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
Kenji Yoshino is right that I misunderstood his rejoinder to the case against same-sex marriage made by Robert George and his coauthors (hereinafter “George” for short), and he ably explains why that rejoinder is more substantial than I took it to be. His (accurate) claim is that George’s definition of marriage is underinclusive. But I still think he and George are talking past each other. To see why, we have to get into some fairly technical philosophy.
I have good news and bad news for Yoshino. The bad news is that he needs to get into these technical philosophical issues in order to show why his objections are effective, and because he does not do so, his argument is incomplete. The good news, much more important, is that if one digs into these philosophical recesses, it becomes clear that Yoshino has exposed to view a central reason why George’s argument is nearly impossible to believe.
Yoshino argues (all these quotes are from Yoshino's post or his Slate post to which he provides links) that George’s understanding of marriage as involving relations that are essentially procreative “demeans the marriages of many opposite-sex couples who do not give birth to biological children, including infertile couples, couples who have chosen not to have children, couples who have adopted, and couples who have used reproductive technologies to create their families.” And this underinclusiveness is fatal to George’s argument: “you cannot argue that a principle justifies the exclusion of same-sex couples from marriage if that principle also excludes individuals you are committed to keeping inside the institution.”
From George’s standpoint, however, all of the couples on Yoshino’s list have fully genuine marriages. Heterosexual couples who do not produce children via coitus, but who nonetheless engage in heterosexual sex, are forming a unit of the procreative kind – one that is essentially procreative, though accidentally procreative.
George’s whole argument, as I’ve explained elsewhere, depends on this unprovable application of Aristotle’s essence/accident distinction. If you grant George that distinction and its application here (in fact you should concede neither), then he has no trouble at all saying that all of these couples are full and genuine marriages. Such couples, Yoshino writes in Slate, “must compare unfavorably to couples who have fulfilled the supposed central object of marriage.” But George can respond that the central object of marriage is forming units of the procreative kind, and these infertile couples do completely fulfill that object. Yoshino asks: “Why deem the sexual intimacy of an infertile couple to be a totally separate activity from the sexual intimacy of a same-sex couple, when neither results in procreation?” The answer is implicit in George’s neoAristotelian metaphysics.
The status of their relationships with their children is a more complicated matter. With respect to them, Yoshino has found a difficulty, at least, with George’s argument, one that has not been previously noted in the scholarship, to the best of my knowledge.
Children, George writes in his original paper, “have only two parents—a biological mother and father." Same-sex couples cannot form families in the same way. Yoshino observes: “The direct implication of this statement is that an adoptive parent is not the parent of his or her child, as he or she is neither the biological father nor the biological mother of that child.” Here George has a problem. Both adoption and the use of reproductive technologies sever the tight link between coitus and procreation that is at the center of his definition of marriage. Yoshino writes: “if married couples who adopt are truly the parents of their adoptive children, it becomes less clear why the special biological link between parents and children can be a ground for defining the nature of marriage to exclude same-sex couples.” George has some possible replies – which he, for obvious reasons, does not want to say - that could handle these cases. Perhaps adoptive parents are not parents at all, but mere strangers who are very kind to look after children who are not theirs. Or maybe reproductive technologies are morally illicit ways to produce children. But these are not going to go over well in contemporary American society. These conclusions are, if I may say it again, weird and counterintuitive.
On the other hand, while George is in serious trouble here, it’s not clear how much that trouble infects his more general claims about marriage, because those claims don’t seem to depend on the meaning of parenthood. They depend rather on his odd neoAristotelianism. He could thus jettison his claims about parenthood and maintain his thesis.
Yoshino is right that George’s understanding of marriage is underinclusive, if one takes for granted a certain understanding of marriage. But George does not take that understanding for granted. That is the problem.
I share Yoshino’s views. In fact, speaking personally, I’ve never needed to go beyond the core case we’re arguing about: any definition of marriage that excludes same-sex couples strikes me as already underinclusive. It is because there is so little distance between premise and conclusion, however, that more substantive philosophical argument is necessary.
The really important work that Yoshino has done is to highlight George’s dependence on archaic Aristotelian metaphysics. Only in that way can George justify his odd line-drawing. So the real question is whether the response that I’ve suggested that George will make helps or hurts his cause. I continue to think that what Yoshino has done fundamentally is to highlight the weird and counterintuitive character of George’s arguments. But that isn’t necessarily a bad thing.