

The Argument

Before replying to Chappell’s critique, it is worth orienting the reader with a précis of my positive claims.

A marriage, like any other voluntary personal union (broadly, like any friendship), exists when persons commit to activity toward common ends, and is fostered by such activity. The particular union created by commitment to marriage, however, is uniquely comprehensive in (a) how it unites persons, (b) what it unites them with respect to, and (c) what kind of commitment it demands.

(a) Marriage unites persons both volitionally and bodily. (b) Spouses unite bodily only by coitus, which is ordered to bringing new human life into the world. New life, in a sense, is one human good among others, but in another sense, it transcends and includes other human goods. Thus, unlike other forms of community (e.g., universities or sports teams), marriage is ordered to realizing not just this or that human value (e.g., knowledge or play), but new loci of value—persons—and thus also the broad domestic sharing uniquely apt for their development. (c) Marriage inherently calls for permanence and exclusivity.

To expand on (a), the bodily union of two people is like the bodily union of organs in an individual. Just as one’s heart, lungs, and other organs form a unity by coordinating for a biological good of the whole (i.e., the organism’s life), so a man’s and woman’s bodies form a unity by mutual coordination (coitus) for a biological good (reproduction) of their union as a whole.

As for (b), there is a deep connection between this, the marital (conjugal) act and the core of a distinctively marital common life, also shaped by an orientation toward procreation, onto which cultures and couples graft other practices according to circumstance and taste: Having committed to sharing in the generative acts that unite them bodily, spouses cooperate in other areas of life (intellectual, recreational, etc.) in the domestic sharing uniquely apt for fostering children’s overall development. And of course they cooperate in the tasks of parenting where children do come. Ordinary friendships, however, the unions of hearts and minds embodied in conversations and various joint pursuits, can have more limited and variable scope.

Finally, (c): In view of its comprehensiveness and its orientation to children’s needs, only marriage inherently requires of its would-be participants pledged permanence and exclusivity; thus is marriage, again like the unions of organs into one healthy whole, properly total and lasting for the life of the parts. (Indeed, comprehensive union can be achieved only by two because no single act can organically unite three or more people bodily.) Thus, again, is marriage uniquely apt for the procreation and education of offspring, an inherently open-ended task calling for unconditioned commitment. However, friendships as such require no promise of permanence and are often enhanced, not betrayed, by openness to new members; hence, abandon the conjugal view for a view of marriage as romantic coupling, and you forfeit the basis of all of these other distinctively marital norms.

Now there are many points worth making in response to Chappell, but so as not to overwhelm the reader or lose a sense of relative importance, I will address just three major failures of his argument. First, he does not show that our definition of marriage is arbitrarily restrictive, which fairly clears us of the charge of injustice. Second, he does not show how his own preferred view is any less arbitrary than he considers ours to be. Third, his response to our (rather peripheral and painfully cautious) references to social science is willful and irrelevant. I will demonstrate each failure in turn.

Chappell’s Failure on Conjugal Union

Chappell seems to recognize that much in this debate hinges on whether there could be basic moral significance to coitus chosen as an embodiment of the uniquely comprehensive and, relatedly, procreative sort of union sketched above. Yet Chappell handles this issue with the timeless tactic of simply begging the central question.

We maintain that coitus, as the only human biological functioning chosen and performed in partnership, can unite bodies and therefore persons, in a real and important sense. (Bodies are aspects of us as persons, not just our costumes or vehicles; so in human beings, bodily union can be a real part of a personal union when integrated with a commitment.) So coitus alone can be the distinctive element in the mind-body union, oriented to the full sharing of family life, that we call marriage. Manifestly, two people of the same sex can’t unite this way (any more than three or more can), so they cannot together form a marriage. On Chappell’s view, however, the bodily union of coitus chosen as the completion of such multi-level union has no intrinsic worth, and he dismisses our contrary view as “biological fetishism.”

Is it “biological fetishism” for millions of spouses to find it beautiful and uniquely appropriate that their children are a mixture of their bodies? Or for couples to see their infertility as a tragic limitation even when they can adopt? Or for proud new parents to care which healthy child is handed to them in the maternity ward?

I see Chappell’s “biological fetishism” and raise him “Manichean dualism”; for dualism is what his breezy dismissal of the value of bodily union betrays. I can also point him to book-length arguments in defense of our view that the body is an intrinsic aspect, not an extrinsic instrument, of the human person. Here I can cite other moral conclusions that lend support to this view: What is peculiarly perverse about torture? That it uses one aspect of the person (his body and affects) against another aspect of his self (wishes, choices, commitments). Why is rape gravely wicked even when performed on someone in a coma who never finds out and sustains no physical or psychic injuries? It still involves misusing—abusing—a person, and not merely using and replacing intact his or her property. Why can you licitly relinquish all future rights over your possessions, but not over your body or its capacities for labor? Again, because your body is part of you, not just your property.

A positive implication of this fact is what Chappell denies: that bodily union is integral to comprehensive personal union. What Chappell is pleased to call fetishizing biological functions is our insistence that, in embodied animals, comprehensive union must include bodily union, which must mean joint biological functioning (chosen to embody the spouses’ commitment). There is no other candidate for this than coitus, so the requirement that a comprehensive union—i.e., marriage—be capable of coital consummation is hardly arbitrary. Chappell merely states the opposite and so proves nothing, and the position he so signally fails to justify would render the concepts of a distinctively marital act or form of common life senseless or superstitious.

As for the commenters on his critique, several have carelessly read us (if they indeed have read our paper) as arguing for the immorality of certain conduct based on an organ’s proper functioning; but our article draws no conclusions about the permissibility of non-coital sexual acts, and as it happens, we all reject ‘perverted faculty’ arguments as fallacious. (Perhaps the philosophically minded lose their usual diligence when blasting “bigotry.” Thus, my favorite of the comments on Chappell’s critique: “Thanks for posting this. I haven’t had time to read the paper yet, but it looks like you’ve gotten to the heart of the problem.”)

Chappell’s Failure on an Alternative Conception of Marriage

Chappell also provides an alternative conception of marriage so vague that it forces this dismal choice on all who share his view: Either (i) marriage should be so open and flexible as to be unrecognizable and repugnant to the intuitions and settled beliefs of even most revisionists; or (ii) marriage law must be seen not as a matter of strict moral principle but as one contestable prudence, which deflates the arguments and obliterates the rhetoric of the movement to redefine civil marriage.

