[Harvard Journal of Law and Public Policy] What is Marriage? Man and Woman: A Defence

bobmarley · Apr 5, 2013

link to PDF

What is Marriage?

Sherif Girgis
Princeton University Department of Philosophy

Robert George
Princeton University - Department of Politics

Ryan T. Anderson
University of Notre Dame Department of Political Science

November 23, 2012

Harvard Journal of Law and Public Policy, Vol. 34, No. 1, pp. 245-287, Winter 2010

Abstract:
In the article, we argue that as a moral reality, 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 fulfilled by bearing and rearing children together, and renewed by acts that constitute the behavioral part of the process of reproduction. We further argue that there are decisive principled as well as prudential reasons for the state to enshrine this understanding of marriage in its positive law, and to resist the call to recognize as marriages the sexual unions of same-sex partners.

Besides making this positive argument for our position and raising several objections to the view that same-sex unions should be recognized, we address what we consider the strongest philosophical objections to our view of the nature of marriage, as well as more pragmatic concerns about the point or consequences of implementing it as a policy.

*UPDATE:

We have revamped and expanded our argument for a new book, "What Is Marriage? Man and Woman: A Defense," available now for preorder (see below) and released in December 2012. The book revamps the article's argument, bolstering and elaborating its positive points for a general audience, answering the most common and serious objections, and sharpening objections for opposing views.

We will be posting reviews, and replies to new critiques as they arise, at whatismarriagebook.com

Number of Pages in PDF File: 43

It looks its not just crazy Christians who believe it.

Link to source

bobmarley · Apr 5, 2013

Here is the opening of the paper.

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 be‐ havioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its in‐ herent orientation to the bearing and rearing of children con‐ tributes 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.1

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 un‐ ion of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recog‐ nize 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.2

It has sometimes been suggested that the conjugal under‐ standing of marriage is based only on religious beliefs. This is false. Although the world’s major religious traditions have his‐ torically understood marriage as a union of man and woman that is by nature apt for procreation and childrearing,3 this sug‐ gests merely that no one religion invented marriage. Instead, the demands of our common human nature have shaped (however imperfectly) all of our religious traditions to recognize this natu‐ ral institution. As such, marriage is the type of social practice whose basic contours can be discerned by our common human reason, whatever our religious background. We argue in this Article for legally enshrining the conjugal view of marriage, us‐ ing arguments that require no appeal to religious authority.
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bobmarley · Apr 5, 2013

The next section of the article.

Part I begins by defending the idea—which many revision‐ ists implicitly share but most shrink from confronting—that the nature of marriage (that is, its essential features, what it fun‐ damentally is) should settle this debate. If a central claim made by revisionists against the conjugal view, that equality requires recognizing loving consensual relationships,5 were true, it would also refute the revisionist view; being false, it in fact re‐ futes neither view.

Revisionists, moreover, have said what they think marriage is not (for example, inherently opposite‐sex), but have only rarely (and vaguely) explained what they think marriage is. Consequently, because it is easier to criticize a received view than to construct a complete alternative, revisionist arguments have had an appealing simplicity. But these arguments are also vulnerable to powerful criticisms that revisionists do not have the resources to answer. This Article, by contrast, makes a posi‐ tive case, based on three widely held principles, for what makes a marriage. Part I also shows how the common good of our society cru‐ cially depends on legally enshrining the conjugal view of mar‐ riage and would be damaged by enshrining the revisionist view—thus answering the common question, “How would gay civil marriage affect you or your marriage?” Part I also shows that what revisionists often consider a tension in our view— that marriage is possible between an infertile man and woman—is easily resolved. Indeed, it is revisionists who can‐ not explain (against a certain libertarianism) why the state should care enough about some relationships to enact any mar‐ riage policy at all, or why, if enacted, it should have certain fea‐ tures which even they do not dispute. Only the conjugal view accounts for both facts. For all these reasons, even those who consider marriage to be merely a socially useful fiction have strong pragmatic reasons for supporting traditional marriage laws. In short, Part I argues that legally enshrining the conjugal view of marriage is both philosophically defensible and good for society, and that enshrining the revisionist view is neither. So Part I provides the core or essence of our argument, what could reasonably be taken as a stand‐alone defense of our position.

