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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Prof. Robert George of Princeton, on the Mirror of Justice blog (a first rate blog of Catholic legal theory), responds here to a paper I recently posted on SSRN. Robby (an old friend from my days teaching at Princeton) thinks that my defense of same-sex marriage is incoherent. I think the incoherence lies in his opposition to it.
You’ll have to decide which of us is right.
Here’s the abstract of the paper, Careful With That Gun: Lee, George, Wax, and Geach on Gay Rights and Same-Sex Marriage:
Many Americans think that homosexual sex is morally wrong and oppose same-sex marriage. Philosophers trying to defend these views have relied on two strategies. One is to claim that such sex is wrong irrespective of consequences: there is something intrinsic to sex that makes it only licit when it takes place within a heterosexual marriage (in which there is no contraception or possibility of divorce). Patrick Lee and Robert P. George have developed and clarified this claim. The second strategy focuses on consequences: the baleful effects on heterosexual families of societal tolerance for homosexuality. Amy Wax (who is not a clear opponent of same-sex marriage, but who is worried by it) has tried to array evidence to support the second. Mary Geach has developed a novel hybrid, relying on the second argument to support the first one. Both strategies fail. The first cannot show that the intrinsic goodness of sex is at once (a) derived from its reproductive character and (b) present in the coitus of married couples who know themselves to be infertile, but not present in any sex act other than heterosexual marital coitus. As for evidence of bad consequences of tolerance of homosexuality, the evidence is all the other way.
I specifically cast doubt on the claim made by Robby and others that the intercourse of infertile heterosexual couples is “oriented to procreation.” I write:
My action can make sense as part of a process, can take its meaning from its role in facilitating that process, only if the process is known to be capable of completion. This is true even if the success of the project is unlikely. But it is not true if success is impossible. A surgeon trying to save the life of a gravely sick patient is engaged in the practice of medicine even if the patient‟s death is almost certain. No guarantee of success is necessary. (Little human endeavor comes with a guarantee of success.) So long as the patient is alive and the surgery even marginally increases the likelihood of the patient's survival, then the surgeon's behavior makes perfect sense. He is engaged in a medical-type act. Whether it is a medical-type act now cannot depend on events that occur only later, such as the patient's recovery. But what would we think if the surgeon performed exactly the same actions, involving the same bodily motions, when the patient is already dead?
Robby now challenges me to explain why my defense of same-sex marriage doesn’t entail endorsement of polygamy: “the redefinition of marriage to remove the element of sexual complementarity perforce eliminates any ground of principle for supposing that marriage is the union of two persons, as opposed to the union of three or more in a polyamorous sexual partnership.” How can my endorsement of same-sex marriage avoid this result?
As it happens, I don’t have strong views on the polygamy question. I don’t think my views on same-sex marriage entail anything about polygamy, either way. I take marriage for granted as a social institution that we’ve inherited, and I try to see whether there is any coherent reason for excluding same-sex couples from that institution. I don’t think that I need to think my way through the polygamy problem in order to address Robby’s challenge.
But let’s stipulate, for the sake of argument, that polygamy is bad and there is a sound argument against it. Call it the Compelling Antipolygamy Argument. Robby’s claim is that (1) his conception of marriage is the Compelling Antipolygamy Argument, (2) his conception can explain why polygamy is wrong, and (3) his conception also condemns same-sex marriage. (Incidentally, I don’t see how, even if one stipulates (1), you can get from there to (2), since a man can have relationships which are oriented to procreation with more than one woman.)
Implicit in his challenge is the claim that there is no sound argument that excludes polygamy without also excluding same-sex marriage. I don’t know if that is true. But I don’t need to know, because it’s enough to show that (1) cannot be the case. This is because (1) posits an entity - the one-flesh union of male and female in an act of procreative kind, which comes into existence even in the union of the infertile heterosexual couple - that is not intelligible. Its unintelligibility casts doubt on its existence. Whether or not there is a Compelling Antipolygamy Argument, this can’t be it.
It is as if someone were to argue that (1) Beethoven’s Second Symphony has polka dots, and then claims (2) that it follows from this that polygamy is wrong. It’s mysterious how (2) follows from (1), but the argument doesn’t even get that far, because (1) doesn’t make a lick of sense. We can stop there.
(I should add, in closing, that having Robby as a colleague was one of the best things about being on the Princeton faculty, and that I’m very pleased to be duking it out with him again.)