Imagine, for a minute, that there were no advocates of a coherent view of sexual complementarity in marriage, a view that has the support of the whole religious, legal, and cultural history of our species. We would still face the fact that marriage, if it is going to have meaningful public existence, must have some definition and some shaping norms. Such parameters risk excluding relationships that don’t meet the definition and stigmatizing people who reject (or for whatever reason don’t honor) the norms, so we had better have extremely good reasons for making them thus and not otherwise. So what does Chappell say? What is marriage?

He is not sure. In some sense, it is a comprehensive union of two persons, your number one relationship, so to speak, but it cannot really be limited, even by something as minimal as sexual exclusivity. He admits that on his view, sexual exclusivity must be a “contingent pragmatic/instrumental consideration (given the possible risk of sexual dalliances distracting or even drawing one away from one’s prior relationship), rather than anything essential to good marriages as such.” So a man who finds out that his wife regularly goes to the movies with another man, and who worries that she might start sleeping with him, has it backwards: He should worry that she’s sleeping with another man only if it means she might start going to the movies with him, and then buying ties for him, and then sampling specialty cheeses with him, and on and on, until the sickening crescendo—when he comes home early from work and finds them in the throes of chess on the marital kitchen table.

Even Chappell’s implausibly thin view is thicker than it has any right to be. For example, he seems to think marriage properly has some sexual component; but why, if sex is valuable only for its affective and expressive effects (which other activities can in principle provide) and not for uniquely making possible comprehensive union? Indeed, why should marriage be between two people? Why not share all your major life experiences and perhaps (but perhaps not) sexual activity with, say, three cohabiting (but why cohabiting?) lovers? Newsweek reports that the United States already has 500,000 polyamorous households. What possible objection could Chappell have to recognizing their relationships?

The problem is simple. Whatever he may say (and, I am sure, believe) about comprehensiveness and so on, Chappell, like most revisionists, can only conceive of marriage impressionistically, as some region to the far right of a spectrum of affective relations. This of course makes it hard to see why the state should care about marriage at all—any more than about baptisms, bar mitzvahs, or ordinary friendships. Exclusive coital relationships at least have a clear and intrinsic connection to children, but why should the state recognize tender relationships qua tender relationships? More devastatingly, this leaves Chappell no ground of principle—none whatsoever—for not including as marriages every relationship type describable in polite English: expressly temporary, multiple-partner, open, or even non-romantic relationships (e.g., between two loving sisters).

Nor is it simply the case that failing to recognize them would be awkward and faintly amusing, like the fact that you can go to war and die for the state before you can purchase alcohol. No, if revisionists are right to say that (a) marriage recognition, or at least equal treatment with respect to marriage recognition, is a basic human right and (b) arbitrariness about it is a grave injustice, then failure to recognize such unions on demand is a grave injustice, for which we shall have to answer to History, that dreaded deity (a liberal Democrat, it turns out) so often invoked against my coauthors and me.

As it happens the more consistent, or candid, revisionists have publicly reached conclusions that harmonize with mine. Five years ago, hundreds of scholars and activists—including Princeton’s Cornel West, Chicago’s Martha Nussbaum, and NYU’s Judith Stacey and Kenji Yoshino—argued that the state should equally recognize polyamorous and multiple-household sexual relationships, as well as a variety of non-sexual ones. These activists and I may well agree that abolishing the criterion of sexual complementarity would indeed ‘weaken’ marriage as the conjugal view’s supporters mean this: that it would leave no basis in principle for privileging (and so may well further erode in practice—cf. Andrew Cherlin’s The Marriage-Go-Round) its distinguishing norms. We only disagree on whether that would be bad, or in fact very good.

At this point in the debate conservative revisionists, alarmed by the prospect that has opened up before them, don the hat of the Pragmatic Man—and with it don his bluster, and his myopia. To his credit, Chappell himself doesn’t, but the move is so common that I should anticipate it. “What,” ask Pragmatic Men, “is all this talk of essences, definitions, and abstract rights and logical entailments? Like all social reality, marriage is a construct. What we owe people on equal terms is marriage as we understand it now. (The state should get involved in the first place because people would be very unhappy and perhaps generally more antisocial, if the state didn’t.) Now marriage, here and now, in the real world, means a sexually exclusive romance between two adults who more or less put each other first in life and have kids, or a dachshund, if they’re so inclined. That contingent notion includes same-sex romantic couples and excludes Laverne and Shirley. It’s as simple as that.”

This may at first sound very realistic and mature, but it is no help at all. First, its rejection of a deeper standard fails even to explain (if only then to reject) important legal and philosophical traditions. Again, these distinguished the class of comprehensive unions consummated by coitus, even when some such unions had no obvious social utility (e.g., the foreseeably and certainly infertile ones), and animus couldn’t have influenced the classifications. Second, the pragmatic aversion to objective standards is usually conveniently selective: many revisionists would accept that friendship, say, is (a) a fundamental human good, (b) distinct in principle from others (e.g., aesthetic experience), which (c) admits of cultural variation even as it (d) retains an objective core in the focal case: mutual and mutually acknowledged willing of the other’s good for the other’s sake. The status of marriage on the conjugal view is analogous in all four respects. If friendship, so understood, isn’t hopelessly mysterious, neither is marriage.

Third, even if there were no such bond objectively distinguishable in shape and value from the run of ordinary friendships, the pragmatic appeal to our current understandings would fail. In every one of the 31 states—including liberal ones like California, Wisconsin, and Maine—where the people have been allowed to vote, a solid majority has shown that their notion of marriage happens to include “intrinsically opposite-sex.” If there are no principled boundaries demarcating some intimate associations as marriages, then these majorities violate no principle in excluding same-sex partnerships. The merest (or, if sense can be made of such aggregations, a net) social benefit would suffice to justify traditional marriage law. Pro-gay-relationship liberals like David Blankenhorn have suggested such a basis for making sexual complementarity a condition for marriage. Have any compellingly argued the same of monogamy or exclusivity?

