Reply to George: III. Stop Sneaking in Your Conclusion!

Rob Tisinai

February 10th, 2011

[This post is part of a series analyzing Robert George’s widely-read article, “What is Marriage“, which appeared on pages 245-286 of the Harvard Journal of Law and Public Policy. You can view all posts in the series here.]

Page 246: In which Robert George sets up the argument in a way we cannot accept.

George tries to sneak his conclusion into his reasoning.

Robert George opens his article by making a fundamental distinction — one that we should not let him make.  He writes:

What is marriage?

Consider two competing views:

Conjugal View: Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts—acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it.

Revisionist View: Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear.

In the last entry, I took issue with George’s opening sentence, and now I take issue with his second:  why are these views competing views? The “revisionist” view can contain and include the “conjugal” view. As he describes them, instead of being mutually exclusive:

Figure 1: Competing views

 

…they look like this:

Figure 2: Compatible views

 

Do you see what George has done here? There’s only one way these views are “competing,” and that’s if the conjugal view is the only correct view, and anything falling outside it isn’t “real marriage.” But that’s the very thing he’s setting out to prove! In other words, he’s asking you to accept his conclusion even before he makes his argument.  In fact, he’s sneaking his conclusion into the very beginning of his argument. We call that circular reasoning.

Perhaps this is just a tiny logic trap. Perhaps George could escape it by rewriting his conjugal description as:

Marriage can only be the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together.

But perhaps he knows he would lose his audience right away if he said only couples who bear and rear children can have marriages that are “fulfilled.” Here’s a case where George’s reasoning, careful as it may turn out to be, doesn’t match the experience of real-life married couples.

Ultimately, nothing in the revisionist view excludes the conjugal view. The second figure simply recognizes that children play a key role in many but not all marriages. This doesn’t mean that revisionists are holding up a sign that says, “Stop! No children allowed.” These views are “competing” only because George claims they are. If you reject that claim (as I do), you’ll see many of George’s later arguments fall apart.

“Which ones?” — A digression.

We’ve already talked about George’s rationalist, almost Platonic approach to the question, “What is marriage?”  It shows itself here.  Is it true that marriage is the type of relationship that is naturally (inherently) fulfilled by bearing and rearing children together? That sort of claim is absolute and certain.  It’s hard to know how to go about evaluating it.

Unless, of course, we move our focus to the real world and ask instead, Are marriages naturally (inherently) fulfilled by bearing and rearing children together?

And the answer to that will be:  Which ones?

Some marriages are fulfilled by kids.  Some are broken by them.  In some marriages, one child fulfills the marriage and another tears it apart.

Some married couples don’t want kids at all.  Others were happy to raise to children for a couple decades, and then are happy to send them out into the world, regaining a measure of privacy and intimacy; such couples have marriages that were fulfilled by raising children and now are fulfilled by not doing so.

And none of this helped by George’s definition of fulfilled as it appears in footnote 18: “That is, made even richer as the kind of reality it is.”

I’ll come back to the vagueness and circularity of that later.

All of these observations are empirical, of course.  George wouldn’t approve: he’d probably say this is all based on circumstance rather than principle, and he only cares about principles.  But George’s principles conflict with reality.  At this point, you need to ask yourself whether you’re a rationalist, willing to sacrifice reality so that you can bask in an empty logical certainty, or are you an empiricist, willing to give up that certainty to work toward understanding a messy and confusing reality?

(Okay, I may not have phrased that with complete impartiality.)

By the way, I like this question, “Which ones?”  when people are trying to extend a generalization way too far. For instance:

  • Question:  “Do you really think gay couples contribute as much to society as straight couples?”
  • Answer: “Which ones?”
  • Question:  “Do you think a man can really take the place of a mother?”
  • Answer: “Which ones?”
  • Question: “Do you think apple desserts are just as good as chocolate desserts?”
  • Answer: “Which ones?”

Enough of that.  Back to George’s article.

George stacks the deck with loaded terms.

I objected to George’s opening question. And to the sentence that followed. Now I have problems with his use of “conjugal” and “revisionist.”

Conjugal” means “marital” or “related to marriage.” So he’s dubbing his view of marriage the “marital view of marriage” or — essentially — the correct view. Which would make the “revisionist view” the view that deviates from the correct view. Talk about stacking the deck! Terminology matters, and with these terms, he’s demanding we accept his argument before he even makes it.

Further, how revised is the “revisionist” view? Yes, the notion of same-sex partners is new, but that’s not the heart of what he views as a revision — the idea marriage exists when two partners:

commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable.

How many people would disagree with that? If anything, this “revisionist” view is the commonly-held view, at least when it comes to marriage as it’s practiced by real human beings.

George’s conjugal view makes penis-in-vagina* a necessary condition of marriage, but in the last few centuries of Western civilization, how many couples have had to provide legal proof of that?   If an ordinary married couple stops having sex, or never has sex to begin with, that can be cause for divorce or annulment if one of the partners is unhappy with the situation. But if neither complains, the government doesn’t intrude by invalidating the marriage against the couple’s wishes.  How far back in history do we have to go to find the government demanding proof of penis-in-vagina before recognizing the marriage of two 80-year-old ordinary citizens? That’s how far back we have to go in order to consider George’s “revisionist” view a true revision.

Really, George should use “procreative view” (or “penis-in-vagina view”) instead of “conjugal view” and “common” in place of “revised.”

Perhaps this bickering over terminology seems trivial, but again and again we’ll see George using arguments that assume — and ask you to assume — his conclusion is true. Let’s not allow that.

I’ll stop here for now. George’s article relies heavily on this distinction between the conjugal/procreative view and the revisionist/common view.  We’ll be coming back to it frequently, so it deserved its own entry.

Next:  George takes a detour into bans on interracial marriage and thoroughly confuses the meaning of “discrimination.”

* Unfortunately, crude as it sounds, you’ll be seeing this penis-in-vagina phrase quite a bit in these entries.  George prefers to call this interaction a reproductive, or generative, or procreative act.  That breaks down, though, when he speaks of infertile opposite-sexers, whom he believes can still have a “real” marriage.  For their sake, he sometimes uses the phrase procreative-type act.

