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Reply to George: V. Can We Talk About “Real” Marriage?

Rob Tisinai

February 15th, 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.]

Pages 250-252: In which Robert George works hard to establish his right to talk about real marriage.

How real is “real marriage”?

Robert George wants to show “real marriage” is a meaningful concept. He’s got a good starting point: the fact that most “revisionists” think it’s wrong to ban same-sex marriage but are fine with banning other kinds, such as marriage with a child or marriage between brother and sister

Revisionists who arrive at this conclusion must accept at least three principles.

First, marriage is not a legal construct with totally malleable contours — not “just a contract.” In other words, it’s not merely whatever our laws claim it to be — otherwise, there’d be no basis for claiming marriage law is wrong and must be changed.

Second, the state is justified in recognizing only real marriages as marriages.

Third, there is no general right to marry the person you love, if this means a right to have any type of relationship that you desire recognized as marriage.

First: Marriage isn’t just whatever we say it is.

George has a point here. I just don’t like his reasoning. He’s saying if marriage is nothing more than a set of rules created by the government, then there’s no standard for what marriage law should be. And if there’s no standard, there’s no basis for saying current law is wrong.

But…no. Even if marriage were just whatever the government decrees (which I don’t believe), we could still appeal to more fundamental principles — like equal treatment under the law – to argue that marriage law must not discriminate against broad swaths of the citizenry for no good reason. So marriage can be “just a contract” and yet not have “totally malleable contours. “ It could still be possible for the law to “get marriage wrong.”

A philosophical digression (you can skip it if it’s not your bag)

George is arguing against nominalism here. Remember Plato and his notion that concepts like “horse” and “triangle” are perfect forms that exist in a higher realm that’s more real than our own? Nominalism goes to the opposite extreme. It holds that a term like human has no meaning, no reality, except as a name we use to designate all the individual humans we can think of (nominalism and name have the same linguistic root).

You know all that speculation about what makes humans human? About the essence of being human? Whether it our ability to reason, or plan, or laugh, or make tools, etc.?

Nominalists would have none of that. To them, individual human beings are real, but abstract concepts like human are not. Human is just a label, a tag with no meaning apart from those individuals. It’s just a handy collection of five letters that we use in our heads and in language to refer to all those individuals. There is no essence, no essential set of traits that make us human.

Nominalists would also say there’s no such thing as marriage — certainly no such thing as real marriage. Marriage is just an eight-letter tag that we use to describe the arrangements of all those individuals who call themselves married.

(Clearly, this simplifies a complex idea, one whose subtleties I don’t fully grasp myself. If you like this sort of thing, check it out by starting here and then going here).

I’m with George on this. I’m not a nominalist. George and his co-authors make this case against nominalism:

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.

And they sum it up even better here:

[T]wo 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.

I’d like to point out that this is not an objective analytical argument. It depends entirely on your own personal experience of friendship. But I find it convincing anyway.

Marriage is not just a word.

So is marriage “real” or is it just an arbitrary whatever-we-say-it-is? I bet most of us would say “real.” Maybe some activists are in the fight purely because they oppose any law that discriminates for no good reason, but I don’t know them. Marriage would have little emotional significance if it were in fact “just a contract,” like a catering agreement or a lease on a car.

Many (most?) gays and lesbians have been raised to view marriage as more than that, as something definite and real. Two men or two women find themselves in a relationship different from any other they’ve known, and say, “Yes, this person — this person! — is the one I want to marry.” Speaking just for myself, if it weren’t for that sense of reality, I wouldn’t find it so bewildering to be told my relationship doesn’t deserve that status.

But I don’t agree with George completely. Yes, marriage is real, but what does “real” mean? Remember that George is a Catholic natural law philosopher. He thinks we can reason our way to ethical and moral truth, but the conclusions have to match the church’s interpretation the Gospels. He’s committed to the idea that marriage was created by God for humans, and humans cannot change God. He may try to set that aside in his reasoning, but if he believes it he can’t truly abandon it. This puts him squarely back in a Platonic frame of mind, with ideal “form” called “marriage” that originates in a higher realm.

