Thanks for agreeing to this exchange about the nature and meaning of marriage. My experience with exercises like this one, conducted in a spirit of friendship and goodwill, is that they lead to deeper understanding, even if the interlocutors do not achieve agreement.
You characterize ours as a debate about how “marriage” should be defined. But that question cannot be answered until we engage a prior one: What is marriage—considered not just as a word or legal status, but as a form of relationship with a distinctive value and set of shaping norms, which law has reason to facilitate and even promote? After all, to know whether marriage policies violate equality—whether they fail to treat like relationships alike—we must know what makes a type of bond a marriage and distinguishes marriages from other types of companionship or relationship.
On that question, I have (1) stated a position, (2) defended it by argument, and (3) offered criticisms of the leading alternatives. As far as I can tell, you have not stated, much less defended, your own general account of what marriage is and what sets it apart from other forms of relationship. So far, I and other readers can be certain only that you reject the norm of sexual-reproductive complementarity so central to the conceptions of marriage known to history.
I will defend that norm in a moment, but first let me comment on the challenge to it you present by way of the case of Ann and Ellen, who share a bed and a home and rear children together. Every word of what you say about the two women could also be said of the committed multiple-partner sexual relationship of a college chum of mine (with whom I have a valued friendship, as I do with you, despite our moral and political differences of opinion). He and his three partners have two children, now grown and seemingly well-adjusted, and they want their foursome to be recognized legally. The logic of my position says that it should not be; the logic of yours, it seems to me, says that it should be.
What is your view?
Indeed, consider a few twists on the story. Imagine elderly sisters sharing a home and caring for each other and perhaps bringing up an orphaned nephew; or nuns caring for orphaned children together. Or suppose a couple invite into their lives a third romantic partner, Jennifer. If Ann and Ellen’s partnership should be recognized as a marriage—because it is a committed domestic bond in which children are or may be present—why not these others? In all cases, consenting adults share hopes and dreams, the burdens and benefits of home life, a desire for social legitimacy for themselves and their children. Why, on your view, is it not “shading into hostility,” or unfair to their children, to deny them recognition and benefits? Or do you think it is?
The judgment that marriage is the committed sexual union of man and woman, sealed in coitus and inherently oriented to procreation and domestic life, is shared by the common and civil law traditions as well as the Jewish and Christian faiths (among other religious and philosophical traditions). Its core is found in the teaching of philosophers ranging from Socrates, Plato, Aristotle, Xenophanes, Musonius Rufus, and Plutarch in antiquity to Kant, Anscombe, and Gandhi in the modern period. That does not prove that the post-sexual revolution, revisionist view of marriage as a form of romantic-domestic companionship is certainly wrong, but it does show that the historic (“conjugal”) view did not originate in the book of Genesis, and is not rooted in animus. Indeed, the idea of marriage as a conjugal union (and of marital consummation) arose centuries before the concept of homosexual identity, when the only other sexual acts being considered (and rejected) as capable of consummating were ones between a lawfully wed man and woman. Even cultures favorable to homoerotic relationships have enshrined something like the conjugal view and never entertained the idea of same-sex marriage.
In What Is Marriage? my coauthors and I try to present these traditions’ central insight in the thesis that what makes a marriage (and provides the intelligible grounds of its structuring norms) is comprehensive union. We begin by noting that any voluntary bond is created by common action—by cooperative activity, defined by common goods, in the context of commitment. The activities and goods build up the bond and determine the commitment it requires. Then we argue that the kind of union created by marriage is comprehensive in just these ways: in (a) how it unites persons, (b) what it unites them with respect to, and (c) how extensive a commitment it demands. That is, it unites two people (a) in their most basic dimensions, in mind and body; (b) with respect to procreation, family life, and its broad domestic sharing; and (c) permanently and exclusively.
You contend that same-sex partners could be united in just these ways. But clarifying each will show that they cannot be—unless we so stretch the criteria as to erase any principled difference between marriage and companionship.
Examining the Criteria for Marriage
As to (a), the union of mind and body: What bodily (biologically) unites two people is much like what unites the parts of an individual. One’s organs form a unity by coordinating for the biological good of the whole (one’s bodily life). Likewise, a male and female form a biological unity by mating—that is, by coordinated activity of the type that causes reproduction when its nonbehavioral conditions obtain. This understanding accounts for the historic legal norm of consummation of marriage by coition—a norm developed entirely apart from any questions regarding same-sex or multiple partner bonds. (Of course, it presupposes—rightly in my view—that our bodies are part of our personal reality as human beings, not subpersonal extrinsic instruments at the service of the conscious and desiring aspect of the self—a point that I suspect is at the foundation of our disagreement.)
While other sexual acts may be regarded by those desiring them as fostering emotional attachment, so can many non-sexual activities, which clearly involve nothing like the sort of bodily union integral to marriage (not only in my personal view, but across time and diverse cultures). So if—contrary to the historic understanding—sex acts of any type can seal a marriage, there is no reason of principle that marriage should be a sexual relationship at all.
As to (b), marriage’s inherent orientation to procreation, family life, and thus a comprehensive range of goods: what explains this is the fact that the act that makes marital love is also the kind of act that makes new life. So marriage, the bond so embodied, would be fulfilled by family life, and is always fulfilled by the all-around domestic sharing uniquely apt for it.
If it is rather the choice to adopt that makes a bond oriented to family life, and hence marital, then any group of individuals can form one—romantic partners, to be sure, but also two sisters in a platonic partnership which no one considers inherently oriented to procreation, as marriage is.
As to (c), the fact that marriage calls for total commitment: because marriage is comprehensive in senses (a) and (b), it inherently calls for a commitment that is comprehensive, through time (permanent) and at each time (exclusive).