The real social fact of the matter seems to be that two rival models of marriage are currently in an open war (of doubtful issue). One model is the “romantic coupling” notion sketched by the pragmatists, and the other is the comprehensive procreation-oriented union for which we argue. The main prize in this war is, of course, the legal definition of marriage, which will give enormous social influence to one view or another. Pragmatic revisionists therefore simply ask their opponents to surrender on the grounds that they have already lost. If you find this kind of argument persuasive, I have some lovely Idaho oceanfront you might be interested in buying.

Chappell’s Failure on the Use of Social Science

Finally, Chappell objects to our citation of social science data to support privileging opposite-sex unions with respect to parenting. 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. So far, however, as my coauthors and I elsewhere affirm and nowhere deny, none of the studies comparing children reared by same-sex couples in sexual partnerships 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 Chappell treats the issue as if it had been settled. He endorses the idea that it doesn’t matter, even as a rule, whether children are reared by a parent of each sex: “I think it’s important (as a rule) that children be raised in a stable and loving environment. I do not think that the genitalia of the parents matters.”

I would not be so polemical as to suggest that nobody in his five wits could reduce gender to genitalia except under the influence of an ideology contemptuous of reality. Instead I will suggest that, if with imperfect knowledge we are to give the tentative advantage to one side or another, as my coauthors and I do, these facts seem more pertinent that Chappell’s opinion: 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. Moreover, and more relevantly here, studies also suggest that mothers and fathers foster—and their respective absences impede—children’s healthy development in different ways. So, as we tried to show, it would be surprising if same-sex and opposite-sex parenting were equally effective. But let the methodologically sound studies be done, and the chips fall where they may.

Whose Humanism?

This debate is often seen as a struggle between Bigots (me and my ilk) and Humanists (Chappell and his), but though I do not believe Chappell to be a bigot, I do think defenders of the conjugal view are the true humanists. The more the conjugal view prevails culturally, the easier it will be on the unmarried, who will be less susceptible to thinking that what they lack is the most valuable or only kind of deep communion.

There is plenty of evidence that our society would benefit from such an emotional liberation. For example, on his Atlantic blog a few months ago, Ta-Nehisi Coates admitted that his recent historical reading had “actually opened up some portion of my own imagination—the possibility of feeling passionate, but not sexual, about someone who I wasn’t related to.” He confessed: “‘Passion’ isn’t a word that often enters into the description [of] friendships these days. And yet [it’s] present in the writings of previous generations”—when people didn’t equate marriage with intimacy, and intimacy with marriage, but recognized it as the paradigm realization of one type of intimacy among others. The conjugal view, precisely in presenting marriage as oriented to procreation—mothering and fathering—and true bodily union, not just shared experience, keeps from making marriage totalizing. It alone makes clear which activities we owe our spouses in marital love; which we owe it to them not to share with others; and which we could share now with them, now with others, without any compromise of principle.

Chappell’s revisionism would have us blur these distinctions. If marriage differs only by degree (and not in kind) from other bonds, then non-marital relationships, as between sisters or close friends, are diminished, for marriage offers simply the most of what makes any union valuable: shared experience. Those who (for whatever reasons) do not marry just settle for less.

So it is that the contemporary thought police, in their zeal to expurgate and erect barriers against an ideological offense and its perpetrators, miss the richly populated horizon visible from the more traditional perspective, a horizon with space for many types of communion, each with its own depth, passion, and constancy of presence and care.


Sherif Girgis, a 2008 Rhodes Scholar, is a Ph.D. candidate in philosophy at Princeton University and a law student at Yale Law School. He earned an A.B. in philosophy at Princeton and a B.Phil. in philosophy at Oxford.

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Copyright 2011 the Witherspoon Institute. All rights reserved.

AC: In the early days of bioethics, we had these conferences at the Hastings Center, where I began my bioethics career, where Alasdair MacIntyre, Paul Ramsey, Leon Kass would come and talk about issues. And I began to form an idea of what bioethics’ role was—and I still believe it to this day: My philosophical idol is Socrates. He worked frequently in the public sphere. I think as a bioethicist you try to alert the public, you warn people, you push to see what’s true, but at the end of the day, bioethics gets out of the way. You don’t issue final judgment; you must resolve issues in the political sphere. If Robby’s guys get elected all the time, and they ban embryonic stem-cell research, I’ll scream and yell, but if that’s what people decide, that’s what people decide. I favor bioethics commissions that raise issues, clarify them, and then give them to the polity to resolve.

RG: Well, it’s true that President Bush’s council on bioethics, on which I had the honor to serve, sometimes went beyond advising the president of the United States himself. But it’s worth remembering that the Executive Order creating the Council included a mandate to “provide a forum for a national discussion of bioethical issues.” The collected readings we published were an effort at large-scale public education. I think that kind of work can easily be defended, and the best defense is that by doing it under the auspices of a commission, and especially an ideologically diverse commission like ours, it is possible to draw attention to the basic values issues that Americans should think about when they consider bioethical questions. I doubt that it would be possible to do it as well in reports issued by, say, Princeton University, or even the premier center for bioethics here at the University of Pennsylvania. If the commission is not the place, where, then? Because the universities aren’t doing it very well, and perhaps can’t.

AC: So it’s funny you should say that, because I’ve also thought—and I don’t know how to make this happen, exactly—but if I had a politician ask me for advice on something, I’d like to be able to bring Robby in—really—and say, “I’ll tell you my advice, and you can listen to the minority, distorted, bizarro other opinion…”

RG: Soon to be the majority! [Laughter]

AC: But here it is, listen to the other view, and you’ll get more from a conversation than you might from me just talking to you.

RG: Art is absolutely right on this. I was asked by three Republican presidential candidates in the run-up to the 2008 election for briefings on embryonic stem-cell research. Senator McCain, Governor Romney, and Mayor Giuliani. Mayor Giuliani did it differently than the other two. He invited me and an advocate of embryonic stem-cell research from one of the New York-based patient advocacy groups to discuss the question with him. Essentially, it was a debate in front of Mayor Giuliani. And I do think that it was more fruitful than the other two briefings, where I had my little captive audience, but would just give my best answer when they asked, “Well, why do the people on the other side think what they think?”  And I’d try to give the argument, but I think I was probably less effective in giving the argument than someone who actually believed it.