But I can only see a procreative-type act as the type of act that leads to procreation, and for infertile couples no type of act leads to procreation. George is manhandling the English language, trying to keep infertile couples in the procreation tent by inventing terms with no coherent meaning.  I don’t want to abet him in that effort, so I’ll use the more accurate phrase, penis-in-vagina.

Priya Lynn

February 10th, 2011

I agree, the phrase penis in vagina correctly describes what George calls a procreative act or organic body union.

Guffey

February 10th, 2011

Is there no other way you can describe it? It may be physically and descriptively true (penis-in-vagina) but it starts to sound like you’re competing to be Matt Barber’s counterpart (penis-in-lower-intestine) by going down to the physical act. I can read it and understand, but it starts to lose me because it captures focus, the same way saying FUCK! in the middle of a statement tends to capture focus. Am I making any sense?

Anyway, just a thought… but I’m really enjoying reading your series, Rob.

Pender

February 10th, 2011

This is a marvelous post, from start to finish. Thank you, Rob.

TampaZeke

February 10th, 2011

“Begging the question” 101!

So many people misuse the phrase “begging the question” or “begs the question”. For those who don’t know what it really means, read this man’s argument. It’s a case study in the fallacious rhetorical tactic of begging the question.

MarcusT

February 10th, 2011

Question – I just looked at the original article and it lists three authors. Is there a reason you’re singling out Robert George – is he known to have done most of the writing?

Steve in MI

February 10th, 2011

@Rob – some of your target audience may indeed find the “penis-in-vagina” term squicky. Maybe it would be more gentle to use the abbreviation “PIV”, with an asterisked/footnoted definition?

I hesitate to pander to the prudish, but some of them may be the target audience for this; you’d hate to have them stop reading just because they have a problem with the “p-word”….

And if you do use this suggestion for the remaining articles – and for the compilation book on which you’ll make your next million – all I ask is that you send me a signed advance copy. Or at least think about how nice it would be if you had. :)

David in Houston

February 10th, 2011

It’s very apparent that Mr. George reverse-engineered his argument to ensure that infertile straight couples can still be included in marriage, but gay couples can’t. The ONLY possible way to do this is to say that marriage = penis/vagina sex, regardless if the couple ever procreate.

Unfortunately for Robert, the overwhelming majority of society doesn’t view marriage as a simple sex act, nor should they. The only audience that believes what he has to say, already holds the same view that he’s offering up. That is to say, his verbal gymnastics aren’t going to win over any converts.

Steve in MI

February 10th, 2011

oh, and because I didn’t say it a minute ago… GREAT series. Thank you for your writing on this!

Priya Lynn

February 10th, 2011

Tampazeke said ““Begging the question” 101!

So many people misuse the phrase “begging the question” or “begs the question”. For those who don’t know what it really means, read this man’s argument. It’s a case study in the fallacious rhetorical tactic of begging the question.”.

Right Tampazeke, one of my pet peeves. Many people use the phrase “begging the question” when they mean something “raises the question”. Begging the question means making a statement or asking a question that assumes your argument is true without proof. For example:

“Have you stopped beating your wife?”

“There are two competing views of marriage, the “conjugal” view and the “revisionist” view.”

CPT_Doom

February 10th, 2011

What I find really fascinating is that George, at least from your analysis, is ignoring, probably deliberately, the real revolution in marriage that results in his “revisionist” viewpoint:

Revisionist View: Marriage is the union of two people … who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds,…

The revolution that converted marriage from a mere property transfer (father to husband, with dowry, of course) and family issue (e.g., to join families to political, social or financial advantage and provide heirs to continue those family lines) to one of romantic love and choice by the partners in marriage was a result of the Enlightenment.

I am a big Jane Austen fan and the issues of romantic love and marriage vs. marriage as a means to a social/political/financial union are expressed throughout her writings, which are from the late 1700s and early 1800s. Not only in Sense and Sensibility, where the two main sisters represent the two arguments – and ironically end up in marriages that are opposite of the arguments they favor, but also in Pride and Prejudice, where the plain and poor Charlotte Lucas expreses a completely non-romantic view of marriage and ends up in a socially advantageous relationship with a horrible man, and Mansfield Park, in which Fannie is nearly browbeaten by her wealthy relatives to accept a proposal from a wealthy suitor she finds morally defective.

It was in this period that marriage truly changed, and were George and his compatriots honest about the evolution of marriage, would make a fascinating analytical model for today’s equality in marriage movement.

grendel

February 10th, 2011

Nice thought provoking analysis so far. Thanks.

I agree that George is seriously torturing language to include infertile couples in the “procreative acts” camp. But I think the problem goes further. What about couples who simply cannot engage in PIV sex, either through injury, paralysis, loss of limb (sorry) or whatever. Under current law two people can marry if they have no hope of ever consummating the marriage (so long as they both know that going in to the marriage, otherwise it’s voidable). But to take George’s argument seriously, it would seem he has to argue those people should not be allowed to marry at all. Either that or he has to broaden his definition of procreative act to include non-acts. Which would really be torturing language.

Amicus

February 10th, 2011

I like the diagrams.

I think more could be done with them. What a great expository device!

“Stacking the deck” could be an important legal consideration, too.

To play devil’s advocate, the answer to “which ones?” is “the ideal ones”.

MarcusT

February 10th, 2011

Actually, I think “penis-in-vagina” perfectly espouses the actual crudeness/ludicrousness of the paper’s obsession with PIV sex, stripped of its quasi-scientific verbiage.

I mean, it’s icky, but it’s really not any less icky in the original.

Ben in Oakland

February 10th, 2011

I wish I had more time to write and do the research on what I have written before, but I don’t.

George’s arguments in this case are just another way of saying that gay people are trying to redefine marriage for everyone. Of course that isn’t true, and when I have some more time to do so, I will do that writing. but so far, there is this that I wrote a month ago, and which is another way of expressing what Rob said with his Venn diagrams.

A commenter wrote this:”Allowing gay couples to marry doesn’t change the definition of marriage — heteros can marry as they always have. It merely expands access to marriage.”

I wrote back: “The most cogent statement on the subject that I have read. I’ve said many things that were similar and making that point, but that summed it up. Allow me to expand it a bit further….