Meanwhile, I’m heading down Aristotle’s road: I would say marriage is real because human beings have created it. We’ve done it by trial and error over thousands of years. And if you want to find out what it is, ask the questions mentioned in my first post: let’s look at what people in this world call marriage, what led them to marry, and what they hope to achieve by marrying. Use that to define what marriage is.

This assumes, of course, that human beings have some commonality, some basic nature with basic needs we’re trying to fill. Marriage is not infinitely malleable because human nature isn’t, either. But marriage law does vary from place to place and time to time. First, because some aspects of marriage law simply depend on circumstance and may not be essential to marriage. Second, because human nature isn’t a narrow and obvious thing, so there are no narrow and obvious answers. And finally, because our understanding of human nature itself can change.

Thank God marriage has changed!

For instance: Our concept of human nature has changed in the past few centuries when it comes to women. When lawmakers stopped viewing women as fragile creatures, intellectually inferior, emotionally undependable, and helpless without male protection, that was a change in our view of human nature. And marriage changed accordingly. Coverture — the notion that married women are legally just an extension of their husbands, to whom they must submit in almost all ways (including rape and a good slap now and then) — disappeared. Men and women approached equality in marital law, and the government no longer enforced gender roles.

This created the possibility of same-sex marriage. As long as the law had one role for a man and a different role for a woman, marriage required a man and a woman. With that out of the way, though, what’s to prevent two men or two women from marrying? Mostly, it seems, another change in our view of human nature. People are more open to marriage equality if they view homosexuality as a healthy, normal (though perhaps unusual) facet of human nature — if they see that love and commitment between two men or two women can mirror that of an opposite-sex couple.

Unfortunately, our understanding of human nature is incomplete and contradictory. Marriage is real because it’s a human invention based on human nature, but it’s gone through constant tinkering as our ideas of what it means to be human constantly change. But that means we can still follow Aristotle’s lead and figure marriage out by searching for its common purpose (or common purposes, as it may b)e.

That’s a bit messy for George. He wouldn’t consider it “principled thinking.” And this is what I mean when I say we can’t let Robert George set the terms of the discussion. He’ll use careful logic to reason from as little evidence as possible. In fact, he’ll view this as a virtue. We can pick apart his reasoning to some degree, but we can also dispute pieces of his argument by asking, “Can he demonstrate this in reality? Does this fit my own experience? Does it match the facts of the world?”

Second, the state is justified in recognizing only real marriages as marriages.

No, this is wrong: “revisionists” don’t have to accept this point. I’m going to be picky here, just to show how George can sloppy in his thinking.

Strictly speaking, we could base our exclusion of incest and child-marriage on a different principle. For instance, that the government must accept any claim to marriage as valid unless there is a compelling public interest not to, and concerns about privacy rule out any government determination of whether a couple is fertile. (Sidenote: I’m tossing in that second reasonable restriction because George wants to know why “revisionists” don’t want to let infertile incestuous couples marry. Trust me, I’m coming back to that in a later entry.)

Now, I’m not comfortable with that principle, but it would do the job. It just shows how George draws conclusions that go way beyond what is warranted.

Actually, I can live with the second point, though perhaps not in the way George intends. George thinks that we can, with certainty, identify the core and essential features of marriage and confidently exclude any relationship that doesn’t meet the standard. I would say the question is more of a messy empirical investigation and the findings will be limited by our experience and our understanding of human nature. Certainty is a hard standard to meet, so we should only exclude people with great care and err on the side of inclusion.

Third, there is no general right to marry the person you love.

Finally, I agree with the third point, in my own way. A pedophile attracted only to children has no right to marry the little girl or boy of his choosing.

Okay, that’s it. All the throat-clearing is out of the way.

Next: George finally – finally! – explains why only a man and a woman can be married.

Comments

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Amicus
February 16th, 2011 | LINK

Well, I’ll jump in. What the heck. Why? Because it irks that George is doing apologetics when he introduces the term “real marriage”, rather than fair minded, top-notch analysis.