Let’s have one of those exchanges now about a big issue in bioethics: eugenics. You have people like Professor Kass, who are warning that it is popping up again in the availability of certain options for improving the gene pool or selecting for or against early human life that has certain defects and so on—but that the “new eugenics” are disguised as opportunities for practicing autonomy, and that, as a result, they are viewed as morally okay. Do you think that’s happening, as a factual matter? And is even uncoerced eugenics wrong in principle? Was eugenics in the 1930s, say, wrong only because it was coercive, or also because it was eugenics?

RG: You’ve heard me make the argument about human dignity without any appeal to religious authority or biblical revelation or theological premises. But the most vivid expression of that idea is that man is made in the image and likeness of God. Whether or not that’s literally true, I would still hold that human beings have a certain dignity that distinguishes them from other material objects that we know about. There may be other creatures in the universe that possess a rational nature, and I would say that if there are such beings, they too are of inherent and equal dignity and cannot be reduced to the status of mere means or property. In the end, this is really the only reason to oppose something like slavery, or to consider that domination and conquest are a bad thing. So people who oppose these evils have to embrace some notion of the special worth—we can use the word “dignity” or “sanctity”—of a human being. But that means there are some ways you can’t treat human beings. You can’t treat them as instruments, or just the way you treat cows and horses. That is true even when it comes to breeding, or to improving the quality of the race. Or treating them like products—this is what Leon Kass is so worried about. He’s worried about reducing human beings to the status of products of manufacture. And he’s absolutely right to be concerned about that. That is incompatible with our dignity as human beings. Which leads me to think that the problem with eugenics is eugenics itself. It’s not just that the eugenics practiced by the Nazis was coercive. The idea predated the Nazis. The book Die Freigabe der Vernichtung Lebensunwerten Lebens (Allowing the Destruction of Life Unworthy of Life) was not written by the Nazis. It was written by German progressives in the Weimar period, Karl Binding and Alfred Hoche, who were, respectively (as I recall), a jurist and a medical doctor. And they weren’t thugs like the Nazis; they were well-educated, well-intentioned, polite people—the kind of people that you’d be pleased to have dinner with. But I believe they embraced a very bad idea that was easily taken by the Nazis as a justification for the atrocities that they committed. So I would like to see eugenics itself, and not just the Nazi version of it, relegated to the ash-heap of history. Today we are seeing a revival in eugenics, this time under the cover of (and often in the name of) autonomy.  People say, for example, that so long as it is parents who are choosing to abort a Down syndrome baby, or failing to treat a handicapped newborn, and it’s not the state mandating it, then it’s okay. That, I believe, represents the abandonment of something precious in our civilization and in our polity. And that’s the idea of the equality and dignity of all human beings. This treasure of our civilization is the idea that, in some fundamental sense, all of us are created equal.

AC: So, I think that the coercion is, historically, really what made the Nazis’ position absolutely wrong. They practiced government-mandated negative eugenics. They killed involuntarily as social policy to improve the German genome. So put that aside, that’s just an issue of making sure you know when you’re going to use the metaphor—it’s not just eugenics, it’s that kind of eugenics. So to me, I think that intervening to try to improve health and function is part of what medicine does. And there’s some role for medical engineering and cellular engineering to achieve those goals. I think when you start to slide into the aesthetic and cosmetic improvements—I’m not sure that’s something that society or the public has to fulfill. But do I think we will someday try to alter a genetic message to get rid of certain diseases? Yes. Do I think that we’re likely to see the selection of certain types of gametes that might avoid certain clear-cut disease states? Yes. Do I think that the state has to be in the business of affording the opportunity for everyone to have a 6’5” basketball-playing mathematician? No. For me, there is some role for what I’ll concede as eugenics—if you want to take eugenics as just trying to improve the overall hereditary health of the public. For example, if you could fix the child with Tay-Sachs, I don’t think it takes away from the dignity of the child with Tay-Sachs.

RG: I agree. But would you draw the line at trying to enhance intelligence—

AC: I do. I think intelligence is so complicated that you don’t know what the hell you’re doing. If someone came to me and said, “Well, I’m going to try to enhance memory,” that may be good and that may be bad. It’s tricky business, number one. And number two, that isn’t a disease. So I’ve never been a proponent of allowing sex selection. We don’t allow it at Penn, actually. We could do it instantly. It’s not that hard. And other places do it. But gender is not a disease. If you come to us and say, “Could I use gene therapy”—as I said, “for Tay-Sachs, or to try to improve muscular dystrophy”—I’d be first in line to say, “I think that’s great, and we have to test it, and there may be some risk to that, but I’m okay with it,” even though some in the disability community might say, “Well, then, your goal is to get rid of disability, isn’t it?” And I might concede at that point, “Yes—if I could do it.”

RG: But not by getting rid of the disabled.

AC: Oh, no, no, no.

RG: Because that’s the key distinction.

AC: I agree, but some in the disability community hear inferiority, lack of respect, when you say, “I’d prefer people who could function more.” I’ve heard this with the deaf community. To me, hearing is better than not hearing. And it’s pretty clearly a function you’re supposed to have. It’s true that you can sign, and that there is a deaf community. And I get that there’s Gallaudet College. I’m not proposing to close them; I think you should fund them. But at the end of the day, if I’m the child of a deaf couple, I’d rather be able to hear and sign, and decide what I’m going to do from there. I’m not going to make a deaf baby because the couple says, “We want a kid like us.” No steps should be made to honor that kind of autonomy—things that will harm or set back people. I’m worried for that reason about things like intelligence or athletic ability. You’re narrowing futures, deciding what the kid is going to be, raising expectations, instead of allowing them to be more open. So I favor, if you will, ‘eugenics’ on the disease-elimination front, but I am not so crazy about performance-enhancement or the behavioral meliorism.

So it sounds like both of you have two distinctions you want to draw. One is between enhancement and therapy—

AC: Right. And many say you can’t, but I think you can at the extremes.

And the other is between negative and positive, between destroying life that has the therapeutic problems versus—

AC: Trying to engineer it away. Medicine does that now, right?

