The most incisive guide to issues facing the American family today . . . An invaluable resource for anyone wishing to stay on the cutting edge of research on family trends.
-W. Bradford Wilcox
Associate Professor of Sociology, University of Virginia
In june, Justice Samuel Alito dissented from the majority opinion of the U.S. Supreme Court that held a law that retained the definition of marriage as a husband and wife for federal law purposes was unconstitutional. The majority concluded that such a law could be understood only as an expression of “animus” and so was per se invalid.
Justice Alito, however, recognized that something more was at work. He noted that the case involved competing understandings of marriage. On the one hand was the understanding that “marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” On the other, the assertion was that marriage is “the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons.”
The majority had, without saying so, adopted the novel conception. It does so through a syllogism. (1) The Supreme Court has ruled that private sexual relations between persons of the same-sex cannot constitutionally be prohibited. (2) New York sought to give “dignity” to these relationships by redefining marriage to include them. (3) Congress’ decision not to grant benefits based on the legal status New York created can only be explained by animus. (4) Laws meant to promote animus are invalid. (5) The law retaining the old definition of marriage for federal law purposes was unconstitutional.
This approach can only make sense once one has already adopted an understanding of marriage as the emotional association of persons.
In describing the conception reflected in the law Congress enacted, Justice Alito pointed to an important new book, What is Marriage?, written by Sherif Girgis, Ryan Anderson and Robert George, each an important intellectual defender of what Justice Alito called the “conjugal” view of marriage. The book builds on an important article published in the Harvard Journal of Law and Public Policy, an article which is the fifth most downloaded on the Social Science Research Network.
That the book has drawn so much attention and even the notice of the U.S. Supreme Court is not surprising. It is not just that the book is representative of philosophical arguments for marriage as the union of a husband and wife but that it makes this case in such a concise and forceful way. It is certainly the best resource of its kind.
The authors admirably frame the debate over the meaning of marriage between two ways of answering the question in the book’s title. They describe the ideal of marriage they are defending:
Joining spouses in body as well as in mind, it is begun by consent and sealed by sexual intercourse. So completed in the acts of bodily union by which new life is made, it is especially apt for and deepened by procreation, and calls for that broad sharing of domestic life uniquely fit for family life. Uniting two spouses in these all-encompassing ways, it also objectively calls for all-encompassing commitment: permanent and exclusive. Comprehensive union is valuable in itself, but its link to children’s welfare makes marriage a public good that the state should recognize and support.
Rejecting this ideal, the authors explain, will have consequences:
If the law defines marriage to include same-sex partners, many will come to misunderstand marriage. They will not see it as essentially comprehensive, or thus (among other things) as ordered to procreation and family life—but essentially an emotional union. . . . they will therefore tend not to understand or respect the objective norms of permanence or sexual exclusivity that shape it. Nor, in the end, will they see why the terms of marriage should not depend altogether on the will of the parties, be they two or ten in number, as the terms of friendship and contract do.
(This is a minor point, but I am not sure it makes sense to speak, as the authors do, of this new understanding of marriage as an “emotional union” rather than an emotional association, since there is nothing particularly binding about a contingent joining together of two—and maybe more later—people for an indeterminate purpose with negotiable terms.)
One of the most important insights the book develops is this notion that marriage is a “comprehensive union” encompassing the union of mind, body, procreation, family, and home life, and all of these “permanently and exclusively.” This reality explains why across time and across cultures, something like a marriage institution has persisted as the publicly recognized uniting of a man and a woman with an unmistakable link to procreation and rearing of children.
By contrast, efforts to make marriage “inclusive” by removing core elements like permanence and sexual complementarity has yielded a “pointless” personal arrangement. The authors demonstrate effectively that the “logic of rejecting the conjugal conception of marriage . . . proposes a policy for which it can hardly explain the benefit.”
Redefining marriage to encompass a set of relationships which cannot, in reality, involve the comprehensive union that is the very nature of marriage is more than just conceptually pointless, however. In fact, depriving marriage of normative content will create predictable harms. Specifically, weakening the legal conception of marriage makes the ideals marriage is intended to promote (including such elements as permanence and exclusivity) harder to realize and less likely to even be recognized as ideals. It also makes mothers or fathers “superfluous”—as it must—in order to advance the fiction that motherless and fatherless homes are not different in any significant way from homes headed by a married mother and father. It will create far more opportunities for conflicts between anti-discrimination policies and religious exercise in which the latter will be forced to yield to the logic of “marriage equality”—an opposition inherently spiteful and invalid.
The authors’ responses to objections is particularly illuminating in at least two ways, one intended and the other perhaps inadvertently.
The responses themselves are very effective. They address the idea that redefining marriage will impose “traditional marital norms” on a greater number of relationships by pointing out that “people tend to abide less by any given norms, the less those norms make sense.”
They patiently explain how recognizing marital unions in which the husband and wife do not have children (the preferred “gotcha” of marriage redefiners) “has none of the costs of recognizing same-sex, polyamorous, or other nonmarital unions” while still contributing to “a strong marriage culture.” Indeed, “infertile unions,” they note, are “true marriages, comprehensive unions” which provide a “special benefit” of reminding us that “marriage has value in itself,” a “truth, crucial for healthy and stable marriages generally.”
The authors also effectively address concerns about practical legal benefits provided by default to married couples and the objection that without redefining marriage, people in nonmarital relationships will be deprived of dignity, among other concerns. There is even an appendix devoted to responding to the bizarre claim that there is no such thing as a bodily union.
What is most illuminating, however, is not just the content of the responses to objections but the erratic and contradictory nature of the objections themselves. Most obvious is the fact that redefining marriage to reject the ideal of comprehensiveness is promoted as a “risk free” innovation that will change nothing. Besides the fact that this is not true (as some candid supporters of same-sex “marriage” freely admit), how can it possibly be squared with the claims that redefining marriage will produce all kinds of positive results? On one hand, those favoring redefinition taunt those who are hesitant with the slogan that it will not affect your marriage, but, on the other hand, claim that redefining marriage will confer unprecedented dignity on previously marginalized groups and also serve to tame male promiscuity. Those are significant consequences of a purportedly consequence-less change.
There is a humorous scene in the 1987 film The Princess Bride where one character insists an eventuality (being caught by a pursuer) is “inconceivable.” Nearly overtaken by the pursuer, and reality, a companion of this character responds to yet another “inconceivable” by saying, “You keep using that word. I don’t think it means what you think it means.”
This exchange seems apt to the debate over the meaning of marriage. What does the word “marriage” mean? Does it denote a reality that goes to the very essence of what it is to be human? Or is it a pointless construct that can be remodeled at will to advance a project of social engineering in service of abstractions like “equality” or “dignity”?
The authors of this book and their allies have made clear that “marriage” is not just a personal emotional arrangement. Increasingly assertive elites in entertainment, politics, and academia strenuously deny this, purposefully obscuring the familiar, ordered, indeed natural, realities that give rise to the marriage institution. But saying something, even in an authoritative tone and even with a threat of obloquy and ostracism, will not make it so. Marriage is not a construct; it is an “intrinsic good” rooted in natural realities that cannot be easily effaced, certainly not without bitter consequences.
Sherif Girgis, Ryan Anderson and Robert George have done a great service in describing and defending these realities. They have given the only satisfactory answer to the question raised in their title. That their defense has been ignored by five justices on the U.S. Supreme Court is distressing, but even judges can drive nature out with a pitchfork only for a time.
William C. Duncan is the director of the Marriage Law Foundation.