Windsor: Lochnerizing on marriage?

• Author: Girgis, Sherif
• Position: Continuation of IV. Legitimacy through Conclusion, p. 999-1026

1. Value Judgment Defense

   The anthropological evidence of a nearly perfect global consensus on sexual complementarity in marriage and certain philosophical and legal traditions support two conclusions. (125) First, no particular religion is uniquely responsible for the Traditional View. And second, it cannot be ascribed simply to a purpose to discriminate against gays and lesbians, for that view--and the Value Judgment Defense in particular--has prevailed in societies that have spanned the spectrum of attitudes toward homosexuality, including ones favorable toward same-sex acts, and others lacking our concept of gay people as a class. (Whatever suffices to prove discriminatory purpose against a class, ignorance of the class as such surely disproves it.) Some philosophical and legal conceptions of marriage have even excluded certain opposite-sex bonds (through no choice of their own), which further undermines the idea that they were targeting gays and lesbians.

   In this Section, then, I offer historical and philosophical points to show that the Value Judgment Defense cannot have arisen out of anti-gay animus, that a reasonable case can be made for it, and that something like it motivated DOMA. In the next Section, I offer a reasoned case for the General Welfare Defense.

   1. Intellectual and Legal Traditions

      The Value Judgment Defense could not have originated in bigotry. Its history belies that idea. Several classical ancient thinkers--including Xenophanes, Socrates, Plato, (126) Aristotle, (127) Musonius Rufus, (128) and Plutarch (129)--developed ethical frameworks that found special value in bonds embodied in coitus and uniquely apt for family life. (130)

      These thinkers were not influenced by Judaism or Christianity. Nor were they all ignorant of same-sex sexual relations, which were common, for example, between adult and adolescent males in Greece. Quite apart from motives of religion, ignorance, or hostility toward anyone, they reasoned toward the view that male-female sexual bonds have distinctive value.

      Indeed, the philosophical and legal principle that only coitus could consummate a marriage arose when the only other acts being considered were ones between a married man and woman. It is virtually impossible that this standard (or the views just mentioned) was motivated by animus against gays and lesbians, especially as these thinkers worked in contexts that lacked our concept of gay identity. (131) Even in cultures favorable to same-sex sexual conduct, the Traditional View has prevailed--and nothing like the Revisionist was imagined.

      For hundreds of years at common law, moreover, infertility was not grounds for declaring a marriage void, (132) and only coitus was recognized as completing a marriage. (133) What could make sense of these two practices?

      If marriage were regarded as merely a legal tool for keeping parents together for children, clear evidence of infertility (like old age) would have been a ground for voiding a marriage. Or if the law were just targeting same-sex bonds for exclusion, it would have counted any sexual act between a man and woman as adequate to consummate a marriage. Instead, the law reflected the rational judgment that those unions of hearts and minds extended along the bodily dimension by coitus were valuable in themselves, and different in kind from other bonds: the Value Judgment Defense.

   2. Philosophical Account

      So history suggests that something besides religion and animus can motivate the Value Judgment Defense. That is reinforced by the fact that arguments can be and have been made to defend this view, as reasonable and coherent, not just historically prevalent. (134)

      Here I summarize my own (coauthored) philosophical efforts over several years to defend a specific version of the Traditional View, namely, the conjugal view--an effort that draws on some of the classical thinkers mentioned above. (135)

      This philosophical account begins with an Aristotelian point: people enter a voluntary relationship by committing to engage in certain cooperative activities, which aim at certain shared goods. And they do so in. the context of a commitment marked by norms appropriate to those shared activities and goods.

      This is what creates a voluntary relationship, or union, or community: a group's commitment to pursue given goods through certain activities while observing certain norms. What sets the community of marriage apart, on this account, is that it is comprehensive in these three defining respects: unifying activities, unifying goods, unifying commitments. It is comprehensive, that is,

      (a) in the basic dimensions in which it unites two people (mind and body); (136)

      (b) in the goods with respect to which it unites them (procreation, and hence the broad domestic sharing fit for family life); (137) and

      (c) in the kind of commitment that it calls for (permanent and exclusive). (138)

      1. Comprehensive Unifying Acts: Mind and Body

         If marriage unites partners in body as well as mind, what makes for bodily union? Many on both sides of the marriage debate would say sex. But why? It can foster or express emotional closeness, but so can other activities. Why is sex crucial for bodily union, and thus for marriage?