RG: I think Art’s reminding us of the ends of medicine: the goal of medicine is the restoration of healthy functioning of the organism and its parts, within the bounds of ethical norms. I mean, you don’t restore health by murdering someone conveniently to get a heart for somebody else who happens to need a heart transplant. We understand that. That’s just a plain violation. But my point is that when we treat medical professionals as people who are supposed to enhance our lifestyle choices—the kind of kids we want to have, whether our kids are good at math, whether they’re basketball players and 6’5”—it causes medicine to lose track of its mission and places at risk its commitment to ethical norms shaped by that mission.

Read the first part of this interview here.


Sherif Girgis is a Ph.D. candidate in philosophy at Princeton University.

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Copyright 2011 the Witherspoon Institute. All rights reserved.

People sometimes contrast those who go on evidence, facts, science, and reason, with those who “politicize the science.” But both of you seem to think that besides scientific findings, moral norms have to govern scientific inquiry and medical practice…

AC: That’s why Robby and I can get along. We’re just fighting about the norms. But we both know that you have to have normativity. Bioethics without norms is completely blind!

…and that those norms are not going to come from science.

RG: No. Bioethics is ethics, and ethics is about right and wrong. We know you can’t go about figuring out what’s right and wrong by scientific methods. So the norms have to come from somewhere else. And since we are a democratically constituted people, we are going to have to resolve by democratic procedures disputes about what the norms are, and how they apply in particular cases. Now that, I’m afraid, is politics. Not in some pejorative sense—rather in a good sense, in the democratic sense. Together, we deliberate, debate, and decide. So I think the juxtaposition that you mentioned is just phony. It’s not a dispute between the people “who believe in reason and evidence” and people who “are opposed to science.”

AC: You can pile up evidence to the size of the Jungfrau, but if you don’t have norms, evidence does you no good. But some out there believe that the evidence speaks for itself.

The scientific evidence speaks for itself?

AC: Yes, there are adherents of what might be called logical positivism, or scientism.

They are out there! They believe the facts alone dictate moral choices.

RG: I agree. I would add that it is highly ironic that the scientism that Professor Caplan observes out there, and rightly condemns, is often embraced by people who regard themselves as especially sophisticated and even enlightened.

AC: Yes, yes. As an exemplar, take some of the writings recently of Zeke Emanuel, the doctor who’s been whispering in the ear of Obama. Rahm Emanuel’s brother.

RG: He was the Director of the Bioethics Council under President Clinton.

AC: Zeke and I actually have been arguing more contentiously than Robby and I over the past few years because Zeke is an exemplar of scientism: “If we all collect enough evidence, it will be clear we should do X.”  I disagree. You need normativity to do both ethics and bioethics.

So in light of what you’re both saying, is there a way of separating science and religion—or of walling off the influence of religious views from the settlement of these policy issues, in a country where many get moral guidance from their faith traditions?

AC: That isn’t going to happen. But the religious communities have to engage one another, too. I think what science does, relative to the religious discourse, is it tries to protect its self-interest. So scientists generally have a very strong commitment to freedom of inquiry, no matter what the heck they’re doing. I have to say it’s not quite my view. Freedom of inquiry is a great thing. But most scientists also want NIH money, or tax money. Science needs public funds; it’s a hugely expensive public endeavor. So scientists have to make their case to the public. They’re used to doing what they want, under the idea that freedom of inquiry will bring the public the most returns. They also have an advantage over religion in that they can deliver shorter term but more immediate rewards. You can at least turn on your heater due to physics. Where your soul is in the afterlife…

Jury’s still out. [Laughter]

AC: But at the end of the day, they’ve got to convince the polity and the religious traditions. Sometimes, if you’re trying to make room for scientific advance, you try to play into the divisions of religious opinion. But the most powerful thing that happened in the stem-cell debates was not arguments by Robby or by me. It was patient advocacy groups speaking up. You come in and say, “I’m in a wheelchair, or my child has diabetes…” Very, very powerful. It’s not religion, but let’s call it a normative stance that is enormously forceful. You must help those in desperate need. That’s how things get settled—not science alone.

Let’s talk more about that bioethics debate. Leading up to 9/11, public funding of stem-cell research in which human embryos are destroyed was a huge issue in American politics, and it deeply polarized the country. There was a very long and public deliberation by the president. To some degree it antagonized some people in the scientific community against some people in the religious community. Was it worth the polarization, the social and political costs?

RG: To me, at stake was our fidelity to the principle of the sanctity of human life. So I could not have yielded and said, “Well, that’s not important.” At the level of principle, I think probably both sides would say that it’s a big issue. But my sense is that it got blown enormously out of proportion as far as the practical significance of a policy one way or another was concerned. First, because it became useful politically. It was a way for Democrats to marshal their base against Bush in 2004. Ron Reagan, the late president’s very liberal son, to my mind just wildly hyped the potential therapeutic promise of embryonic stem cells. I think a lot of people were led to believe—and to what extent scientists were responsible for this is an interesting question—that if only the regulations were relaxed, embryonic stem-cell science would be central to our medical research and practice going into the future, and that it would massively alleviate suffering and produce cures for dreaded diseases. But it wasn’t true. Prescinding from the ethical questions, my own view is that there are scientifically interesting things that can come of embryonic stem-cell research, but that even without regulation, it wouldn’t be central. It doesn’t promise anytime soon, if ever, the amelioration of suffering or cures for dreaded diseases.

AC: So far I don’t disagree with that too much. Embryonic stem-cell research was completely overhyped, in terms of its promise. And people knew it at the time. I tried to say so myself at different times myself, even though I support embryonic stem-cell research. But this notion that people would be out of their wheelchairs within a year if we could just get embryonic stem-cell research funded was just ludicrous. Just simply silly.

RG: They knew it at the time?

AC: Yes, those saying it had to know it at the time. The scientists had to have known that. Who has ever delivered a cure in a year from something that’s basically a dish? That’s never happened. Gene therapy was promised as a cure for everything, and it is now starting to cure things, 15 years after the initial gene therapy experiments in dishes were being done. I think embryonic stem-cell research—if it works out, if you can control stem cells derived from embryos, if they don’t revert back… but we don’t know what chemicals to put around them, to get them to become what we want. We don’t know where to put them. But the politics of that issue were abortion politics, meaning that one side had as a principle, “Don’t kill.” The other side had as a principle, “You’ve got to cure.” And that escalated the rhetoric. So I think the science got hyped in response to the politics. Norms drove the debate. Embryonic stem-cell research for me is one of what I might list as 20 scientific frontiers that you might want to pursue. It’s not the frontier, but it’s one of a number of them.