Allowing gay couples to marry does not change the definition of marriage — heteros can marry just as they always have, to the opposite gender person of their choice. It does not affect and has never affected, in any way demonstrable by logic, fact, or experience, and in any jurisdiction where it is legal, the rights, status, and responsibilities of any heterosexual marriage. It merely expands access to marriage.

However, those anti-gay (alleged) heterosexuals and churches can continue to define, to their hearts delight, marriage as God given,sanctified, and hetero. They can continue to deny our marriages as being real, or our families, faiths, and loves as real and every bit as important as theirs. They can exclude and shun us all they wish, and tell everyone that according to their religious beliefs, our marriages and families are counterfeit.

No problem. Stupid, wrongheaded, and bigoted, small-minded, ignorant, and ultimately on the wrong side of history. But no problem.

BECAUSE IT AIN’T ABOUT YOU, YOUR RELIGION, OR WHAT YOU “THINK”.

It is about how our government treats us,and our freedom of religion, our equality before the law.

A second issue that George keeps bringing up, though he doesn’t say it often in so many words, is the alleged, but otherwise wholly imaginary, superiority of PIV over non-PIV. It is superior if you want to make a baby as a result of sexual activity, but that assumes that people have and OUGHT ONLY TO Have, sex for one reason. That is also wholly imaginary.

Finally, who is REALLY trying to re-define marriage? I have seen almost nothing in my life to refute the idea of gay people as the ultimate scapegoats. It’s funny how it works. straight people behave badly– divorce, family abuse and abandonment, adultery,
sexual abuse of children, illegitimacy– and gay people get the blame. Our marriages are the threat to traditional PIV marriage– we see it EVERYWHERE in the marriage battles– by some mysterious process known only to the underpants gnomes.

This is where George is trying to re-define it. Marriage is everything he says it is, but even from the 300 year old cultural and legal perspective from which he operates, as rob has demonstrated already, it is also quite a bit more.

Marriage is an easily obtainable and relatively inexpensive contract which lays out a legal set of responsibilities, obligations, rights, and benefits. There is no requirement for sex, piv or otherwise, reproduction, good parenthood, qualified parenthood, or death-do-us-part. In fact, as Rob has pointed out elsewhere, there are laws in this country, which have been “traditional” (oh, the irony!!!), which specify precisely that you may NOT be able reproduce in order to get married.

And one of the things it has been for centuries, and which George is downplaying because it completely undercuts his argument, is that marriage is ALSO the MAIN LEGAL MEANS BY WHICH A NEW FAMILY IS CREATED. Another is adoption. You create a family with a 10 year old girl by adopting her, not by marrying her, one of the two reasons (the other is age of consent and contracts) why marriage equality will not lead to child marriage. You can’t marry your sister not only because of incest and bad seed issues, but because you already are legally defined as family. If you’re not married, your sister may be your next of kin and make end-of-life decisions for you, even if you hate her and haven’t spoken to her in 40 years.

I will agree with George that family is the building block of society– a group of people who care for and support each other. So then, the real questions become:

1) if families are building blocks, why are gay families, especially those with children– 70,000 children in California alone– excluded? Why do not those products of reproduction deserve the protection that having married parents wil give them? How does deny them this do anything to strengthen any hetero-based family?

2) Why are gay people denied that inexpensive, easily obtainable and universally understood contract when they wish to say: this is my family? How does having that contract available affect other people who also have that contract?

3) what social good is served by preventing the building block of society from forming, especially when any man and woman who met five minutes ago, and have enough alcohol in them to think it is a good idea, can get married? And they can reproduce with no more thought than they gave to getting married. It is not licensed or regulated. and they can get divorced as often as they wish, children or no.

4) Reproduction may be the goal of marriage, from George’s perspective. However, any man and any woman who are physically capable of it can reproduce without marriage. In fact, some communities are plagued by generations of children having children, of women and men fathering and mothering children by different opposite sexed parents, with the concomitant destruction of real families in those communities.

So, I ended up writing after all. And I gotta stop. Rob– good idea to take this on. I hope I have some time to write in the next day or two.

From my preliminary perusal, I can make a couple of quick comments. First, the minute one goes on to natural law as a justification for anything, the further you get away from actual natural law. In the realm of what we know, Natural law appears to BE law only when it is applied to basic physical and chemical laws. They are as rigid as they can be, even within the realms of quantum mechanics, the very realm of uncertainty. As you go up the scale from the physical sciences into life sciences, natural law becomes less and less rigid, and more and more a matter of statistics. when you enter the realm of the social sciences, data variation is huge, and the only real laws are statistical in nature. You cannot predict the outcome of any interaction, only the statistical likelihood of a number of outcomes.

A second big point is the confusion of ‘natural law” whatever that may be, with morality. Someone once told me this is something like slavery in the US – the laws permitted slavery, but slavery is clearly immoral, and thus the laws permitting slavery were not true laws at all. this what George would probably say, except that it lacks any kind of historical perspective. Slavery was not just supported by the Constitution. It was supported for hundreds of years by large numbers of churches, a number of Christian nations (Spain, Portugal, Brazil, England, France, and the good old US of A) and large numbers of church-going individuals as God’s will. Likewise, the burning of witches. Likewise, the Inquisition. All OK according to the laws of God and man, so we were told.

I acknowledge that there is a law according to the nature of things. The laws of physics, chemistry, biology, you name it. But human laws are not natural laws in that sense. Natural is a word applied to them in an attempt to make them not what they clearly are– human inventions. Homophobia and prejudice and bigotry have no genetic basis, and are also not a part of natural law, but they are a part of nature. Human nature.

There is no homosexual gene, true. But there is no heterosexual gene, either. This is where George is using “natural” to mean “this is what I think and it seems right to me.” It is natural to think that the world is flat, but it isn’t. Homosexuality is natural, and it has always existed in every culture and every time.

Despite overwhelming scientific evidence that homosexuality is an inborn as heterosexuality, despite the testimony of tens of thousands– if not millions– of gay people, despite the simple logic of “who would choose this”, George believes that homosexuality is a choice– an immoral one that should get no legal support. His beliefs about us are more important than any amount of actual evidence– natural evidence.