But many who accept (or at least grant) our core argument may have lingering questions about the justice or consequences of im‐ plementing it. Part II considers all of the serious concerns that are not treated earlier: the objections from conservatism (Why not spread traditional norms to the gay community?), from practical‐ ity (What about partners’ concrete needs?), from fairness (Doesn’t the conjugal conception of marriage sacrifice some people’s ful‐ fillment for others’?), from naturalness (Isn’t it only natural?), and from neutrality (Doesnʹt traditional marriage law impose contro‐ versial moral and religious views on everyone?).

As this Article makes clear, the result of this debate mat‐ ters profoundly for the common good. And it all hinges on one question: What is marriage?
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bobmarley · Apr 5, 2013

The next part deals with a common fallacy that revisionists make.

A. Equality, Justice, and the Heart of the Debate

Revisionists today miss this central question—what is mar‐ riage?—most obviously when they equate traditional marriage laws with laws banning interracial marriage. They argue that people cannot control their sexual orientation any more thanthey can control the color of their skin.6 In both cases, they ar‐ gue, there is no rational basis for treating relationships differ‐ ently, because the freedom to marry the person one loves is a fundamental right.7 The state discriminates against homosexu‐ als by interfering with this basic right, thus denying them the equal protection of the laws.8

But the analogy fails: antimiscegenation was about whom to allow to marry, not what marriage was essentially about; and sex, unlike race, is rationally relevant to the latter ques‐ tion. Because every law makes distinctions, there is nothing unjustly discriminatory in marriage law’s reliance on genu‐ inely relevant distinctions.

Opponents of interracial marriage typically did not deny that marriage (understood as a union consummated by conjugal acts) between a black and a white was possible any more than propo‐ nents of segregated public facilities argued that some feature of the whites‐only water fountains made it impossible for blacks to drink from them. The whole point of antimiscegenation laws in the United States was to prevent the genuine possibility of inter‐ racial marriage from being realized or recognized, in order to maintain the gravely unjust system of white supremacy.9

By contrast, the current debate is precisely over whether it is possible for the kind of union that has marriage’s essential fea‐ tures to exist between two people of the same sex. Revisionists do not propose leaving intact the historic definition of marriage and simply expanding the pool of people eligible to marry. Their goal is to abolish the conjugal conception of marriage in our law10 and replace it with the revisionist conception. More decisively, though, the analogy to antimiscegenation fails because it relies on the false assumption that any distinc‐ tion is unjust discrimination. But suppose that the legal inci‐ dents of marriage were made available to same‐sex as well as opposite‐sex couples. We would still, by the revisionists’ logic, be discriminating against those seeking open, temporary, poly‐ gynous, polyandrous, polyamorous, incestuous, or bestial un‐ ions. After all, people can find themselves experiencing sexual and romantic desire for multiple partners (concurrent or serial), or closely blood‐related partners, or nonhuman partners. They are (presumably) free not to act on these sexual desires, but this is true also of people attracted to persons of the same sex.

Many revisionists point out that there are important differ‐ ences between these cases and same‐sex unions. Incest, for ex‐ ample, can produce children with health problems and may involve child abuse. But then, assuming for the moment that the state’s interest in avoiding such bad outcomes trumps what revisionists tend to describe as a fundamental right, why not allow incestuous marriages between adult infertile or same‐sex couples? Revisionists might answer that people should be free to enter such relationships, and all or some of the others listed, but that these do not merit legal recognition. Why? Because, the revisionist will be forced to admit, marriage as such just cannot take these forms, or can do so only immorally. Recog‐ nizing them would be, variously, confused or immoral.

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.” Otherwise, how could the law get marriage wrong? Rather, some sexual relationships are in‐ stances of a distinctive kind of relationship—call it real mar‐ riage—that has its own value and structure, whether the state recognizes it or not, and is not changed by laws based on a false conception of it. Like the relationship between parents and their children, or between the parties to an ordinary promise, real marriages are moral realities that create moral privileges and ob‐ ligations between people, independently of legal enforcement.11
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Deckard · Apr 5, 2013

It's not accepted behavior at this BBS to make multiple posts one after the other. An FYI. I'll leave your other absurd behavior aside for the nonce.

bobmarley · Apr 5, 2013

Deckard said: ↑

It's not accepted behavior at this BBS to make multiple posts one after the other. An FYI. I'll leave your other absurd behavior aside for the nonce.
Click to expand...

