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Reply to George: VIII. Only the Dead Can Marry!

Rob Tisinai

February 28th, 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 259: In which George accidentally argues it’s okay for the government only to recognize the marriages of dead people (yes! yes, he does!).

Robert George, having “proven” that marriage can only exist between a man and a woman, and that it has an essential orientation to children, now turns his attention for some reason to what he calls “marital norms”:

Finally, unions that are consummated by the generative act [*], and that are thus oriented to having and rearing children, can make better sense of the other norms that shape marriage as we have known it.

George makes three mistakes he’s made before.

  1. This reasoning is circular. George insists that his conjugal/procreative view represents “marriage as we have known it.” He’s wrong, but for now take him at his word.  In that case this paragraph amounts to:

The conjugal view of marriage explains the norms that have arisen around the conjugal view of marriage, which suggests the conjugal view is correct.  Why? Because it explains the norms…

And so on, around and around, with no starting point.  One might as well argue that segregationist ideas were able to explain the norms of segregation, which suggests that segregationist ideas were correct.  Why? Because they explain the norms, etc.

  1. A theory’s ability to explain does not make the theory true.  Can the conjugal/procreative view explain our marital norms? Perhaps. But that means nothing unless it’s the only view that can do this. George certainly hasn’t established that.

  2. George is violating the premise of his article. George believes marriage isn’t just whatever we say it is.  But “norms” represent nothing more than what most people do and believe. They’re not borne out of principled argument, but arise through trial and error over time and are subject to change.

Think of it this way: if marital norms continue changing to include two adults of any gender, will George revise his theory to include them? If so, then he’ll have to adopt the revisionist view he detests. If not, then marital norms are irrelevant to his discussion.

What are those “norms”?

Of course, those of us who are more empirical do care about these norms, so let’s take a look. George talks about two: permanence and exclusivity.

And we’re in trouble already. Western culture grew out of two traditions: the Judeo-Christian and the Greco-Roman.  Both have allowed divorce. The Old Testament is full of guidelines for ending a marriage, and while Jesus strenuously opposed divorce, that hasn’t kept Protestant culture from permitting it.

As for exclusivity — throughout western history that expectation has applied mainly to women. Men could have multiple wives, concubines, and literal sex slaves.

George’s norms depend on the time and place you’re looking at.  You can believe they have value and still recognize that George hasn’t grounded them in principled reasoning.

On permanence

George writes:

For if bodily union is essential to marriage, we can understand why marriage is incomplete and can be dissolved if not consummated, and why it should be, like the union of organs into one healthy whole, total and lasting for the life of the parts (“till death do us part”). That is, the comprehensiveness of the union across the dimensions of each spouse’s being calls for a temporal comprehensiveness, too: through time (hence permanence) and at each time (hence exclusivity).

First, toss out the first half of that first sentence.  Marriage cannot always be dissolved if not consummated. From the American Bar Association:

Most states consider a couple to be married when the ceremony ends. Lack of subsequent sexual relations does not automatically affect the validity of the marriage, although in some states non-consummation could be a basis for having the marriage annulled.

Some states. What about the others? Looks like George is picking and choosing his norms.

Now to the rest of George’s paragraph: a comprehensive union requires comprehensiveness across time.

Does it? We can’t know and George can’t prove it. First, because he never proved that a “real” marriage must be a “comprehensive union.” He just said that most people acknowledge it to be so. But, as we’ve established (over and over), what most people acknowledge is irrelevant in George’s logic.

Second, even if you accept the notion of comprehensiveness (as I’m inclined to), George never defined the term clearly enough to draw logical conclusions. He has said that comprehensive doesn’t have to mean all-encompassing, so that takes “permanence” off the table, even by George’s own reasoning.

No one’s married until someone dies!

Now this next bit is a favorite of mine. Let’s see where George’s premises can take us:

  1. George believes a lot of couples claiming marriage don’t have “real” marriages.

  2. George believes a union must be permanent to be a “real” marriage.

  3. But we can’t know a marriage is permanent — and therefore “real” — until it finally ends with the death of one partner.

  4. George believes “the state is justified in recognizing only real marriages as marriages.”

  5. Therefore (wait for it…), George’s reasoning leads us to conclude that:

The state is justified in recognizing only the unions of dead people as marriages.

Because, after all, until then, the state can’t be sure they are “real.”

I love that.  I have to admit it.  It tickles me and I find it delicious. To escape this, George has to abandon one of his beliefs. I have no idea which one, but I can’t wait.

By the way, I have to wonder what George thinks of a couple with children who continues living together, but not comprehensively.  That is, they stop having sex, or lose their emotionally intimacy, or separate their finances as much as they can, or simply barely speak to one another.

If their union is no longer comprehensive, are they still really married?  And if “real” marriage requires permanent, continual comprehensiveness (“through time” and “at each time,” in George’s words) is the government justified in saying they were never really married?