In other bonds, there is no basis for such norms, apart from partners’ subjective preferences. Of course, two men or two women can choose sexual exclusivity, but if emotional intimacy is what makes a marriage, there is no reason of principle that they should not practice sexual openness (if they happen to prefer that) or forgo a pledge of permanence.
Finally, if emotional bonding is what makes a marriage, why can’t three people form a marriage, as poly activists argue? And why, if marriage is fundamentally about intimacy, should the state recognize and regulate marriages at all?
Thus, the “comprehensive union” view of marriage can—but the “emotional union” view cannot—explain at the level of principle these critical features of marriage:
(1) Marriage is inherently a sexual partnership.
(2) Marriage inherently calls for a pledge of sexual exclusivity.
(3) Marriage calls for a pledge of permanence, not a term of years or “as long as love lasts.”
(4) Marriage can unite only two persons, not multiple-partner groups (of whatever combination of sexes).
(5) Marriage should be legally recognized and regulated (unlike other friendships).
This reductio of the revisionist view—that it eliminates any principled difference between marriage and simple companionship—is not just of academic interest. If the law promotes and our culture absorbs a view of marriage that undermines the principled basis for its stabilizing norms, those norms will decline (even more) in practice.
The Revisionist View Undermines Marital Norms
That the revisionist view undermines marital norms in practice as well as theory is increasingly confirmed by the rhetoric and arguments of its advocates, and by the policies they are led by the force of logic to embrace.
Writing in Ethics, philosopher Elizabeth Brake supports “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.”
Three hundred “LGBT and allied” scholars and advocates, including major figures such as Gloria Steinem and Kenji Yoshino, call for legally recognizing multiple-partner sexual relationships, and even nonsexual bonds.
In Brazil, a public notary has recognized a trio as a civil union. Mexico City has considered expressly temporary (renewable) marriage licenses. The Toronto District’s school curricula treat polyamory as among the valid forms of family structure.
[Conservatives] have long insisted that allowing gays to marry will destroy the sanctity of ‘traditional marriage’ . . . [W]hat if . . . [they] are right? Could the gay male tradition of open relationships actually alter marriage as we know it? And would that be such a bad thing?
A San Francisco State University study covered by the New York Times finds precisely the tendency toward “openness” in same-sex marriages that critics predicted.
Notable SSM advocates have even embraced the goal of weakening the institution in these very terms. “[Former President George W.] Bush is correct,” says Victoria Brownworth, “. . . when he states that allowing same-sex couples to marry will weaken the institution of marriage. . . . It most certainly will do so, and that will make marriage a far better concept . . .”
According to writer and same-sex marriage supporter Masha Gessen,
Fighting for gay marriage generally involves lying about what we are going to do with marriage when we get there—because we lie that the institution of marriage is not going to change, and that is a lie. The institution of marriage is going to change, and it should change. . . . I don’t think it should exist. . . I have three kids who have five parents, more or less, and I don’t see why they shouldn’t have five parents legally. . . I don’t think that’s compatible with the institution of marriage.
I do not know where you stand on these matters, but if you believe we should abandon only the norm of sexual complementarity, leaving the rest intact, could you please respond to points (1)-(5) above, by identifying the ground of principle for these other aspects of marriage, and explaining why Brake, Steinem, Savage, Gessen, and the rest are wrong?
The Legacy of Griswold v. Connecticut
To answer your questions:
Griswold (like Roe, Lawrence, and the other cases relying on it) was wrongly decided. Whatever one thinks of the public policies these decisions put in place, these decisions are Lochner-like examples of the judicial usurpation of the constitutional authority of the people and their representatives. Even liberal constitutional scholars, such as Yale’s Akhil Amar, freely admit the nearly embarrassing poverty of Griswold’s reasoning.
The right that the Court euphemistically and disingenuously called “marital privacy” cannot be found anywhere in the text, logic, structure, or historical understanding of the Constitution. The justices claimed to discover it in “penumbras formed by emanations” from various constitutional guarantees—including the prohibition against quartering soldiers in private homes in peacetime. Imagine how liberals would howl if a conservative Court claimed to find a constitutional right of children to be reared by a married mother and father, or protected from abortion, in “penumbras formed by emanations.” As the Court’s leading civil libertarian of the time, Hugo Black, noted in dissent, the majority was doing for liberal beliefs about sex exactly what liberals had castigated conservatives for doing in the cause of laissez-faire economic beliefs in Lochner.
Romer was wrongly decided as well. In our system, municipal power is derivative of sovereign state power. So the laws of municipalities are subject to being revised if the people of the state regard them as unwise, unjust, or contrary to public morality. So, for the reasons spelled out in Justice Scalia’s dissent, Romer is another case of Lochnerizing. Just as conservatives were wrong to impose their policy preferences via the judiciary in the Lochner era, social liberals are wrong to do it now.
Although I believe that ordinary contract and trust law provide the tools required to meet the legitimate needs of non-marital domestic partners, be they platonic or otherwise, I have no objection in principle to civil-unions schemes that, in order to avoid compromising the meaning and social significance of marriage, do not predicate eligibility for participation on the existence or presumption of a sexual relationship between partners. If sharing and caring give rise to certain needs that we need public policy to address, that policy should be independent of marriage law and cover sharing and caring partners of any type. I testified in support of such a “neutral unions” proposal in the New Jersey legislature. It was opposed by social liberals.
Why? Because their objective was to abolish from law and culture the idea that there is something distinctive (and even intrinsically valuable) about the particular form of sexual partnership—historically known as “marriage”—that brings together a man and woman as husband and wife to be father and mother to any children born of their union, conferring on those children the blessing of being reared in the stable bond of the man and woman whose love brought them life.