A moralizing moralist said this to me: “Either you are going to acknowledge that there is a law according to the nature of things, or you are going to be a legal positivist which leads to the conclusion that slavery is okay, or abortion on demand is okay, or gay marriage is okay, or discrimination against and imprisonment of people of Catholic or Mormon faith for speaking and living their beliefs is okay simply because the laws say it is.”

This is a false dichotomy, irrelevant and illogical. I don’t have to be a religionist to know that slavery is wrong, or discrimination is wrong. I can be a perfectly moral human being without religion to tell me what is right and wrong. And as far as I can tell, if I relied on religion to tell me that, I would be most immoral indeed. In the immortal words of Mammy Yokum (and yes, I’m showing my age): “Good is better than evil because it’s nicer.’

Very little is black and white. Abortion is a good example here. I’m not fond of it. To me, the moral position is not to eliminate abortion, but to eliminate the need for it. Equally immoral is people bringing more people into the world when they neither want them nor can provide for them. Immoral is back alley abortions that occur because legal abortion is not available. Women pay the price. Immoral is spending literally billions of dollars to rob women of that choice, yet somehow never actually doing anything about abortion. The anti-abortion industry, like the anti-ex-gay industry, is a major cash and power cow for the religious right. How many children died in Darfur while the Mormon church was fighting my civil marriage? how many children could have been fed and immunized for that money on an issue which has absolutely no effect on any Mormon’s ability to worship and believe as he chooses? How many abortions could have been avoided if the Religious right and the catholic church supported birth control? How many could have been avoided if these so called defenders of right said simply, and put up the money for it: “don’t have an abortion. We’ll take care of you and your medical expenses, and make sure your baby is adopted into a loving home. except not the gay ones, of course. Those children are better of as products of abortion.”

Mr George, do you really want to talk about immorality? I don’t think you have a moral leg to stand on.

Here’s some natural law, some morality for you, and you can decide which is worse. I’m sick to death that the course of my life, and my happiness, and those of millions of people just like me, can be subject to your prejudices, whether or you prefer to call them your religious beliefs or just admit them for what they are. I am equally sick that gay people are imprisoned, attacked, murdered, executed, used as political fodder, vilified, condemned, persecuted, jailed, slandered, libeled, and accused of all sort of things that are simply NOT TRUE because someone doesn’t approve, or believes their God does not approve. What about the immorality of what is done to gay people every day in many parts of the world to satisfy that belief?

As I wrote earlier: “Homophobia and prejudice and bigotry have no genetic basis, and are also not a part of natural law, but they are a part of nature. Human nature.”

That doesn’t make them right. It just makes them sad.

________________________________

I wish I had more time to write and do the research on what I have written before, but I don’t.

George’s arguments in this case are just another way of saying that gay people are trying to redefine marriage for everyone. Of course that isn’t true, and when I have some more time to do so, I will do that writing. but so far, there is this that I wrote a month ago, and which is another way of expressing what Rob said with his Venn diagrams.

A commenter wrote this:”Allowing gay couples to marry doesn’t change the definition of marriage — heteros can marry as they always have. It merely expands access to marriage.”

UI wrote back: The most cogent statement on the subject that I have read. I’ve said many things that were similar and making that point, but that summed it up. Allow me to expand it a bit further….

Allowing gay couples to marry does not change the definition of marriage — heteros can marry just as they always have, to the opposite gender person of their choice. It does not affect and has never affected, in any way demonstrable by logic, fact, or experience, and in any jurisdiction where it is legal, the rights, status, and responsibilities of any heterosexual marriage. It merely expands access to marriage.

However, those anti-gay heterosexuals (alleged) and churches can continue to define, to their hearts delight, marriage as God given,sanctified, and hetero. They can continue to deny our marriages as being real, or our families, faiths, and loves as real and every bit as important as theirs. They can exclude and shun us all they wish, and tell everyone that according to their religious beliefs, our marriages and families are counterfeit.

No problem. Stupid, wrongheaded, and bigoted, small-minded, ignorant, and ultimately on the wrong side of history. But no problem.

BECAUSE IT AIN’T ABOUT YOU, YOUR RELIGION, OR WHAT YOU “THINK”.

It is about how our government treats us,and our freedom of religion, our equality before the law.

A second issue that George keeps bringing up, though he doesn’t say it often in so many words, is the alleged, but otherwise wholly imaginary, superiority of PIV over non-PIV. It is superior if you want to make a baby as a result of sexual activity, but that assumes that people have and OUGHT ONLY TO Have, sex for one reason. That is also wholly imaginary.

Finally, who is REALLY trying to re-define marriage? I have seen almost nothing in my life to refute the idea of gay people as the ultimate scapegoats. It’s funny how it works. straight people behave badly– divorce, family abuse and abandonment, adultery,
sexual abuse of children, illegitimacy– and gay people get the blame. Our marriages are the threat to traditional PIV marriage– we see it EVERYWHERE in the marriage battles– by some mysterious process known only to the underpants gnomes.

This is where George is trying to re-define it. Marriage is everything he says it is, but even from the 300 year old cultural and legal perspective from which he operates, as rob has demonstrated already, it is also quite a bit more.

Marriage is an easily obtainable and relatively inexpensive contract which lays out a legal set of responsibilities, obligations, rights, and benefits. There is no requirement for sex, piv or otherwise, reproduction, good parenthood, qualified parenthood, or death-do-us-part.
In fact, as Rob has pointed out elsewhere, there are laws in this country, which have been “traditional” (oh, the irony!!!), which specify precisely that you may NOT be able reproduce in order to get married.

And one of the things it has been for centuries, and which George is downplaying because it completely undercuts his argument, is that marriage is ALSO the MAIN LEGAL MEANS BY WHICH A NEW FAMILY IS CREATED. Another is adoption. You create a family with a 10 year old girl by adopting her, not by marrying her, one of the two reasons (the other is age of consent and contracts) why marriage equality will not lead to child marriage. You can’t marry your sister not only because of incest and bad seed issues, but because you already are legally defined as family. If you’re not married, your sister may be your next of kin and make end-of-life decisions for you, even if you hate her and haven’t spoken to her in 40 years.