Also, George (as a Catholic natural philosopher) is devoting his life to creating a reason-based justification for Catholic doctrine.  But here’s a conflict. If two Catholics are married by a priest and have sex, the Church sees them as permanently married (with few exceptions).  How does that fit with George’s requirement for permanent, continual comprehensiveness?  It seems to say a man and wife could just shake hands and part ways, and thus no longer be “really” married.

I can only wonder.

Sorry.

I know I promised you polygamy and incest, but that would make this entry awful long and I’m already late with it. It’s coming, though.

Next time: Polygamy, incest, and the failure of George’s definition of marriage.

* We’ve been through George’s abuse of this term many times. Check here if you don’t recall.

Comments

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Jeremy
February 28th, 2011 | LINK

I love the series, but “IIX”? Really?

Some of us are born nitpickers.

Rob Tisinai
February 28th, 2011 | LINK

Oh, all right. Fixed. :)

John D
February 28th, 2011 | LINK

I have to come to Rob’s defense (perhaps too late). I remembered that in classical Latin 8 could be rendered IIX. Wikipedia confirmed this.

Murr Brewster
March 1st, 2011 | LINK

Don’t scoff. There are many marriages involving at least one dead person. Sometimes they’re just found to be watching TV, though.

Let’s face it. George’s entire blathertext boils down to: homosexuality makes me feel really, really icky, and sometimes a little funny in the tummy.

Amicus
March 1st, 2011 | LINK

My feedback:

This is actually an important section. I’m glad it gets singular attention. It leads into the key footnotes 55, 58, and 61; the challenges to “revisionists”; and the bold claims made about “enshrinement” (p. 269).

Many things going on in this section at once. So many, it’s hard to untangle them all, successfully.

First, is the transition to the use of “norms”.

Normally (pun intended), we could lay out a framework in which our moral insights give rise to a set of ethical norms. In moral thought, norms can be thought of as the meta principles that make it possible to combine and direct our basic moral insights. (Norms are also distinct from the law or what is lawful, in some ways.)

Is that what George is doing? No. Instead of making a ‘ground up’, positive case of what is implied by his view, he’s asked whether his PIV orientation can “better explain” certain, selected, ‘top down’ (“traditional”) norms? This leads him down a sorry path of reader-seductive confirmation bias, at a minimum, right? Rob points this out, showing that norms have changed over time, why these norms and not others, like arranged marriages, etc.

Second, why is he locating the “features” of permanence and exclusivity as external goods of marriage or whatever, rather than essential aspects of the fundamental human good, as essential aspects of “comprehensiveness”? Perhaps he does – I’d have to read it again, it’s so unclear.

We can conjecture that he resists saying so because that would make these features sine qua non. He would then be fully committed “philosophically” to arguing against divorce and remarriage and against infidelity with the same vociferousness as he does against non-PIV, right?

He may well be committed to arguing that, but it is obviously not as popular as putting down the gays, so perhaps it’s no wonder that the section is short, undeveloped, a facile rhetorical way seemingly to shift ‘the burden of polygyny’ to “revisionists”.

What’s more, we can recall that George sets out to make his position “philosophically defensible” (p. 248)

Just keeping a running total, the philosophical claims under ‘natural law’ start to look a lot more narrow (scaled back, attenuated) than imagined or hoped and the defense is not quite as robust as asserted, but relies on open-form considerations like, “how well do we explain the tradition of marriage?”.

And, on that last note, I have to say that George is false in his assertion that PIV+children makes “better sense” of the historical norms, even the two (or three) he selects.

This frustration isn’t limited to those two norms, either. To make his philosophical view consistent, everything – and I mean everything – has to be refracted through the prism of “the children”. This leads to assertions of linkages so tenuous that the defense part of “defensible moral position” looks thin.

Consider the norm of infidelity. Now, how many people would _chiefly_ understand an episode of infidelity in terms of the children? Philosopher, please! The jealousies, passions, and anger associated with much infidelity is more closely linked to adult-adult relationship, not adult-child::adult-child.

Or, consider other (legal) benefits -practices – and norms of marriage, ones that George leaves out. What about legal immunity from testifying against your spouse? I submit that “the children” does not help to make “better sense” of that provision. We protect the adult-adult bond, there. It’s not functional to the children, even though people do claim it is. What about the IRS’s “married, head of household”? Again, this benefit of marriage, this “norm”, is not to be better understood through the prism of “the children” (you don’t even have to have children to fall into this tax-favored category).

These considerations might seem ridiculously philosophical, but they have import in making later judgments that exclusions from marriage, from any relationship recognition for gays, are overbroad, when considered strictly and intelligently in relation to the defensible principles that underlying them.

Last, consider his notion of permanence, which he also suggests makes sense only or “better” through reference to a generative act. Frankly, “‘Til death us do part” seems to have a far greater metaphorical content than instrumental reference to the mere 20 years to raise a child.

