an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The same-sex marriage debate is a particularly intractable one, because, more than many other public policy issue, the two sides are unintelligible to one another. Opponents don’t see how same-sex couples can possibly be relevantly similar to opposite-sex couples; proponents don’t see how anyone could fail to perceive the similarity. So academic philosophers, who are particularly concerned with laying out all the moving parts of an argument clearly, have an important contribution to make to public discourse.
Robert George and his colleagues therefore have done us a service with their succinct and clear exposition of the case against same-sex marriage in their new paper, “What is Marriage?” The argument is not persuasive. But it is the clearest short statement of the case that they have offered. They now complain, with justice, that the most prominent response to their paper, by NYU Law Professor Kenji Yoshino, doesn’t really engage with any of their arguments. Here I will try to do better.
There isn’t a lot that’s new in the argument of “What is Marriage?” George and other proponents of what has been called the New Natural Law Theory have been making the same claims for years. I respond to them, with citations to the relevant work, here and here. What’s valuable about the new paper is that it pulls together the arguments in a way that is accessible to the general reader.
Their central claim is that marriage is essentially the permanent union of a man and a woman, and that this union is possible because men and women can biologically unite to form a unit of the reproductive kind. Infertile heterosexual couples can achieve this kind of union, but same-sex couples cannot.
This argument’s difficulties are immediately apparent: it is not clear that this kind of “organic bodily unity” actually exists, or that even if it did, it would have the intrinsic value they attribute to it. That is why the argument is barely comprehensible even to many people who share their views. Yoshino, unfortunately, never takes on any of the details of their arguments, but instead just summarily notes how weird and counterintuitive it is. George et al. are right to say that that response is unsatisfactory, and that Yoshino should have “given good reasons for rejecting our actual arguments, and provided his own answer to the central question of what marriage is.”
George et al. try to defend their position by showing the unacceptable implications of any contrary view. Their argument here, nicely summarized in their response to Yoshino, is that “the logic of recognizing same-sex partnerships as marriages undermines the rational basis of the very idea of marriage as a sexually exclusive and monogamous union” and that “the same argument for radically reforming marriage policy also undercuts the point of legally regulating marriage at all.” Their central goal, they explain, is to show “what marriage is, considered as a pre-legal reality that the state has good reasons to track (and that it hurts the common good to obscure).” And they are correct that Yoshino does not address these arguments at all, but merely stigmatizes some of the analogies they make.
Proponents of same-sex marriage, they argue on p. 250 of their article, must explain why it is legitimate to discriminate “against those seeking open, temporary, polygynous, polyandrous, incestuous, or bestial unions.” Those who propose to revise the traditional definition of marriage “will be forced to admit” that “marriage as such just cannot take these forms, or can do so only immorally.” This shows that “marriage is not a legal construct with totally malleable contours.”
As one of the revisionists they attack, let me respond specifically to this argument, which so far as I can tell is the only new move in the piece. I don’t think that I “will be forced to admit” what they say I have to admit. I have already specifically denied it in print. I don’t think that marriage is a prelegal reality. I think it’s just a construct that has developed over time, and that therefore can be changed by human beings if that seems best. They are aware of my response, because (at 266 n.56) they cite my book, The Gay Rights Question in Contemporary American Law. They don’t engage with the following passage, on pp. 91-92 of that book:
A proposal to modify marriage is ontologically similar to a proposal to modify the game of chess. Chess, too, “corresponds to no intrinsic reason or set of reasons at all,” if, again, this means a one-to-one correspondence between practices and goods. Consider a proposal to change the rules so that the rook can now move one space diagonally, in addition to the other moves it is already permitted to make. Well, you’ll say, if we adopted that rule we wouldn’t be playing chess any more; we’d be playing some other game. (I don’t follow baseball, but I’m told that a similar debate was undertaken some years ago, quite passionately, about the designated-hitter rule: “That’s not baseball!”) But perhaps this other game would be a better one than the one we play now. I don’t think that this question can be resolved by trying to figure out what the essence of Chess is. Chess hasn’t got an essence. Doubtless the present game of chess was developed through just such fiddling; perhaps someone once thought that the drunken reel of the knight was hostile to the essence of Chess. The question is what sort of chess rules are likely, under the circumstances, to best realize the good of play. (Actually, “chess” already denotes several different games. The dynamic is very different if you play with a chess clock.)
I elaborate the point in the next couple of pages of the book.
The fact that something is “a legal construct” does not entail that it has “totally malleable contours.” One analogy that may be helpful is immigration. National boundaries are entirely arbitrary constructions that divide human beings who are not essentially different from another. There are, however, good prudential reasons for having them, and the arguments against open borders are similarly prudential. The question of what kind of immigration law to have is a morally weighty one with massive human consequences, but one will not add clarity to the issue by imagining that citizenship is “a pre-legal reality that the state has good reasons to track.” All one can do is make the claim that this or that group of excluded people are so nearly identical to the ones who are included that it is arbitrary to leave them out, and that the consequences of doing so will not be bad. (That is the argument that has been made on behalf of the DREAM Act, which unfortunately was filibustered to death in the Senate today.) The arguments for extending the boundaries of marriage, but not infinitely, are similarly pragmatic. (On 275, George and his colleagues claim that their narrow view of marriage can be defended on purely pragmatic grounds, but the assertion is altogether summary and undefended. More elaborate arguments for this claim have been made by others, and I answer them in the two pieces I cite in the third paragraph above.)
Now, perhaps I am blind to the intrinsic good of heterosexual marriage. But the charge of blindness does not go in only one direction. They claim (281) that they argument for same-sex marriage falsely asserts that (1) fulfillment is impossible without regular outlets for sexual release and that (2) meaningful intimacy is impossible without sex. They are correct that these assertions are false. But the proposition that they are false does not entail the very different proposition, which they imply but do not assert, that (3) same-sex couples are not achieving a great human good when they have sex. It is obvious to me that they are in fact achieving such a good. George et al. do not perceive anything good here. On the contrary, they think that it would be better if every same-sex couple decided to permanently abstain from sexual activity, and more generally, if every person with a same-sex orientation determined to remain permanently celibate.
The reason why George and his colleagues are losing the cultural battle is that more and more Americans, and in particular younger Americans, find their claims not only false, but unintelligible. I don’t find them unintelligible, though it took a lot of work for me to make sense of them. (Here I gratefully acknowledge that when we were colleagues at Princeton years ago, Robby George kindly and patiently worked with me for months to help me understand how his argument fit together.) But they are false nonetheless.