Posted: November 4, 2013
he question before the Supreme Court this spring, in two cases, was whether marriage, in its most intelligible and morally coherent form would survive the judges. And now, with the decisions in U.S. v. Windsor and Hollingsworth v. Perry, we know the answer. Thanks to Justice Anthony Kennedy, it has not survived. We will be entering a new regime of law, as the decisions on marriage radiate outward, with the most unsettling effects on personal relations, and the most corrosive pressures on religious freedom. In the name of new, expansive liberties, the powers of the state will be extended in their reach. This new ethic must be taught in schools and respected in religious institutions. It must be enforced on many people in ordinary walks of life who may be inclined, in many small and practical ways, to withhold their respect. They might innocently withhold their moral acceptance of this new order of things by refusing to act as caterers, or take photos, at same-sex weddings.
The cases on marriage were argued before the Supreme Court at the end of March. Savvy followers of the Court, listening to the arguments, came away with the sense that the judges wanted some decorous way to get out of deciding these cases. There was a hovering sense that, even in a panel graced by some of our accomplished friends, this group of nine lawyers could not really summon, as a collegial body, the wisdom that would be necessary, either in framing this issue, or in offering a coherent defense of marriage as an institution. It was a telling sign of the political state of things that the conservative commentators, such as Michael McConnell, were hoping to get out of the problem by invoking tests of "standing to sue." Or just about anything that would avoid a momentous decision, possibly giving us another Roe v. Wade(1973).
But with these moves the conservatives betrayed the sense that theirs was the losing side. With their Burkean reflexes triggered yet again, they were ready to engage in their usual retreat, hoping to avoid losses ever deeper. And as ever, with this Burkean act of stylish receding, the conservatives spend their genius in contriving paths of retreat. What they do not do is summon their wit to give a moral defense of the conservative position—in this case, a moral defense of marriage.
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That is, of course, what Robert George, Ryan Anderson, and Sherif Girgis sought to do in their monograph, What Is Marriage?, in assembling the most compelling arguments they could marshal. And it may be telling that the book was cited in the cases on marriage only by Justice Samuel Alito in a dissenting opinion in Windsor, but without recalling any of the arguments that George and his students had so carefully composed. Justice Alito was merely reporting to readers that serious arguments had indeed been assembled. He was posing that simple point against the brute willingness of Justice Kennedy and his colleagues to write as though there were no rational arguments on that side to be taken seriously, only expressions of irrational hatred, a will to demean and degrade.
One of the most accomplished appellate lawyers I know listened to the arguments over Proposition 8 in California and recorded a certain distress. Somehow, he said, the arguments never got to "the guts of the issue." Charles Cooper, arguing for the votaries of Proposition 8, tried to put the issue of marriage beyond the manipulation of their judges in California. Justice Elena Kagan brought him sharply to the main question when she challenged the notion, evident to common sense, that the laws of marriage established a framework of commitment to envelop the begetting and nurturing of children. Kagan offered the example of people marrying at the age of 55, not to say people of advanced age, long past the time of begetting and childbirth. Cooper sought to answer by remarking that "even with respect to couples over the age of 55, it is very rare that...both parties to the couple are infertile." The response evidently did not produce that effect, felt throughout the room, that the challenge had been decisively met and put away, never to be heard again. That challenge was familiar, but something else had to be said, and it could not be simply that "most of the time" the sexual relations of men and women could bring forth children. If some men and women entered marriage, quite incapable of having children or quite resolved to close themselves off to children, the question would of course be asked again: why should their version of "sexuality" be recognized in "marriage" while the sterile relations of gay and lesbian couples would not be? Something had to be said to show why there was something in principle right and good about this form of marriage, something that would not be impaired by the fact that the partners did not happen to beget children.
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That is precisely the point that George, Anderson, and Girgis have taken as the inescapable core of the argument. The trio had put forth their argument initially in a long essay in the Harvard Journal of Law & Public Policy. That they had struck a nerve was shown by the ferocity of the attacks they drew. Those attacks rarely engaged their argument, but the authors showed to their critics a respect unreciprocated, for they proceeded to expand their arguments in response to their critics. And that is how this book was shaped.
Robert George's style over the years has not been to nip away at the edges of a fierce moral and political controversy, but to sail directly into the winds. His operating mode has been to force an engagement of the argument at its central and hardest point. George is the McCormick Professor of Jurisprudence at Princeton University, the chair once held by Woodrow Wilson. Anderson and Girgis, his former students, have joined him here with fine writing—and in drawing the fire again of their adversaries. Over the last several years gay activists have taken up Justice Kennedy's line from Lawrence v. Texas (2003) that any reservations about the homosexual life must spring from an irrational "animus," and therefore the conservative position can offer no reasons, claim no rational ground. With those premises in place, the activists have been content, not to offer arguments, but to carry the day by hurling the epithets of "bigotry" and "homophobia." In the face of these calumnies, George and his co-authors seem to have inflamed their opponents even further by insisting that they are appealing to nothing less than reasons, precisely and strenuously explained. In that vein, they have pointed out that they "offer no religious arguments," no appeal to revelation or faith. They also detach themselves from the familiar tic of conservatives, by declining to defend marriage merely as "traditional marriage." The question, as ever, is whether the notion of marriage as the union of a man and woman is good because it is traditional, or whether we have made it traditional because there is something enduringly good about it. As the authors say, their purpose is to show that the "conjugal marriage laws are...rationally grounded," that the conjugal relation between a man and woman offers the only coherent moral account of marriage. That moral account, they insist, can also be detached from any argument about the moral rightness or wrongness of homosexuality itself. Even in ancient Greece, where homoerotic relations were hardly shunned among the best and the brightest, "nothing like same-sex marriage was even imagined."