RG: But it sounds to me like a niche.

AC: Oh it’s a niche, absolutely. Bio-banking, synthetic biology, bioagriculture, regenerative medicine at the adult stem cell level… There’s a bunch of areas of science with equal promise—

RG: If scientists knew that what they were doing was hyping it, then—even laying aside the ethical question about the status of human embryos—it seems to be deeply dishonest, clearly wrong.

AC: Here’s an assertion that you hear all the time: “Stem-cell research will help Alzheimer’s.” But stem cell research has no possibility of helping Alzheimer’s. Alzheimer’s is a gunk-up-the-brain disease, where every cell is affected. You can’t fix it by any sort of stem cell research. Model it? Maybe. Cure it? Never.

RG: In 2003 or 2004, a major Washington Post article quoting the central authorities on this made exactly the same point. Now that’s the kind of dishonesty that threatens to alienate the public from science. Because even if the public buys it in the beginning, and the scientists win the political debate, when they can’t deliver on the promises they made, people’s faith in scientists—crucial for the funding of science—is placed in jeopardy.

AC: I think it’s worse. There’s a clinical trial going on in California with private funding, for a spinal cord study. That study is poorly designed, shouldn’t go on—I’ve said so. The model that you want to use on stem cells is in your eyes: if you wreck one, you still have the other, and they’re easy to access. But trying to shoot cells—and you don’t know what they’re going to do—into someone’s spinal cord on the basis of a few rat experiments… If that goes wrong, the hype has been such that when critics come in and say, “it shouldn’t have been done,” it will set the field back to zero. I’ve tried to tell my science colleagues, “If you make a mistake on this first trial, and kill somebody? You can hang it up.”

RG: I think there was a warning that should have been heeded that came as a result of the exposure of the fraud committed by the South Korean scientist Woo Suk Hwang in 2004. If I recall correctly, his paper had been published in Science, and it had been fast-tracked in what seemed transparently to be part of a political effort to sell the public on human cloning to produce patient-specific embryonic stem cells. Since this would serve the political cause, normal checks that would have prevented the publication of a fraudulent paper were not observed, and it turned out to be fraudulent.

AC: And a little less lofty: “Give it to us, because if you give it to, say, Nature, they might slow it down!”

RG: [Laughter] Is that what happened? Well, the cutting of corners for political reasons is such a dangerous thing to do—to science. But when Ron Reagan was trotted out at the 2004 Democratic National Convention to make these preposterous claims about Alzheimer’s, of course you spoke out—but were there others?

AC: There were and there weren’t. Because at that point, I think what happened was that the polarization of the politics got so bad that it was a team philosophy.

So it would look like you betrayed your side if you spoke out with the truth?

AC: Definitely… It’s a little harder to be a moderate in the middle of that. I can give you a parallel: Terri Schiavo. I was vociferous in my insistence that the husband should make the call in the case of Terri Schiavo [about whether to continue her artificial nourishment after her severe brain damage]. But one thing I knew was that she was absolutely permanently vegetative. She had two heart attacks; she wasn’t getting oxygen to the brain. People were saying, “I could hear things in PVS.” Doctors said, “I can make her better.” And no one on the other side would say that was bull. So certain factual claims get laid aside in the heat, when bioethical disputes move up to culture war level. I can moan about this. “Alzheimer’s disease? Really, a systematic disease of the brain? You’re going to replace every cell in the brain with embryonic stem cells?” But you know, the price of entering into that arena is you can lose or be put in the service of what you know to be purely politicized debate.

RG: Art and I disagreed about the Terri Schiavo case, but the fundamental point he is making here is absolutely right. Back on the embryonic stem-cell debate, there were people on my side of the ethical question who contended that there was absolutely no reason to pursue embryonic stem-cell research even if the stem cells could be obtained without destroying embryos, because (they said) everything that could be done with embryonic stem cells could be done with adult stem cells and we knew it. Well, I knew that we knew no such thing. To admit the truth that there very well may be uses for embryonic stem cells—not therapeutic uses at any time soon or perhaps ever, but in basic science, or perhaps in the construction of disease models—one needn’t abandon one’s principled position against the destruction of embryos.


Sherif Girgis is a Ph.D. candidate in philosophy at Princeton University.

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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.

Rauch and Blankenhorn’s proposal is straightforward: The federal government would offer civil unions (including most, if not all, marital benefits) to same-sex couples that have entered a civil union under their state’s law. That is what the supporters of same-sex ‘marriage’ (“revisionists”) get out of the bargain. At the same time, the federal government would enact legislation to protect religious organizations from being forced to acknowledge same-sex unions. And it would recognize only those civil unions that are licensed in states that also offer religious-conscience exemptions. That is what the supporters of traditional marriage (“traditionalists”) get. (We must note that Rauch and Blankenhorn do not specify the scope of the religious liberty protections that would be put in place and how religious liberty rights would be preserved in the face of assaults in the name of anti-discrimination principles.)

But as we see it, this proposal grants too much to revisionists and too little to traditionalists. Revisionists get the substantive (if not linguistic) treatment of homosexual unions as marriages; traditionalists get conscience protection (of unspecified scope). But traditionalists’ primary concern is not simply to secure an enclave of personal liberty to regard marriage as they see fit. Rather, it is to promote a healthy culture of marriage understood as a public good that also fulfills spouses and the larger communities of which they are members.

As a community of husband and wife founded on a bodily union whose natural fulfillment is the conception of a child, marriage not only fulfills human beings as embodied, sexually complementary persons; it is also oriented to the bearing and rearing of children. Because those children are society’s youngest and most dependent citizens, the public has an interest in healthy marriages. So legally and socially enforcing marital norms makes sense. By attaching a father to his children—and to his children’s mother—exclusively and for life, marriage serves society’s interests by securing for children the love and care of both mother and father. A well-ordered society thus supports marriage as an institution that fulfills the adults who choose to enter it and serves the children who may come as its fruit.