Is marriage just a legal construct? George says is cannot be for “revisionists”, because otherwise they paint themselves into a corner. In particular, he’s worried about excluding same-sex incestuous marriages. (No, I didn’t just make that up).

There are at least two ways to do proper analysis, I’d hazard.

First, yes, marriage can be thought of a legal construct, almost wholesale. Marriage can be thought of as a certain regulatory control of sexual expression, done by adults for adults. Notice that I deliberately excluded children and procreation. Marriage is simply the social-regulatory pattern by which societies pass along wealth and/or create preferred economic units, limit the highly destructive damage of jealousies, preference non-sexual activity over sexual conquest, and align the responsibilities of parents toward each other and toward ‘the common good’ (among other things, no doubt). Again, notice I deliberately said nothing about children or procreation. In short, it is not a recognition of a ‘fundamental human good’ at all, it’s just a time worn solution, imperfect, to serious problems. The same arguments, legal and moral, that exclude incestuous or polyamorous relationships for nongays would apply to gays – there is not ‘special difficulty’. Last, the law could be wrong. In ways that Rob pointed out above, but also in far more radical ways. For instance, historically, many societies have taken a far more communal approach to raising children. (I don’t write such things to shock, just to point out how thinly presented GGA are.)

Second, it’s obvious that there is a ‘natural law’ for gays. This is Koppleman’s point, in his response, perhaps.

If I’m right, then appealing to “What is marriage?” does not yield the either/or that GGA posit. In the first case, gays have a ‘fundamental right’ to participate, on the merits, and in the second, a ‘fundamental right’ to just expression.

But, let me outline _one_ approach to a ‘natural law’ for gays that is more acute, more a propos to GGA’s “real marriage”.

Gay relationships can and do have sexual completeness, for them, and, from that, we can gasp them as a human good, separate from friendship, consummated by a greater intimacy and sharing.

Unlike non-gay conjugal relationships, gay relationships, similarly situated, are not oriented to procreation, per se. The sharing between gays is more pure, a good in itself, not so obviously a means-to-an-end. This superior good, we’ll call “real marriage”.

Then, I just run GGA’s own arguments against them…including a rewrite of the odious Section II

…with the conclusion that we can see, either from ‘nominalism’ or ‘natural law’ that both types of union are valuable and that, absent tangible, concrete, compelling harms, both should be recognized at law, as a condition of human flourishing.

Hunter
February 16th, 2011 | LINK

I’m going to add another digression, not philosophical, but historical/sociological.

Marriage is, in fact, what the law says it is, but that’s not as simple a statement as it might seem. Laws grow out of a social/cultural context and, in the broadest sense, codify the conceptual foundations of a society. Hence, no society condones murder or theft — those are destructive to the social fabric, quite aside from questions of morality, whatever that may be in a given context.

As an aspect of this, the law also guarantees contracts — there are penalties under the law for violating agreements, because contracts are basic to the workings of a society. And marriage is, in its foundation, a contract between two persons. (Presently, at least — it used to be a contract between two families, and think about the implications of that for a while.) Marriage laws are also the state’s way of synthesizing the various understandings of marriage within a society and codifying a consensus on what, in practical terms, constitutes a marriage.

Societies change, and laws change to reflect that. So there is ample basis for “revisionists” to say that marriage laws are wrong at this particular time, because they do not reflect the reality of the cultural definition of marriage as it exists now.

And in the U.S., we live in a society that holds as a basic principle that all persons are to be treated equally under the law. The only exceptions must have a compelling state interest and a rational basis. And that’s where the anti-SSM arguments, including George’s, fail: no one has demonstrated a compelling state interest that is served by laws denying same-sex couples the right to marry. The only basis for such laws has been demonstrated to be animus, which doesn’t count as a rational foundation.

George seems to want to keep this discussion in the realm of abstraction, because that’s the only way he has any hope of an argument, as shoddy as it is. Unfortunately, marriage as a matter of civil law — and really, that’s the whole point here — must be grounded in social realities. Theorists such as George and David Blankenhorn can go on as much as they like about “conjugal unions” and “mystical potential for procreation,” but the bottom line is that their theories and their arguments are irrelevant.

