What is marriage?

AuthorGirgis, Sherif
PositionTwenty-Ninth Annual Federalist Society National Student Symposium: Originalism
  1. A. Equality, Justice, and the Heart of the Debate B. Real Marriage Is--And Is Only--The Union of Husband and Wife 1. Comprehensive Union 2. Special Link to Children 3. Marital Norms C. How Would Gay Civil Marriage Affect You or Your Marriage? 1. Weakening Marriage 2. Obscuring the Value of Opposite-Se Parenting As an Ideal 3. Threatening Moral and Religious Freedom D. If Not Same-Sex Couples, Why Infertile Ones? 1. Still Real Marriages 2. Still in the Public Interest E. Challenges for Revisionists 1. The State Has an Interest in Regulating Some Relationships? 2. Only if They Are Romantic? 3. Only if They Are Monogamous? F. Isn't Marriage Just Whatever We Say It Is? II A. Why Not Spread Traditional Norms to the Gay Community? B. What About Partners' Concrete Needs? C. Doesn't the Conjugal Conception of Marriage Sacrifice Some People's Fulfillment for Others'? D. Isn't It Only Natural? E. Doesn't Traditional Marriage Law Impose Controversial Moral and Religious Views on Everyone? CONCLUSION 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 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. (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 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. (2)

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, (3) 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. (4)

Part I begins by defending the idea--which many revisionists implicitly share but most shrink from confronting--that the nature of marriage (that is, its 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, (5) 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 shows 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 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 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?

I

  1. 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. (7) The state discriminates against homosexuals 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 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. (9)

    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 (10) 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 contours--not "just a contract." Otherwise, how could the law get marriage wrong? Rather, some sexual relationships are...

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