I apologize for the four posts in a row. I was trying to post of them arguements of the article without creating a tl;dr post.

Deckard, you did a good job avoiding the article itself. I applaud you. Done with true deft.

dback816 · Apr 5, 2013

Meaningless article.

Marriage never had an universal definition to begin with and things change (I'd use the word "evolve" but I know that's another thing you don't believe in) all the time, you happy bundle of sticks.

Cohete Rojo · Apr 5, 2013

Marriage is a religious institution, which the state has no right to recognize. See, First Amendment. That, or it is punishment for shoplifting in some countries.

bobmarley · Apr 5, 2013

dback816 said: ↑

Meaningless article.

Marriage never had an universal definition to begin with and things change (I'd use the word "evolve" but I know that's another thing you don't believe in) all the time, you happy bundle of sticks.
Click to expand...

Please support your claim with evidence that Marriage has not always been defined between a man and a woman.

I would use the word revision not evolve. I appreciate your kind words, it sure goes a long in proving the point of who is truly intolerant and slanderous.

Refman · Apr 5, 2013

bobmarley said: ↑

Please support your claim with evidence that Marriage has not always been defined between a man and a woman.

I would use the word revision not evolve. I appreciate your kind words, it sure goes a long in proving the point of who is truly intolerant and slanderous.
Click to expand...

When marriage was first created, it didn't come with a myriad of legally protected rights and benefits. When we, as people, made so much hinge on the marriage status, we changed the game.

bobmarley · Apr 5, 2013

Refman said: ↑

When marriage was first created, it didn't come with a myriad of legally protected rights and benefits. When we, as people, made so much hinge on the marriage status, we changed the game.
Click to expand...

Are you sure that when it was created that it didn't have any legally protected rights or benefits?

dback816 · Apr 5, 2013

bobmarley said: ↑

Please support your claim with evidence that Marriage has not always been defined between a man and a woman.

I would use the word revision not evolve. I appreciate your kind words, it sure goes a long in proving the point of who is truly intolerant and slanderous.
Click to expand...

Please understand that my less than generous words are the result of me refusing to take your stance on marriage seriously, just as one would not respect a fool's notion that 1 + 1 = 5

Refman · Apr 5, 2013

bobmarley said: ↑

Are you sure that when it was created that it didn't have any legally protected rights or benefits?
Click to expand...

Having not been around in Ancient Rome, I am not 100% sure, but I feel pretty secure in surmising that it didn't come with tax benefits and health insurance benefits. I am sure there are others I could list, but it has been a long week and I'm a little tired.

VooDooPope · Apr 5, 2013

Words and meanings change over time.

Love and marriage mean different things to diffeernt people.

Why would you care if it wasn't directly related to you?

tallanvor · Apr 5, 2013

It's silly semantics debating what a word means. An incredibly uninteresting debate.

Haymitch · Apr 5, 2013

Meanings of words change. See: liberal.

Who cares. Move on.

This shouldn't even be a political issue. Marriage is a personal matter. If two consenting adults want to be together, my god man, let them. If what you're upset about is the legal/financial benefits, then protest the state's involvement. Otherwise, who cares.

mc mark · Apr 5, 2013

<iframe width="420" height="315" src="http://www.youtube.com/embed/Sbqv3MwwVd8" frameborder="0" allowfullscreen></iframe>

Northside Storm · Apr 6, 2013

But the analogy fails: antimiscegenation was about whom to allow to marry, not what marriage was essentially about; and sex, unlike race, is rationally relevant to the latter ques‐ tion.
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Using this argument, should infertile couples not be allowed to form?

carlosc · Apr 6, 2013

bobmarley said: ↑

It looks its not just crazy Christians who believe it.
Click to expand...

Nope. There are all sorts of non-religious idiots and bigots. Just not as many, fortunately.

Invisible Fan · Apr 6, 2013

Marriages should be annulled or banned for the old and infertile. They clearly do not follow the opinion of the op.

Parsing the content made me want to read it less than if it were on one post. Nice try.

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