What is marriage?
SHERIF GIRGIS,* ROBERT P. GEORGE,** & RYAN T. ANDERSON***
A Harvard University Study
Consider two competing views:
Conjugal View: Marriage is the union of a man and women 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 behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes 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.
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 union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize 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.
It has sometimes been suggested that the conjugal understanding of marriage is based only on religious beliefs. This is false. Although the world’s major religious traditions have historically understood marriage as a union of man and woman that is by nature apt for procreation and childrearing, this suggests 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 natural 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, using arguments that require no appeal to religious authority.
Part I begins by defending the idea which many revisionists implicitly share but most shrink from confronting that the nature of marriage (that is, it’s essential features, what it fundamentally is) should settle this debate. If a central claim made by revisionists against the conjugal view, that equality requires recognizing loving consensual relationships, were true, it would also refute the revisionist view; being false, it in fact refutes 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 positive case, based on three widely held principles, for what makes a marriage. Part I also show how the common good of our society crucially depends on legally enshrining the conjugal view of marriage 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 cannot explain (against a certain libertarianism) why the state should care enough about some relationships to enact any marriage policy at all, or why, if enacted, it should have certain features 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 provide 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 implementing 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 practicality (What about partners’ concrete needs?), from fairness (Doesn’t the conjugal conception of marriage sacrifice some people’s fulfillment for others’?), from naturalness (Isn’t it only natural?), and from neutrality (Doesn’t traditional marriage law impose controversial moral and religious views on everyone?).As this Article makes clear, the result of this debate matters profoundly for the common good. And it all hinges on one question: What is marriage?
A. Equality, Justice, and the Heart of the Debate
Revisionists today miss this central question what is marriage? Most obviously when they equate traditional marriage laws with laws banning interracial marriage. They argue that people cannot control their sexual orientation any more than they can control the color of their skin.6 In both cases, they argue, there is no rational basis for treating relationships differently, because the freedom to marry the person one loves is a fundamental right. The state discriminates against homosexuals by interfering with this basic right, thus denying them the equal protection of the laws.
But the analogy fails: antimiscegenation was about whom to allow marrying, not what marriage was essentially about; and sex, unlike race, is rationally relevant to the latter question.
Because every law makes distinctions, there is nothing unjustly discriminatory in marriage law’s reliance on genuinely 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 proponents 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 interracial marriage from being realized or recognized, in order to maintain the gravely unjust system of white supremacy.
By contrast, the current debate is precisely over whether it is possible for the kind of union that has marriage’s essential features 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 law and replace it with the revisionist conception. More decisively, though, the analogy to antimiscegenation fails because it relies on the false assumption that any distinction is unjust discrimination.
But suppose that the legal incidents 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, polygynous, polyandrous, polyamorous, incestuous, or bestial unions. 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 differences between these cases and same‐sex unions. Incest, for example, 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. Recognizing 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 contoursnot “just a contract.” Otherwise, how could the law get marriage wrong? Rather, some sexual relationships are instances of a distinctive kind of relationship call it real marriage 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 obligations between people, independently of legal enforcement. Thus, when some states forbade interracial marriage, they either attempted to keep people from forming real marriages, or denied legal status to those truly marital relationships.
Conversely, if the state conferred the same status on a man and his two best friends or on a woman and an inanimate object, it would not thereby make them really married. It would merely give the title and (where possible) the benefits of legal marriages to what are not actually marriages at all. Second, the state is justified in recognizing only real marriages as marriages. People who cannot enter marriages so understood for, say, psychological reasons are not wronged by the state, even when they did not choose and cannot control the factors that keep them single which is true, after all, of many people who remain single despite their best efforts to find a mate. Any legal system that distinguishes marriage from other, non-marital forms of association, romantic or not, will justly exclude some kinds of union from recognition.