The Rauch-Blankenhorn compromise, though, does little to promote traditional marriage, even as it establishes a parallel institution. It treats same-sex unions (in fact, if not in name) as if they were marriages by making their legal recognition depend on the presumption that these relationships are or may be sexual. It thus enshrines a substantive, controversial principle that traditionalists could not endorse: namely, that there is no moral difference between the sexual communion of husband and wife and homosexual activity—or, therefore, between the relationships built on them.

But even people who hold differing views on marriage could agree that there is no special reason to extend recognition only to romantic same-sex unions. If hospital visitation rights and Social Security survivor benefits are appropriate for two cohabiting men who have demonstrated long-term commitment and care, does it matter whether they are sexually involved with each other? Wouldn’t those benefits just as well serve, say, two elderly, codependent brothers?

That brings us to our alternative proposal: The revisionists would agree to oppose the repeal of the Defense of Marriage Act (DOMA), thus ensuring that federal law retains the traditional definition of marriage as the union of husband and wife, and states retain the right to preserve that definition in their law. In return, traditionalists would agree to support federal civil unions offering most or all marital benefits. But, as Princeton’s Robert P. George once proposed for New Jersey civil unions, unions recognized by the federal government would be available to any two adults who commit to sharing domestic responsibilities, whether or not their relationship is sexual. Available only to people otherwise ineligible to marry each other (say, because of consanguinity), these unions would neither introduce a rival “marriage-lite” option nor treat same-sex unions as marriages. Their purpose would be to protect adult domestic partners who have pledged themselves to a mutually binding relationship of care. What (if anything) goes on in the bedroom would have nothing to do with these unions’ goals or, thus, eligibility requirements.

This proposal will, no doubt, meet with resistance on both sides of the marriage divide. Traditionalists will regret any move that appears to capitulate on the distinctiveness of marital relationships by granting same-sex couplings similar status, even if we would make recognition available to presumptively non-sexual relationships to avoid equating gay unions with marriage. (We ourselves do not favor civil-union schemes of any type, but we are prepared to accept them as part of an honorable compromise among reasonable people of goodwill.) At the same time, revisionists will have to compromise by supporting DOMA, the current Clinton-era federal law that retains a traditional definition of marriage for federal purposes while leaving each state free to define marriage as it sees fit, regardless of what other states do.

But we believe that for both sides, the benefits could outweigh the drawbacks. First, this approach would avoid the hornet’s nest of church-state issues engaged by the Rauch-Blankenhorn proposal. Since neither the presumption nor the legal possibility of sex would be a condition for recognition, homosexual activity would not be incentivized or institutionally normalized. Thus, traditional religious communities would not have to rule out support for our proposal as an implicit endorsement of homosexual activity. And with renewed support for DOMA, they would be free not to promote or treat same-sex unions as marriages. As a result, no special religious-conscience protections would be necessary.

For traditionalists, though, there is another worry. Two state courts have already used existing state civil-union laws as part of their rationale for insisting that the legislature enact same-sex ‘marriage,’ on the ground that “separate but equal” institutions are unjust. If, under the Rauch-Blankenhorn proposal, we enacted same-sex civil unions identical in their structure and purposes to marriage, courts could again use these as a steppingstone to same-sex ‘marriage.’ The benefit of our proposal is that it avoids this possible breach of the compromise by reaffirming DOMA and establishing civil unions that differ in substance, not only in name, from marriages.

Our proposal would still meet the needs of same-sex partners—based not on sex (which is irrelevant to their relationship’s social value), but on shared domestic responsibilities, which really can ground mutual obligations. It would provide a practical compromise that need not offend either side’s nonnegotiable principles. And it would lower the emotional temperature without chilling debate, which would continue at the state level, perhaps now more fruitfully.

Ryan T. Anderson is editor of Public Discourse. Sherif Girgis is a 2008 Rhodes Scholar studying moral, legal and political philosophy at Oxford University.

Copyright 2009 the Witherspoon Institute. All rights reserved.

The Irrelevant

Kmiec observes that voting for a candidate need not imply support of all his positions. He also notes that neither presidential candidate’s policy ”guarantees absolute legal protection to human life” and that overturning Roe v. Wade would not directly save the 1.2 million American lives killed by abortion each year.

Of course, neither Archbishop Chaput nor anyone else has denied these points, which are irrelevant. Catholics, as well as others, know better than to seek panaceas in any policy or saviors in any leader this side of paradise. We doubt that Archbishop Chaput expects abortion or any other crime to cease before the world does. The real question is whether society has an obligation in the meantime to protect the unborn against the crime of feticide, or instead to sanction it, widen its availability, and even fund it while purporting to address its deeper causes. McCain supports the former, while Obama supports the latter. It is true that overturning Roe would not completely restore justice to the unborn, but it would remove a grossly unjust and otherwise insurmountable obstacle to their legal protection, something that ethical principles—and Church teaching—require.

The False

Protection in Law

Kmiec denies this, insisting that his disagreement with Chaput ”is not over the essence of Church instruction which gives primacy to the promotion of human life, but rather, the preferred means of implementing it.” But this is patently false.

A fundamental principle of Catholic social teaching—and any sound political philosophy—is that all members of the human family possess inherent and equal dignity, and deserve the protection of the law. This applies regardless of sex, race, or creed, but also regardless of age, size, stage of development, or level of dependency. Chaput affirms this principle. Kmiec equivocates—at best. Obama denies it.

Indeed, Obama’s record shows that he denies it more forcefully than any major politician in American history. Princeton legal philosopher Robert P. George has spelled it all out: Obama opposes the Hyde Amendment, which restricts taxpayer funding of abortions in the U.S., and the Mexico City policy, which bars the use of federal taxes for abortions overseas. He has promised to sign the Freedom of Choice Act (FOCA), which abortion-rights advocates themselves say would ‘’sweep away hundreds of anti-abortion laws [and] policies,” including parental-involvement and notification requirements, mandatory pre-abortion counseling and ultra-sounds, late-term abortion restrictions, and even conscience protections for health-care providers.

Obama opposed the Supreme Court’s decision to uphold a ban on partial-birth abortion and has promised to appoint only pro-Roe justices to the Supreme Court, calling abortion a constitutional right essential to women’s equality. As a state senator, he even opposed legislation (which the U.S. Senate passed in identical form by a 98-0 vote) to protect children who are born alive after failed abortions.