I will agree with George that family is the building block of society– a group of people who care for and support each other. So then, the real questions become:

1) if families are building blocks, why are gay families, especially those with children– 70,000 children in California alone– excluded?

2) Why are gay people denied that inexpensive, easily obtainable and universally understood contract when they wish to say: this is my family?

3) what social good is served by preventing the building block of society from forming, especially when any man and woman who met five minutes ago, and have enough alcohol in them to think it is a good idea, can get married? And they can reproduce with no more thought than they gave to getting married. It is not licensed or regulated

4) Reproduction may be the goal of marriage, from George’s perspective. However, any man and any woman who are physically capable of it can reproduce without marriage. In fact, some communities are plagued by generations of children having children, of women and men fathering and mothering children by different opposite sexed parents, with the concomitant destruction of real families in those communities.

So, I ended up writing after all. Oh, well. I hope it is useful.
Oh, well, I hope it is useful
.

Ben in Oakland

February 10th, 2011

ack. sorry. a triple posting. Editor, are you out there? Everything above the long separating line has to go.

Neil

February 10th, 2011

I would also like to express a preference for penis in vagina, terminologically speaking. It seems to be a plug-socket obsession with conservatives that focuses so frequently on anal sex between men, as if sex is necessarily always a “procreative-type” act. I suspect the absence of obvious plug-socket business in lesbian sexuality explains why the same conservatives treat female homosexuality as virtually invisible.

You could have a field day with all this obsessing over confining legal sanction to the penetration of one penis into one vagina. In fact, it seems like that’s what George has invited us to do and Rob has taken up the invitation.

Ben in Oakland

February 10th, 2011

And i keep forgetting to add, in the redefining department, where else George is himself re-defining marriage.

To the best of my knowledge, and apart from the specific laws above that Rob cited, is there any requirement that a man-woman couple have PIV sex. I say man-woman couple becuase it is NOT required that they be heterosexual, only male and female. PIV is assumed to be there, but it is not required,and if it hasn’t and occurred and can’t, it is grounds for annullment. It doesn’t come up until that moment someone tries to END the marriage.

I doubt george is recommending the formation of a posse comitaus to inspect the marriage beds of every opposite-married couple. But by insisting that this is what marriage is about– WHEN IT CLEARLY IN REALITY IS NOT (except for the obvious exception when gay people want marriage equality)

nor is it required that they procreate, nor has it EVER been required. Even the catholic church, during the nuptial mass, refers to child-having as “when God wills it.”

George is the one doing the re-defining here. Heteros behave bvadly and then blame gay people.

Reed B

February 10th, 2011

OK – the “penis-in-vagina” term is accurate, and perfectly expresses the “breeder supremacist” view George espouses.

So “misuse of jargon” and “euphemistic language” errors are also threaded through this mess.

And, yes, “begging the question/circular logic” fallacies are the undergirding.

Edwin

February 10th, 2011

This George charcter must wear hip boots when he gives a speech. From what i have read is he is full of S**t and has a nasty attitude of all people.
I wonder what caused all those divorces to happen before they had us to blame.
Good article Rob.

Désirée

February 11th, 2011

I would like to add my voice to the chorus of keeping the “penis in vagina” terminology as I find it perfectly describes what George is talking about, stripped of obfuscating language (“Organic bodily union”? really?) It’s isn’t about reproduction, as much as he’d like to claim otherwise. It’s about claiming that because penises fit in vaginas, then penis-in-vagina couples can get married. The rest is all fancy language and circular reasoning as you have so well described.

I must say, after your initial trepidation at taking on George et al, I was worried that this wasn’t going to be as philosophically and intellectually rigorous as it needed to be, but I have been amazed so far at the philosophical heft of what you have written so far.

Mine only caution would be not attack the idea of a philosophical argument from principles as opposed to from practical experience. A principled argument beats a practical one in an intellectual debate every time. Philosophy is all about principles. Rather than argue empirically that what you witness doesn’t match his principles, argue that your principles are correct whereas his are not.

I look forward to the rest of this series.

Adam

February 11th, 2011

I’m not sure I understand this aversion to the phrase “penis-in-vagina”. It’s a clinical, accurate and anatomical description. It seems unusually sensitive to object to such straightforward terminology, especially when it serves to frame in its proper context the only argument that this bigoted “intellectual heavyweight” can summon to support his position. I say keep it.

And Désirée, those two approaches are not, in my opinion, necessarily opposed (notwithstanding my virtually absolute philosophical naïveté). It should be a principle that public policy be based on the way that real people live and experience their lives, as opposed to a principle that public policy be based on some ideal – Platonic, if you will – person or family to whose properties we should all aspire but can never attain. We are talking here, after all, about the effect of the exercise of governmental power over the lives of real, not perfect-in-principle, people.

Also, Rob, I’d like to add my voice to others and say that I am enjoying the series very much, and look forward to the future posts and comments.

Désirée

February 11th, 2011

being principled doesn’t require being Platonic. Realist philosophers (as opposed to existentialists)(i.e. followers of Aristotle) will tell you that principles apply to reality and that policy that violates principles is bad policy regardless of how it may or may not work in reality. A supporter of principles will tell you that abandoning principles in order to be pragmatic (to match up with what they see as reality) is utilitarianism, which allows for all sorts of behavior that may or may not be good or moral.
There can be no moral grounding once you abandon principles other than “whatever works best for me in this moment is moral.”

And don’t think that we aren’t dealing with morals. We all have a moral framework, whether it be from religion or society or our own conscious. The argument here isn’t that George using morality, but that the basis for his morals is false. Our side is making a moral argument as much as George is. Morals simple mean some actions are right and some are wrong (and some are neither).

Of course, determining what is right or wrong requires a value judgment, which brings us all the way down to the classic is-ought dilemma. Which loops us around to how to attack George’s argument – not by putting pragmatism (or as Rob says Empiricism) up against Principles, but showing how our principles have a better basis than George’s.

Donny D.

February 11th, 2011

Rob and everybody, instead of “penis-in-vagina”, why not use coitus and coital?