So before we can conclude that some marriage policy violates the Equal Protection Clause, 12 or any other moral or constitutional principle, we have to determine what marriage actually is and why it should be recognized legally in the first place. That will establish which criteria (like kinship status) are relevant, and which (like race) are irrelevant to a policy that aims to recognize real marriages. So it will establish when, if ever, it is a marriage that is being denied legal recognition, and when it is something else that is being excluded.
As a result, in deciding whether to recognize, say, polyamorous unions, revisionists would not have to figure out first whether the desire for such relationships is natural or unchanging; what the economic effects of not recognizing polyamory would be; whether non-recognition stigmatizes polyamorous partners and their children; or whether non-recognition violates their right to the equal protection of the law. With respect to the last question, it is exactly the other way around: Figuring out what marriage is would tell us whether equality requires generally treating polyamorous relationships just as we do monogamous onesthat is, 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. There is only a presumptive right not to be prevented from forming a real marriage wherever one is possible. And, again, the state cannot choose or change the essence of real marriage; so in radically reinventing legal marriage, the state would obscure a moral reality. There is a tension here. Some revisionists say that marriage is merely a social and legal construct, but their appeals to equality undermine this claim.
The principle of equality requires treating like cases alike. So the judgment that same‐sex and opposite‐sex unions are alike with respect to marriage, and should therefore be treated alike by marriage law, presupposes one of two things: Either neither relationship is a real marriage in the above sense, perhaps because there is no such thing, marriage being just a legal fiction (in which case, why not justify apparent inequities by social‐utility considerations?), or both relationships are real marriages, whatever the law says about them. The latter presupposition entails the belief, which most revisionists seem to share with advocates of the conjugal view, that marriage has a nature independent of legal conventions. In this way, the crucial questionthe only one that can settle this debateremains for both sides: What is marriage?
B. Real Marriage Is and Is Only The Union of Husband and Wife
As many people acknowledge, marriage involves: first, a comprehensive union of spouses; second, a special link to children; and third, norms of permanence, monogamy, and exclusivity.14 All three elements point to the conjugal understanding of marriage; Marriage is distinguished from every other form of friendship inasmuch as it is comprehensive. It involves a sharing of lives and resources, and a union of minds and wills hence, among other things, the requirement of consent for forming a marriage. But on the conjugal view, it also includes organic bodily union. This is because the body is a real part of the person, not just his costume, vehicle, or property.
Human beings are not properly understood as non-bodily person’s minds, ghosts, consciousnesses that inhabit and use non-personal bodies. After all, if someone ruins your car, he vandalizes your property, but if he amputates your leg, he injures you. Because the body is an inherent part of the human person, there is a difference in kind between vandalism and violation; between destruction of property and mutilation of bodies.
Likewise, because our bodies are truly aspects of us as persons, any union of two people that did not involve organic bodily union would not be comprehensiveit would leave out an important part of each person’s being. Because persons are body‐mind composites, a bodily union extends the relationship of two friends along an entirely new dimension of their being as persons. If two people want to unite in the comprehensive way proper to marriage, they must (among other things) unite organically that is, in the bodily dimension of their being. This necessity of bodily union can be seen most clearly by imagining the alternatives.
Suppose that Michael and Michelle build their relationship not on sexual exclusivity, but on tennis exclusivity. They pledge to play tennis with each other, and only with each other, until death do them part. Are they thereby married? No. Substitute for tennis any nonsexual activity at all, and they still aren’t married: Sexual exclusivity with respect to a specific kind of bodily union is required. But what is it about sexual intercourse that makes it uniquely capable of creating bodily union? People’s bodies can touch and interact in all sorts of ways, so why does only sexual union make bodies in any significant sense “one flesh”?
Our organs our heart and stomach, for example are parts of one body because they are coordinated, along with other parts, for a common biological purpose of the whole: our biological life. It follows that for two individuals to unite organically, and thus bodily, their bodies must be coordinated for some biological purpose of the whole. That sort of union is impossible in relation to functions such as digestion and circulation, for which the human individual is by nature sufficient.