As a footnote, it occurs to me that George’s argument is essentially religious in nature, based in the concepts of the monotheisms (what Joseph W. Campbell calls “the desert religions”): he’s trying to establish inviolable absolutes founded in abstractions, and thinking in terms of dichotomies rather than continua. Unfortunately for him, the universe is not a place of black and white, either/or — it’s rendered in shades of gray, particularly when it comes to human behavior as reflected in human culture. (And as we’re learning, even physics can no longer be relied on to provide absolutes.)

Excellent dissection, Rob. I’m glad you took it on — that means I don’t have to.

Hunter
February 16th, 2011 | LINK

About that last point: under U.S. law, there is a fundamental right to marry the person you love, subject to certain restrictions that, again, must have a rational basis. Hence, marriage of an adult and a child can be denied because the state has a compelling interest in protecting children (and others who are not competent to give informed, mature consent), and denying marriage to pedophiles and their victims furthers that interest.

The whole pedophile/bestiality argument is garbage anyway — it’s not an argument, it’s merely a scare tactic designed to go straight to the reptile brain. Formally, it’s a red herring.

Hunter
February 16th, 2011 | LINK

PS — about that last point: you allude to my objection in the paragraph previous. I only wonder why you didn’t follow through in relation to the “fundamental right” question.

Priya Lynn
February 16th, 2011 | LINK

I disagree with your’s and George’s defintion of friendship. Friendship is merely the enjoyment of each other’s company. Willing good for each other is a common but not necessary feature of friendship just as children are a common but not necessary feature of marriage. I’ve had friends who’ve poorly hidden their enjoyment from my misfortunes and who’ve on occaision surreptitiously tried to bring about undesirable outcomes for me.
Despite their not willing me good they still considered me a friend and although I stopped being their friend it wasn’t because they didn’t will good for me, it was because I no longer enjoyed their company.

Amicus said “…align the responsibilities of parents toward each other and toward ‘the common good’ (among other things, no doubt). Again, notice I deliberately said nothing about children or procreation.”.

But you did say something about children and procreation. When you refer to parents you are indirectly refering to children and procreation.

Ben in Oakland
February 16th, 2011 | LINK

incestuious gay marriages are not really an issue. as I pointed out in an earlier posting, marriage is the means by which a NEW family is created. this runs across all marriages in all cultures, no matter how marriage may be “defined” in that culture.

you can’t marry a cihld not only because a child cannot give consent to a ocntract, but becuase hte proper way to estalbisdh a legal relationship with a child is ADOPTION, not marriage.

You cannot marry your father, mother, sister, or brother because they
ALREADY have legal relationships with you. If you are not married, those legal relationships take precedence. They will inherit your stuff or make medical decisions for you.

If you are married, the spousal relationship takes precedence, though as we saw in the Terry Schiavo case, relatives can try to assert relational supremacy, and a few republicans bent upon re-deifining marriage can try to make it difficult for you.

In any case, George’s arguments about friendships are hollow, because any man and woman who are legally eligible to do so can get married to each other, whether they met five minutes ago, are just good friends, a gay man and woman, ever intend to have sex or procreate.

Regan DuCasse
February 16th, 2011 | LINK

Friendship and kinship, are the difference between choosing and not choosing. And also the difference in HOW MANY friends and kin one has.

Incest and multiple marriages, would have an infinity attached because one can have a variety of different relatives and Polygamous or poly amorous situations are not always of choice for the initial or other spouses.

Marriage as defined at THIS point in our society require ONE who is the PRIMARY person with all the responsibilities and custody of the other. The contract, so to speak, is that such custody and responsibility is enforced BY the state.
Primacy and consent are THE most influential factors for marriage that streamline the process for the state and the individuals involved.

Where there is no rationalization or fairness where gay couples are concerned, is that a hetero person can marry another APPROPRIATE to their shared and mutual orientation.
A gay person should be able to have the SAME option. To marry someone else who is also gay.