Désirée

February 11th, 2011

I used penis in vagina beacuse that is what it is. The whole point was to strip away the fancy language and lay bare exactly what George is talking about. If it makes people uncomfortable, good. People need to be fully cognizant of the fact that George’s argument is based almost entirely on sex, heterosexual sex at that. Any other term, be it his intellectual sounding “organic body union” or the more clinical “coitus” allows people to distance themselves from the concept. “It’s not fucking. It’s coitus” or “We aren’t banging each other, we’re having an organic body union.” It makes the act into something it’s not.

Penis-in-vagina is blunt and it perfectly encapsulates what George is saying, and allows others to recognize that is all George is really talking about. Not some higher plane, not some metaphorical union. Just penis-in-vagina sex.

cbjames

February 11th, 2011

I’d like to suggest that you reverse the labels on your second diagram. What is proposed as a “revisionist” view is entirely contained withion the “traditional” framework.

There is nothing that “revisionists” are asking for which is not already a part of “traditional” marriage.

Adam

February 11th, 2011

Donny D. – what is so objectionable about the phrase that we ought to obscure meaning by hiding it behind a euphemism? As far as I can see, it’s perfectly descriptive without resorting to crude terms. I think people objecting to purely anatomical labels are investing the words with more meaning than they can reasonably bear, and such people ought to look at their reasons for doing so. If the contentious phrase was c*ck-in-c*nt (pre-bowdlerised for editorial policy, not personal prudishness ;p), I could see your point.

Désirée – Thanks for the clarification. I’m not sure at what point this argument becomes a semantic game, though. For me, “utilitarianism” is itself a principle, so it doesn’t make much sense to claim that the abandonment of principles leads to utilitarianism. Nevertheless, I understand and accept your central point that decisions ought to be based on a foundation of reasoned argument, and not one of pure pragmatism. I think my main problem with your original post was that it seemed to preclude consideration of the experiences and lives of real people, when such experiential matters are central to the question of what is right in respect of public policy. But of course I appreciate that you need the principles you speak of to determine what is right in the first place.

John W

February 11th, 2011

Rob, this series is like a good novel that I can’t put down. Very much looking forward to the next installment.

Désirée

February 11th, 2011

@Adam: I can understand where your confusion comes from. I probably didn’t explain myself as clearly as I could have. It’s been 10 years since I really participated in any formal or semi-formal philosophical debates.

I guess I come at it from the stand point that I don’t see a difference between theory and reality (or principles and reality if you wish). That is, if your theory doesn’t match reality, then your theory is incorrect. There is no such thing as “works in theory but not in reality.” So what I was trying to get at in regards to Rob’s essay was what I see as a false dichotomy between “principles” and “practical.”

This is a battle of principles. We will win based on principles. There is no need to abandon them in the name of practicality (or empiricism as Rob put it).

justsearching

February 11th, 2011

I vote for coitus or a less-used word, copula, in lieu of penis-in-vagina.

Désirée

February 11th, 2011

why an unknown word that even further obscures what is being talked about?

Ben in Oakland

February 11th, 2011

I have to agree with desiree, and for her reasons. It always boils down to the wholly imaignary superioirty of hetero over homo, because heteros do the penis in vagina thing and gay people don’t. George is trying to dress up homobigotry in its sunday-go-to-meetin’ drag.

cbjames– that was what I was saying in my post. Marriage equality (my generally preferred term) is not about changing the definition of marriag, but expanding access to it.

Priya Lynn

February 11th, 2011

Donny said “Rob and everybody, instead of “penis-in-vagina”, why not use coitus and coital?”.

Because those terms don’t make it clear that the basis of George’s argument is strictly penis in vagina. Coitus isn’t clearly and absolutely penis in vagina:

http://dictionary.reference.com/browse/coitus

Desiree saidd “being principled doesn’t require being Platonic. Realist philosophers (as opposed to existentialists)(i.e. followers of Aristotle) will tell you that principles apply to reality and that policy that violates principles is bad policy regardless of how it may or may not work in reality. A supporter of principles will tell you that abandoning principles in order to be pragmatic (to match up with what they see as reality) is utilitarianism, which allows for all sorts of behavior that may or may not be good or moral.”.

With all due respect, what a crock of sh*t. George didn’t go into all this plato BS, his piece was readily understandable by the average person and that’s who needs to be convinced and who will decide this issue. It might feel good to pat yourself on the back with this “ain’t I smart” BS but it does nothing but confuse the issue and lose the audience that is important.

Richard Rush

February 11th, 2011

As I understand, the only requirements to enter into a “traditional” marriage in the USA are generally:

1. One human penis AND (not IN) one human vagina.
2. The two candidates must be above a minimum age.
3. The two candidates must not be close blood relatives.

I think that’s it. Did I miss something?

Haven’t things such as George’s intellectual machinations on marriage only appeared since same-sex couples realized they should be entitled to marriage also?

Is there any documented record of George being a “deep thinker” about marriage prior to same-sex inclusion becoming a national issue?

Désirée

February 11th, 2011

Priya – I disagree. George did base his argument on Platonic ideas. He may not have stated it outright, but it’s there. This isn’t about trying to look smart. This is about reducing the oppositions argument to its basic philosophical base and showing how that base is flawed. If you read the rebuttals to the replies written about the original argument, George expects philosophical arguments. Anything less will be summarily dismissed.

Philosophy matters. Please don’t dismiss it before you think it may go over peoples’ heads.

Donny D.

February 11th, 2011

Adam wrote:
“Donny D. – what is so objectionable about the phrase that we ought to obscure meaning by hiding it behind a euphemism?”

Coitus isn’t a euphemism. It explicitly means heterosexual vaginal intercourse with a living, bodily-attached penis used as the instrument of penetration. (It’s more specific than “penis-in-vagina” (which could mean a penis that just sits in a vagina, or is just put in once and taken right out again).)

Priya Lynn wrote:
“Coitus isn’t clearly and absolutely penis in vagina:

“http://dictionary.reference.com/browse/coitus”

It actually is. You picked a poor definition of it as an example.