CPT_Doom
March 1st, 2011 | LINK

Most states consider a couple to be married when the ceremony ends. Lack of subsequent sexual relations does not automatically affect the validity of the marriage, although in some states non-consummation could be a basis for having the marriage annulled.

Ah, here George is being explicitly Catholic, because one of the very few reasons for annullment is lack of consumation. I believe this is also true for the Anglican church (see Henry VIII and his 4th wife, Anne of Cleves).

If two Catholics are married by a priest and have sex, the Church sees them as permanently married (with few exceptions). How does that fit with George’s requirement for permanent, continual comprehensiveness?

Exactly, marriage in the Catholic church requires a) a man and a woman who are either widowed or never married (an annullment means you’ve never been married) b) a Catholic priest to perform the ceremony and c) at least one sexual act between the couple following the ceremony. Almost nothing that happens after that matters. In fact, my own great-aunt was considered married to her worthless husband, who abandoned her with 2 little children, throughout the remaining 40 years of her life. She legally divorced the SOB to gain welfare, but followed the Church’s rules and never even dated afterwards. She considered herself married unti her dying day, although she wouldn’t even have been able to recognize her husbad by that time.

So the very relationships considered “marriage” by the Church don’t even meet George’s definitions.

Kelly
March 1st, 2011 | LINK

So, with this “generative act” stuff, I wonder what that says about a male-female couple in which one of them has a disability which makes the “generative act” impossible. I’m not talking about fertility problems, I’m talking about penis-in-vagina sexual intercourse being physically impossible. If such a couple cannot consummate their marriage, do they not have a “real” marriage? If the disability is temporary and resolved at some later time, does the marriage only become “real” when it can actually be consummated through the “generative act”?

If he would not argue that such couples aren’t really married, then we’re not even talking about the “generative *act*” co much as having the *parts* that would, in other circumstances, make the “generative act” possible. Is this really what he’s hinging “real” marriage on?

Priya Lynn
March 1st, 2011 | LINK

Kelly asked “Is this really what he’s hinging “real” marriage on?”.

Yes. That’s the only way he can define marriage so as to exclude gays and lesbians but not, for example, infertile heterosexual couples.

Timothy Kincaid
March 1st, 2011 | LINK

A high profile ex-gay leader and his wife did not consummate their marriage for nine months due to some not-clearly-identified medical issue.

At what point would George consider them to have a “real” marriage? At what point would those who monitor the ex-gay industry consider it real?

(For what it’s worth, I consider their marriage completely real. They went into it with full disclosure and I respect whatever it is that they both get from the union.)

CPT_Doom
March 1st, 2011 | LINK

@Kelly,

Actually that again is the Catholic Church’s position. There was a case in South America IIRC where a wheelchair-bound man was barred from marriage by the Catholic Church because he was impotent due to his injury. There was outcry at the time. Interestingly, if the man were wheelchair-bound two weeks after the wedding, and it had been consumated, the Church would consider them married forever, even though children would no longer be possible. This is another circumstance where George’s definition of marriage does not necessarily square with that of his own Church.

Amicus
March 2nd, 2011 | LINK

(just a note: I have to add that Rob’s “only the dead can marry” is brilliant, because, later, it may bring into high relief the list of considerations about natural-law marriage that George is willing to drop, when it comes to “practicalities” of what is available a law.

In the back of my mind, such disconnect(s) could imply that, even if George’s moral view is not refuted, in a technical sense, an alert Justice might still find such disconnects wide enough to rise to serious due process and equal protection violations.)

Reed Boyer
March 2nd, 2011 | LINK

I’m waiting for the polygamy and incest.

We were promised polygamy and incest – and at the rate the Mormons are tinkering with my native state’s laws, it may arrive here in California in actuality sooner than later.

Polygamy and incest info, STAT, please. We need to study up on the protocols.

Amicus
March 17th, 2011 | LINK

Sorry to use this space as a notepad, but let me add this to the mix, because it so dramatically contrasts with GGA.

It’s from Maggie Gallagher:

“But the legal structure is of marriage is deeply influenced by our specific religious traditions about marriage. Which of these conceptions are we allowed to keep and which must be discarded as unduly religious? Monogamy? Mutual fidelity? Primacy of husband and wife over other relationships? None of these are human universals. They are the products of a specific marriage tradition deeply rooted in religious ideas.” -How gay marriage will weaken…2005

Wow!!!

So much for George’s attempt to ground these key things in reason-freed-from-dogma. Maggie says they aren’t. Indeed, they are religious “products”.

Amicus
March 17th, 2011 | LINK

By the way, one can see a role for activists to read this stuff, comprehend it, and collect quotes like this for our activism.

They have no qualms about taking the worst quotes they can find about what Andrew Sullivan ever said and reproducing them for their target audience.

This is the real “NOM Exposed”, the kind of stuff that shows the little man behind the big curtain.

Just because they hang out a sign calling themselves “religious traditionalists” doesn’t mean that they ought to get immediate credibility.

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