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No one could doubt homoerotic love, as no one could doubt the true love between two men or two women. Nor could one doubt the love that subsists between parents and children, or grandparents and grandchildren. In the very nature of things, we could submit that nothing in that parental love can possibly be a diminished or lesser love because it is not attended by penetration and expressed in marriage. George, Anderson, and Girgis join the argument, then, that it is radically insufficient to make the case for marriage on the basis simply of "intimate, loving relations." The critics of same-sex marriage point out that that formula could be met quite as well by a father and son, a mother and daughter. But it could also be met by two sisters seeking to raise an orphaned nephew, or by two widows seeking to share their Social Security and pay off the medical bills for their late spouses. The question has been posed sharply to the advocates of same-sex marriage as to why these couplings would not qualify for a same-sex marriage. But to the activists, this expansion of the notion of marriage would remove the label precisely from the erotic relation that they regard as central and defining for the homosexual life. And yet, how would we know that any of these same-sex couples had an erotic relation? The Supreme Judicial Council in Massachusetts in Goodridge v. Department of Public Health (2003) insisted that the law could no longer require "consummation" as the test of a procreative and legitimate marriage. Those judges in Massachusetts might not have been overflowing with genius, but even they are not likely to say that consummation is quite unnecessary now in the relation between a man and a woman, but absolutely necessary in a same-sex marriage!
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And so, as Robert George has been arguing for years now, the matter must come down, inescapably, to that matter of sex. It is not solely the sharing of pleasure, for many pleasures can be shared, and as the writers observe, "if spraying oxytocin at your partner increased her pleasure and attachment to you, that would not make it fungible with sex as an embodiment of your marriage." A man and woman may share deep thoughts for years, and come to depend on each other emotionally; and still, it would not quite be a marriage. Embodiment is ever the key. For the individual person as well as the couple, we are souls embodied. As the writers argue, marriage is that rare union of souls matched in a bodily act of uniting, and it cannot be just any bodily act, with the connecting of just any parts. There is a certain bodily act that has about it a meaning, even a telos, that other acts do not. And that act will always be freighted with that meaning. How else would we explain why a rape will still have for us the same meaning, even when we learn that the victim was sterile or incapable of bearing children? The act of rape cannot be reduced merely to another bodily assault, or explained solely as an act of force. There is something about that penetration uninvited that marks a special offense, for that bodily act cannot shed a function, or meaning, that gives it a transcendent purpose apart: the generation of new life. In the same way that the parts of the body are integrated to a functioning body, the writers argue that this natural, conjugal act—this joining of the bodies in coitus—marks the distinct integration of a man and woman, as a "one flesh union." This is the way in which two people form a reproductive unit, in the defining purpose or meaning of sexuality, the act of begetting. It is the meaning of "sex" in the strictest sense—the precise meaning that Bill Clinton had in mind when he swore, in the truest line he ever spoke—that he "did not have sexual relations with that woman."
People speak too casually of marriage as pre-existing the law, in a natural state. But marriage has always been bound up with the commitment, the binding quality, that is distinctly supplied by the law. And that may explain the wisdom contained in Aristotle's line that "the polis is prior in the order of nature to the family." People may have sex when governments break down; but the naming and permanence of "families" is bound up with the laws. As the late Allan Bloom put it, "The law that gives names to families and tries to insure their integrity is a kind of unnatural force and endures only as long as does the regime of which it is a part."
There is, then, the most natural of correspondences: that particular act of bodily uniting has, as its natural result, the creation of a new life, combining the features of both partners genetically. The new being is unique, with a genetic definition different from that of either parent. And yet, in the very miracle of sex and marriage, the child combines the features drawn from both parents. He embodies that "marriage" from which he springs. Many years ago, in a playground in Georgetown, my younger son Jeremy was on a swing, and I suddenly saw, at different moments, reflections of my mother's father and mother, quite beloved to me. They had died long before he was born, but Jeremy was a living monument to a love that long preceded him, and prepared the way for bringing him forth.
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And yet...this has proved, for some reason, the hardest part of the argument to explain. It is the part that elicits, from the critics of George and his former students, the jeering and disbelief; and it is the part that even Charles Cooper found awkward to broach when he was challenged by Justice Kagan. But as George, Anderson, and Girgis would ask: how could the connections be clearer? The sexual act—the coital act—of a man and woman, has the natural telos or purpose of begetting, and it is directed then clearly to the life of a family that embodies their union. As the writers note, the "revisionist" view of marriage "would teach that marriage is about emotional union and cohabitation, without any inherent connections to bodily union or family life." A family is a combination of biology and moral commitment, the commitment to sustain and nurture. The law makes that sense of commitment real and operational: it marks the fact that the participants have waived their freedom to quit each other as it suits their convenience.
Some writers contend that same-sex marriage might domesticate homosexual sex, or give to gay and lesbian couples a critical standing and stability. Others argue that it would lead to a further unraveling of marriage, as it removes the defining features that have given marriage its distinct character as a thing to be coveted and preserved. But that is a matter of prediction and conjecture. What George, Anderson, and Girgis seek to show is why this form of marriage, as we've known it, is in fact the right form, the most defensible form, in principle. But their bet is that the unraveling is more likely to take place precisely because a radical revision of the laws will remove marriage from the only form that gives the institution its explanation and its moral coherence.
And yet again we may ask, why has all of this suddenly become so hard to explain to people with college educations? Could it be that it has taken two generations of what we now call "higher education" to tutor students in "theories" that somehow make it harder for them to see what is plainly before their eyes? These are the things that ordinary people have had no trouble in grasping even when they couldn't explain them, because the connections were so evident and the reasons so accessible to common sense. They were things easier to grasp because they were, to use an older word, the most natural things.