But George’s point assumes that marriage requires a moral test of love to be valid, and that gay relationships have NO validity in this regard as if gay people have no such feelings for each other.
As pointed out, a pair of strangers can marry as long as they are op sex.
The ONLY requirement a gay couple WOULDN’T want to meet and can’t.
Otherwise the other requirements and standards ARE met by gay couples as are the situations within those relationships the state can’t monitor or qualify anyway.

And there IS the reality of the inter sexed or transgendered. When gender IS taken from the requirement, what’s more appropriate to the issue, rather than incest or polygamy, is the option for those with ambiguous gender to be able to participate in marriage as well.
Solving another PROBLEM that comes up in court too, on the validity of marriages performed before or after a person transitioned.

Amicus
February 16th, 2011 | LINK

Priya, you are right. Would it be better with “parents and non-parents” or simply just left as “adults”?

In footnote 16,p. 255, George attempts (minimally) to answer my argument, by referring the reader to his book, “Body-Self Dualism in Contemporary Ethics and Politics”. On first reflection, I don’t think he is going to square that circle, though. The more he relies on a bodily-organ telos defined in relation to procreation, the more marital-sex looks ‘instrumental’.

Bits of his book are available online.

They are fascinating, insofar as they reveal just how much of a put-up job the Harvard article is, in its omissions, shadings, and so forth (where ‘so forth’ might be found in the posts about miscegenation, for starters…).

Anyway, check out what he was writing four or five years ago (published in 2007), for an audience less hoodwinkable:

There are three main views of marriage. First, some thinkers have held that marriage is an institution which is defined by its instrumental relation to procreation.[note St Augustine, _De Bono Coniugali_] On this view, marriage is essentially a contractual union, and its extrinsic purpose is the conceiving and rearing of children. Proponents of this view usually hold that marriage should also, ideally, involve a friendship between the husband and wife. Marital union involves an agreement concerning acts of sexual intercourse, and sexual intercourse within marriage is conceived not only as serving procreation, but also, secondarily, as symbolizing the marital friendship. Still, the relationship between husband and wife is conceived as _in itself_ nonbodily, and sexual intercourse is viewed as extrinsic (and extrinsic means) to procreation (or, failing that, to marital friendship).

A second view, certainly more popular these days, is that marriage is essentially a friendship, procreation is an extrinsic addition to that relationship, and sexual acts are extrinsic symbols or expressions of love or of the couple’s personal communion. On this view, there is no _intrinsic_ or _essential_ relationship between marriage and procreation. A couple may wish to have children, and having children may even be viewed as contributing to their marital relationship. But procreation is not viewed as intrinsically linked with marriage. As a consequence, on this view there is no reason why “marriage” should refer only to man-woman relationships, or, to express the same point differently, why (if this view is consistently worked out, which is not always the case) there is any morally significant difference between homosexual and heterosexual relationships.

The third view of marriage, the traditional view, is the one we propose. On this view, marriage is the community formed by a man and a woman who publicly consent to share their whole lives, in a type of relationship oriented toward begetting, nurturing, and educating of children together. This community is naturally oriented to procreation, and is naturally fulfilled by it, though it also is good in itself and not a mere means to procreation.
…both desirable and inevitable that children will come to be. …what must society and those in society who engage in sexual acts do in order to be fair to the children who will come to through sexual acts?

The answer is that those couples who perform sexual acts should first form a community that will be dedicated to the raising and educating of children and who might come to be. State-run organizations, business enterprises, even communes… are not the groups most suitable for the raising and educating of children… Even though this or that particular marriage may not result in children, marriage is the _sort_ of relationship _that would be fulfilled by_ bearing and raising children together. This openness to procreation…distinguishes…

Moreover, sexual acts have a tendency, in most people at least, to create strong feeling of bonding and an expectation of a deeper, noninstrumental relationship.l And the desire to have children is often, and naturally, an outgrowth of a romantic love between and [sic] a man and a woman. When a man and a woman love each other, they naturally tend to desire to form a life together, and (often) to have children together. Thus, marriage is the society whose distinctive purpose is the provision of a stable and protective environment not only for the bearing and raising of children but also for romantic love, a love that is itself intrinsically linked to bearing and raising children. Rightly understood, marriage has a twofold end – one end with two aspects, the marital communion itself and procreation.