Addressing Root Causes

Kmiec maintains that Obama endorses ”alternative social and cultural support for expectant mothers.” As a matter of rhetoric, this might be true; as a matter of record, it too is demonstrably false. Obama has not endorsed the Pregnant Women Support Act, a bill sponsored by Democrats for Life aimed simply at making it easier for women to choose alternatives to abortion. Obama has even opposed this bill’s extension of health insurance to unborn children and its provision that women considering abortion be informed of possible health risks and the gestational age of their child. He also favors stripping federal funding from pro-life crisis pregnancy centers that provide counseling and financial support for thousands of women.

Kmiec also claims that more lives would be saved under Obama’s policies than under McCain’s. Unsurprisingly, this is belied by the evidence.

First, a President Obama would likely sign into law a bill he co-sponsored as senator that would sanction the mass production by cloning of embryonic human beings for research and effectively require their subsequent destruction. This bill alone—which McCain opposes—would multiply the killing of tiny human beings on an industrial scale.

Ignoring this, Kmiec focuses on abortions, claiming that ”empirical study confirms abortion reduction through the Obama cultural and economic assistance course of action.” He asserts—but provides no reference to show—that generous social welfare programs ”have significant impact in the reduction of abortion.”

In fact, precisely the opposite is true. As political scientist Michael J. New has demonstrated, such programs have been shown to have next to no effect at all. But pro-life legislation—limited after Roe to modest measures like informed-consent and parental notification laws and public-funding restrictions—have dramatically reduced abortion rates. Obama would eliminate all of these laws. After examining the empirical evidence, Dr. New concludes:

The number of abortions has fallen in 12 out of the past 14 years and the total number of abortions has declined by 21 percent since 1990. These gains are largely due to pro-life political victories at the federal level in the 1980s and at the state level in the 1990s which have made it easier to pass pro-life legislation.

Indeed, NARAL Pro-Choice America has lamented that just the denial of public funds for abortion ”forces about half the women who would otherwise have abortions to carry unintended pregnancies to term.” In other words, NARAL estimates that Obama’s policy of public funding could double abortion rates. If Kmiec has reliable evidence to the contrary, let him produce it.

The Fallacious

Roe Shouldn’t Go?

Kmiec faults Archbishop Chaput for suggesting that our vote in the presidential election should be guided by each candidate’s likely Supreme Court appointments. Kmiec argues that this legal-judicial pro-life approach has not worked in the past and relies on uncertainties about the timing and number of upcoming Court vacancies.

This particular set of claims is a hybrid of falsehoods and fallacies. But let us isolate the latter. Never mind that abortion-rights activists fear a McCain presidency because they see as clearly as anyone—except, apparently, Doug Kmiec—that it could mean a fifth vote to overturn Roe. Never mind that the four justices that think Roe was wrongly decided were appointed by Republican presidents.

It is clear that Kmiec’s argument that we should abandon the legal recourse because it has not yet been perfectly effective is a non sequitur. For if our forbears had accepted this logic, then the pro-slavery Supreme Court case of Dred Scott v. Sanford would never have been nullified by the Civil War constitutional amendments abolishing slavery and extending to all persons in the United States the right to the equal protection of the laws. And the pro-segregation case of Plessy v. Ferguson would never have given way to Brown v. Board of Education. Politicians and voters would have been admonished to fight instead the root causes of slavery or segregation, surrendering hope of changing the law of the land on either matter.

Proportionate Reasons?

But we can isolate a still deeper fallacy underlying Kmiec’s central thesis about the justifiability of voting for a pro-choice candidate. Put aside for a moment all of Kmiec’s falsehoods—about the extent of his disagreement with Church teachings, Obama’s putative support for alternative ways to reduce abortion, the purported effectiveness of those alternatives, the supposed ineffectiveness of legal remedies that McCain endorses, and whether Obama’s policies would really reduce the number of sanctioned killings of nascent human beings. In fact, assume against the evidence that Kmiec is right about all of these matters of contingent fact.

What about his argument that Church teaching—including Pope Benedict’s stated views on the matter—would leave room for a principled defense of a vote for Obama? Is Kmiec right to claim that there can be reasons to vote for a pro-choice candidate over a pro-life one that are proportionate to the possibly unintended harms of doing so?

Notre Dame legal scholar Gerard Bradley provides some helpful thought experiments to guide us in applying the Golden Rule as a proportionality test: What if it were not unborn babies being denied legal protections, but some other class of people? If 1.2 million American women a year were being killed by abusive husbands, he asks, would we vote for a candidate who was ”pro-choice” about the ”private” matter of lethal domestic violence but favored addressing its root causes (say, with anger-management classes and education)?

Or suppose some candidate favored protecting a “right” to kill hundreds of thousands of mentally handicapped or infirm people each year. Even if we thought his views superior to his opponent’s on issues like foreign policy, the economy, and health care, would we be justified in voting for him?

Given Obama’s record, we can even strengthen the analogies: What would we think of a candidate who favored financially supporting legalized domestic abuse or extermination of the unwanted?

Of course, some would object that the cases are different because unborn human beings do not enjoy the same moral status as the rest of us. But this would be to deny the principle of basic human equality that Kmiec claims to accept and that defines his intended audience, faithful Catholics and other pro-lifers. So every pro-life citizen should see the radical unsoundness of his argument that there are proportionate reasons to accept the publicly funded and sanctioned killing of unborn human beings when another candidate would remove obstacles to their legal protection.

Professor Kmiec’s response to Archbishop Chaput is a textbook study in shoddy reasoning. He has placed red herrings, baseless factual claims, and glaring non sequiturs in the service of a conclusion whose logic would be laughable if it did not threaten countless innocent lives: that the most pro-abortion politician in American history would be a blessing for the unborn. Barack Obama offers the unborn no hope to believe in but much change to deplore. Doug Kmiec offers Barack Obama cover for his assaults on the sanctity of human life.

Ryan T. Anderson is editor of Public Discourse. Sherif Girgis is a 2008 Rhodes Scholar studying moral, legal and political philosophy at Oxford University.

Copyright 2008 the Witherspoon Institute. All rights reserved.