But individual adults are naturally incomplete with respect to one biological function: sexual reproduction. In coitus, but not in other forms of sexual contact, a man and a woman’s bodies coordinate by way of their sexual organs for the common biological purpose of reproduction. They perform the first step of the complex reproductive process. Thus, their bodies become, in a strong sense, one they are biologically united, and do not merely rub together in coitus (and only in coitus), similarly to the way in which one’s heart, lungs, and other organs form a unity: by coordinating for the biological good of the whole.
In this case, the whole is made up of the man and woman as a couple, and the biological good of that whole is their reproduction. Here is another way of looking at it. Union on any plane bodily, mental, or whatever involves mutual coordination on that plane, toward a good on that plane.
When Einstein and Bohr discussed a physics problem, they coordinated intellectually for an intellectual good, truth. And the intellectual union they enjoyed was real, whether or not its ultimate target (in this case, a theoretical solution) was reached assuming, as we safely can, that both Einstein and Bohr were honestly seeking truth and not merely pretending while engaging in deception or other acts which would make their apparent intellectual union only an illusion.
By extension, bodily union involves mutual coordination toward a bodily good which is realized only through coitus. And this union occurs even when conception, the bodily good toward which sexual intercourse as a biological function is oriented, does not occur. In other words, organic bodily unity is achieved when a man and woman coordinate to perform an act of the kind that causes conception.
This act is traditionally called the act of generation or the generative act; if (and only if) it is a free and loving expression of the spouses’ permanent and exclusive commitment, then it is also a marital act. Because interpersonal unions are valuable in themselves, and not merely as means to other ends, a husband and wife’s loving bodily union in coitus and the special kind of relationship to which it is integral are valuable whether or not conception results and even when conception is not sought.
But two men or two women cannot achieve organic bodily union since there is no bodily good or function toward which their bodies can coordinate, reproduction being the only candidate.16 This is a clear sense in which their union cannot be marital, if marital means comprehensive and comprehensive means, among other things, bodily.
2. Special Link to Children
Most people accept that marriage is also deeply indeed, in an important sense, uniquely oriented to having and rearing children. That is, it is the kind of relationship that by its nature is oriented to, and enriched by, the bearing and rearing of children. But how can this be true, and what does it tell us about the structure of marriage?
It is clear that merely committing to rear children together, or even actually doing so, is not enough to make a relationship a marriage to make it the kind of relationship that is by its nature oriented to bearing and rearing children. If three monks agreed to care for an orphan, or if two elderly brothers began caring for their late sister’s son, they would not thereby become spouses. It is also clear that having children is not necessary to being married; newlyweds do not become spouses only when their first child comes along. Anglo‐American legal tradition has for centuries regarded coitus, and not the conception or birth of a child, as the event that consummates a marriage.
Furthermore, this tradition has never denied that childless marriages were true marriages. How, then, should we understand the special connection between marriage and children? We learn something about a relationship from the way it is sealed or embodied in certain activities. Most generically, ordinary friendships center on a union of minds and wills, by which each person comes to know and seek the other’s good; thus, friendships are sealed in conversations and common pursuits. Similarly, scholarly relationships are sealed or embodied in joint inquiry, investigation, discovery, and dissemination; sports communities, in practices and games.
If there is some conceptual connection between children and marriage, therefore, we can expect a correlative connection between children and the way that marriages are sealed. That connection is obvious if the conjugal view of marriage is correct. Marriage is a comprehensive union of two sexually complementary persons who seal (consummate or complete) their relationship by the generative act by the kind of activity that is by its nature fulfilled by the conception of a child. So marriage itself is oriented to and fulfilled by the bearing, rearing, and education of children. The procreative‐type act distinctively seals or completes a procreative‐type union. Again, this is not to say that the marriages of infertile couples are not true marriages.
NOTES: Part II coming soon