         On the philosophical view sketched here, the answer begins, again, with a more general account. What makes for unity is "activity toward common ends. Two things are parts of a greater whole--are one--if they act as one; and they act as one if they coordinate toward one end that encompasses them both." (139)

         The same goes for bodily union. Thus, your organs form one body because they are coordinated toward the one biological end of sustaining your biological life.

         Just so, two people unite bodily when they are "coordinated] toward a common biological end of the whole." (140) That happens only in coitus. In that first step of the reproductive process, a man and a woman are coordinated toward a biological end (reproduction) of the whole (the couple). Achieving the end would deepen the bodily union, but the coordination is enough to create it.

         Yet no other act between two people involves coordination toward a single biological end. So this conception of marriage as comprehensive union--which suggests that marriage must involve the partners' bodily union, which in turn is modeled on bodily union within an individual--provides a basis for affirming (inter alia) that only a man and woman can form a marriage.

      2. Comprehensive Unifying Goods: Procreation and Domestic Life

         Again, then, marriage unites partners in body and mind, and is in that sense uniquely encompassing or comprehensive. But because it is oriented to children and family life, marriage also uniquely calls for the wide-range sharing of domestic life.

         The connection between marriage and parenthood is intuitive, but easily misunderstood. Of course children are not sufficient to create marriage, but they are also not necessary. Yet, many think, the prospect of children shapes the norms and expectations of married life. The philosophical account I defend explains why. "Procreation ... fulfills and extends a marriage, because it fulfils and extends the act that most embodies a marriage: [coitus], the generative act." (141)

         That is, coitus by its nature (i.e., apart from people's subjective goals) is a coordination toward procreation. So the act that makes marital love is also the kind of act that makes new life. Thus marriage itself--the relationship most embodied by that act--is extended by children where they come, and in all cases by the wide-range sharing of domestic life uniquely apt for family life.

         But this inherent orientation to family and domestic life is unique to male-female conjugal bonds. Any connection to family life in other pairings or groups is just a matter of the partners' choice to band together to rear children--which can occur even in non-romantic bonds (say, between a widowed mother and her sister who moves in to help rear the child). Only for male-female conjugal bonds is there an inherent connection to fulfillment in family life. (142)

         So this second sense in which marriage is reasonably seen as comprehensive--that it is inherently oriented to the comprehensive sharing of domestic life--also provides a reasonable basis for affirming that only a man and woman can form a marriage.

      3. Comprehensive Commitment: Norms of Permanence and Exclusivity

         Finally, on this account, the kind of commitment people should pledge in a given bond, depends on its defining forms of cooperation and shared goods. Thus, a bond comprehensive in the above two senses--in the dimensions of the partners united (body and mind), and in the range of goods toward which they are united (all domestic life)--inherently calls for comprehensive commitment. Through time, that means permanence; at each time, exclusivity. (143)

         This requirement of comprehensive commitment rationally fits the idea of marriage as comprehensive union, but it also serves a crowning good of marriage--procreation--by excluding infidelity and divorce.

         Other groups (two men, two women, any three or more) cannot form a bond comprehensive in the two senses mentioned, and hence have no objective basis to decide to pledge total commitment (as opposed to whatever they might prefer). (144)

         In short, a single concept--comprehensive union--can give coherence to the features of marriage that many people on both sides of the debate want any account to preserve: permanence, exclusivity, sexual union, a link to family life. Yet that same conception of marriage also implies that marriage is possible only in male-female bonds.

         This makes it even less likely that various cultural and intellectual traditions converged on the special value of opposite-sex bonds only by religion or animus or accident. Rather it suggests reasonable grounds for affirming that value, based on understandings of marriage shared by both sides of the traditional-revisionist debate.

   3. DOMA's Particular...