Free online dictionaries are all pretty bad, but here’s a barely adequate definition of coitus:

http://wordnetweb.princeton.edu/perl/webwn?s=coitus

It may feel good to use a blunt-looking term, even if it’s clunky, or maybe because due to its clunkiness it can’t be read smoothly past, but what feels good isn’t necessarily what will work well if you’re trying to communicate with the kind of people who care what’s in The Harvard Journal of Law and Public Policy where Dr. George’s essay was published.

Here’s what Rob T. wrote in his first article in this series:

“4. I could use your help. Robert George is the McCormick Professor of Jurisprudence at Princeton University and I’m…not. I’d like to pull these rebuttal posts into a single downloadable file, something that would benefit from your insights and corrections to this series of posts.”

I can assure you that whether or not you’ve ever seen the words coitus and coital before, the kind of people who made Dr. George’s essay the most downloaded paper of the past year at the Social Science Research Network are very aware of them. Some viable synonyms are “vaginal intercourse” and “copulation”. (My significant other just informed me that coitus is the most specific and accurate of the three. I still can’t find my paper dictionary….)

Consider that to some, “penis-in-vagina” won’t seem daring, explicit or anti-puritanical, but will appear linguistically inept.

I don’t want to divert this thread to talking about just about this, because this by far isn’t the most important thing to be discussed in regard to responding to Dr. George’s article. I did want to say, though, that the words used in an argument can affect how seriously the argument is regarded. I mean, how many of you weren’t laughing by the time you got to the 10th occurrence of the George’s “organic bodily union”?
:)

Adam

February 11th, 2011

Donny D. – As we’re quoting definitions, here’s one from the Random House Dictionary (although admittedly my source for it was a free online dictionary, which presumably means it’s pretty bad?):

euphemism: the substitution of a mild, indirect, or vague expression for one thought to be offensive, harsh, or blunt.

My impression was that people are suggesting that Rob substitute something for the phrase “penis-in-vagina” because the latter is considered offensive or blunt, not because it is considered inaccurate. That was the context of the comments previous to yours. I see that your original post is ambiguous as to why you think “penis-in-vagina” should be replaced with something else, and I apologise if I misinterpreted the reason for your suggestion.

If your question was not meant rhetorically, then the reason that I think Rob should continue to use the blunt phrase is because it is blunt, and it draws attention to the paucity of the content of the argument using the process as its main support. In addition, only the truly perverse could misconstrue it to mean anything other than penile / vaginal penetrative sexual intercourse, especially given the fact that I doubt the phrase “penis-in-vagina” is ever going to be used so devoid of context that it will not be patently obvious what it means.

The approach of stripping away the academic-sounding language – without compromising on the quality of argument – robs George’s article of some of its superficial intellectualism. Using a phrase like “coitus”, while being technically correct (by some definitions), does not have this strength.

Let’s try it from a different angle. This is Rob’s project, so I suppose he should be allowed the freedom to determine its artistic direction. What reason do you give suggesting that Rob use a phrase other than “penis-in-vagina” in the sense he has demonstrated his intention to use it?

One thing I agree with you on, however, is that this is almost totally irrelevant to wider points being made. I have a severe case of SIWOTI syndrome, though, so please forgive my pettifogging.

Throbert McGee

February 11th, 2011

I vote for coitus or a less-used word, copula, in lieu of penis-in-vagina.

Hmmm, I wasn’t aware that “copula” had any current meaning outside of linguistics and grammar. (In the English sentence “Mary is a student”, the verb “is” is the copula; in the Russian equivalent “Mariya — studentka“, there’s no explicit verb and the em-dash serves as the copula.)

P.S. Okay, wikipedia also has meanings for “copula” in statistics and in music theory — but not in any sexual sense.

Throbert McGee

February 11th, 2011

Haven’t things such as George’s intellectual machinations on marriage only appeared since same-sex couples realized they should be entitled to marriage also?

I don’t know George’s personal history of ruminating on this topic, but I know that arguments similar to George’s have been put forth at least since 1965’s Griswold v. Connecticut (i.e., the SCOTUS case about the legality of contraceptives).

After a short Google, I find that Pope Pius XI’s 1930 encyclical Casti Connubii forbade artificial contraception on the grounds that marital sex must be “subordinated to the primary end and… the intrinsic nature of the act [must be] preserved”. Paul VI’s more famous Humanae Vitae in 1968 reiterated these arguments about the procreative “meaning” of marital sex.

So anyway, some of what George is saying now in the SSM controversy is a rehash of arguments that were previously made back when the freedom of heterosexuals to obtain contraceptives was still a matter for public-policy debate.

Ben in Oakland

February 11th, 2011

“So anyway, some of what George is saying now in the SSM controversy is a rehash of arguments that were previously made back when the freedom of heterosexuals to obtain contraceptives was still a matter for public-policy debate.”

and that is a most important point.

Ben in Oakland

February 11th, 2011

Damn, hit post.

It is a most important point simply becuase it shows that the definition of the essense of marriage has quite indeed changed. and people like george are trying to lead it backwards.

Richard Rush

February 11th, 2011

So anyway, some of what George is saying now in the SSM controversy is a rehash of arguments that were previously made back when the freedom of heterosexuals to obtain contraceptives was still a matter for public-policy debate.

So, once again, it seems as though the only time people do “deep thinking” about marriage is when they are trying to deny freedom to others.

Throbert McGee

February 11th, 2011

So, once again, it seems as though the only time people do “deep thinking” about marriage is when they are trying to deny freedom to others.

Well… I’m not sure that the current SSM debate is as clearly about liberty or its denial as Griswold v. Connecticut was.

For that matter, Bowers v. Hardwick and Lawrence v. Texas were definitely about freedom, and so were Pace v. Alabama and McLaughlin v. Florida (both dealing with interracial sex) and Loving v. Virginia (which decriminalized interracial marriage).

In contrast, the SSM debate may be (depending on how you look at it) either about a right to equal treatment, or about whether same-sex couples have a right to any level of legal recognition at all. But our basic Freedom to live openly as couples without interference from the state, and without the taint of being nominal “criminals” has already been affirmed by Lawrence.

P.S. If you’re not familiar with the Pace and McLaughlin SCOTUS cases about miscegenation laws, here it is in a nutshell:

Pace : McLaughlin :: Bowers : Lawrence

(In each pair, the first case upheld the constitutionality of a certain “Victimless Sex Crime” law, and the second case later reversed that opinion. Mind you, it took 80 years for Pace to be reversed, but under 20 years for Bowers — so the US has definitely made cultural progress!)