There are other kinds of gems, as well.

For instance, he says outright that infertile couples are

Priya Lynn
February 16th, 2011 | LINK

Amicus said “Priya, you are right. Would it be better with “parents and non-parents” or simply just left as “adults”?”.

I think “adults” but I suspect you’re in a better position to judge which than me.

Ben in Oakland
February 16th, 2011 | LINK

“Moreover, sexual acts have a tendency, in most people at least, to create strong feeling of bonding and an expectation of a deeper, noninstrumental relationship.l And the desire to have children is often, and naturally, an outgrowth of a romantic love between and [sic] a man and a woman. When a man and a woman love each other, they naturally tend to desire to form a life together, and (often) to have children together. Thus, marriage is the society whose distinctive purpose is the provision of a stable and protective environment not only for the bearing and raising of children but also for romantic love, a love that is itself intrinsically linked to bearing and raising children. Rightly understood, marriage has a twofold end – one end with two aspects, the marital communion itself and procreation.’

Ansd you could substitute “two men” or “two women” just about everywhere in this statement, and it would be EQUALLY true.

And even the “procreation’ part of it is still applicable, since not all heteros can or want to procreate, but they still wish to provide families for children.

I have friends that have adopted, have their own children from previous hetero relationships, and who areu sing surrogates– all options availabvle ot heteros.

It sounds like all of geotrge’s arguments ultimately boil down to “Penis and vagina are better becuase they just are.”

Not bigotry is hate, fear, ignorance, or superstition. a good deal of it is based upon nothing more than a firm belief in an otherwise wholly imaginary superiority.

Priya Lynn
February 16th, 2011 | LINK

George keeps trying to base his argument that marriage be restricted to penis in vagina based on gearing marriage towards procreation and raising children. His restriction is nonsensical given that many gays and lesbians have children and many heteros don’t. If he truly believes marriage is important to having and rearing children it must include gay and lesbian couples. Obviously children aren’t what’s motivating his argument because he wants to do everything in his power to exclude some couples who will have and raise children.

michael
February 17th, 2011 | LINK

“George is a Catholic natural law philosopher. He thinks we can reason our way to ethical and moral truth, but the conclusions have to match the church’s interpretation the Gospels.”

this right here invalidates his WHOLE argument because 1: it doesnt matter how many or what kind of degrees you have if religion of any kind is preventing you from exploring the science of anything then it’s not science and thus not pure. 2: science is not about whether a group of people who happen to fund your studies agrees with what you find to be factual or not it reveals the universe AS IT IS and no philosophy or religion can deny the facts of the universe as it is right there in plain sight.

Timothy Kincaid
February 17th, 2011 | LINK

Third, there is no general right to marry the person you love…

And there never has been.

Because marriage involves not one person, but two. And the “general right to marry” has always (whether or not “the person you love”) required the agreement of that second person. It is this second person permission that excludes pedophilia.

Marriage to a child has historically been limited by that child’s right to self determination – and still is. In many states, marriage before the child’s age of majority requires a parent’s permission. And it was not uncommon in feudal times for nobility to barter a child’s marriage at a very young age – even if they did often not formalize or consummate the marriage until sexual maturity.

A child cannot marry for many of the same reasons that they cannot work and cannot be held to a legal contract of any kind. Not only because it’s creepy, but because a child is incapable of making rational decisions. And our current society has determined that when it comes to child sexuality and marriage, even parents cannot be trusted to act in their child’s best interest.

Robert George would exclude gay people from marriage for the same reason. Because he believes that he knows what is best for us. His temptation to compare same-sex marriage to pedophilia is not only to scare the masses, but because he sees us a moral children, incapable of knowing or doing what is best for us.

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