Eric in Oakland

February 11th, 2011

Previous posters have said: “To the best of my knowledge, and apart from the specific laws above that Rob cited, is there any requirement that a man-woman couple have PIV sex. I say man-woman couple becuase it is NOT required that they be heterosexual, only male and female.” and
“1. One human penis AND (not IN) one human vagina.
2. The two candidates must be above a minimum age.
3. The two candidates must not be close blood relatives.”

Actually, current laws do not require that the male spouse has a penis, just that he is legally a male (ex. on the birth certificate). It may be uncommon, but there are valid (uncontested) marriages where the male spouse does not have a penis, due to injury, birth defect, or other cause. The same is true if a woman has had a hysterectomy, clitorodectomy, or other procedure or injury.

Also, current laws may not explicitly state that a male/female couple must be heterosexual to be married, but in practice it is often enforced as if that were an implicit requirement. Just look at immigration law to see this in action. A male/female couple who are married are not considered “legally” married for immigration purposes if they are not a heterosexual couple.

One other thing I would like to add. I think that George’s use of the term “revisionist view” is a deliberate attempt to poison the well. You should add this to his list of logical fallacies. Historically, the view that marriage is defined by reproduction is actually a more recent revision than the view that it is a romantic union.

Throbert McGee

February 12th, 2011

Historically, the view that marriage is defined by reproduction is actually a more recent revision than the view that it is a romantic union.

For reals? Tell that to Anne Boleyn.

Throbert McGee

February 12th, 2011

Or for that matter, take the case of Abraham, Sarah, and Hagar…

Rob Tisinai

February 12th, 2011

@Throbert: Abraham, Sarah, and Hagar — incestuous polygamy, and at the very root of the Judeo-Christian tradition on which George builds his thinking. We’ll get to that.

cd

February 12th, 2011

So anyway, some of what George is saying now in the SSM controversy is a rehash of arguments that were previously made back when the freedom of heterosexuals to obtain contraceptives was still a matter for public-policy debate.

This stuff is all recyclings.

I’m willing to bet that there’s an old interracial marriage case or book somewhere that makes assertions that something similar to George’s “OBS” happens between monoracial couples but not interracial ones. And somewhere nearby in the literature of the time there will be a clear refutation of it.

Jay

February 12th, 2011

Rob,
Great article!!! For those of us who are not schooled in logic or whathaveyou, it’s great to have it explained!

Joe Guy

February 13th, 2011

Outstanding Article Rob – however, I did want to add that besides your well thought out counter point /proof that his personal points are illogical, perhaps even more important when scrutinized are those points held up to a legal magnifying glass.

You might remember the name Therese M Stewart, Chief deputy attorney for the City of San Francisco who testitfied before the Ninth Circuit Court of Appeals regarding Californi’s Prop 8. She legally destroyed this argument via California Law. And although this information is regarding California, at a high level, it is true in many states including my own.

Below is an Excerpt from the PLAINTIFF-INTERVENOR-APPELLEE
CITY AND COUNTY OF SAN FRANCISCO’S
RESPONSE BRIEF

http://www.ca9.uscourts.gov/datastore/general/2010/10/18/10-16696_answering_brief.pdf

California Treats Lesbian And Gay Parents Identically To
Heterosexual Parents.
Proponents contend that “only sexual relationships between men and women
can produce children” and thus that opposite-sex relationships implicate the
government ‘s interest in children “in a way, and to an extent, that other types of
relationships do not.” Brief at 77; see also id. at 82-83. If this were an accurate
account of California’s interests, one would expect that California laws governing
parentage and parent-child relationships would distinguish in at least some respects
between same-sex couples and opposite-sex couples. But they did not do so before
Proposition 8 was passed and they still do not.

As discussed supra in Section I, even after Proposition 8 the California
Constitution guarantees same-sex couples the right to form families and to have
and raise children within them on the same basis as opposite-sex couples.
California statutes further guarantee these rights. And when same-sex couples
have children, they have the same parental rights and obligations as any other
parent. Elisa B., 117 P.3d 660; K.M. v. E.G., 117 P.3d 673 (Cal. 2005); see also
Kristine H. v. Lisa R., 117 P.3d 690 (Cal. 2005).
Moreover, California’s parentage laws do not privilege heterosexual couples
or married couples in establishing parental rights and responsibilities. See Elisa B.,
117 P.3d at 664 (California adopted Uniform Parentage Act in part to eliminate
distinctions between children born to married and unmarried parents). Indeed, to
do so would be inconsistent with the California Constitution’s protection of the
autonomy of all persons in the realm of family matters, including decisions to have
and raise children. See Marriage Cases, 183 P.3d at 399, 418 n.27. And it would
be inconsistent with the overarching purpose of California’s parentage statutes: to
promote the welfare of all children whether they are born to a married couple or in
any other setting. Elisa B., 117 P.3d at 668-69. Toward that end, California law
does favor providing children with two legal parents and stable family
relationships. Id. at 669 (“[T]he Legislature implicitly recognized the value of
having two parents, rather than one, as a source of both emotional and financial
support.”); Kristine H., 117 P.3d at 696 . But to the extent the existence of a
marital relationship plays any role at all in matters relating to parenting, California
law treats the domestic partnerships of same-sex couples identically to marriage.
See supra Section I.A.

California law thus is flatly inconsistent with the idea that the State’s
interests in childbearing and childrearing are somehow different with respect to
opposite-sex and same-sex couples. It neither privileges nor burdens one type of
couple differently than the other when it comes to childbearing or parenting.

Timothy Kincaid

February 17th, 2011

Rob…

If you do get to Abraham and Sarah, you may want to consider other biblical heroes.

I once looked into a few examples of what we can learn about marriage from the Bible

Since I wrote that, I’ve also considered that Daniel (and Shadrach, Meshack, and Abednego) was a eunuch and that Joseph married the daughter of a pagan high priest. In fact, “traditional marriage” is nearly completely absent from the stories of Biblical Heroes.

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