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
In a recent response to my earlier post defending same-sex marriage, Robert George and his coauthors (hereinafter “George) argue that my attacks on their views have only strengthened them, by showing the unacceptable implications of a different view. It’s hard to resolve our disagreement, since each of us sees value in the world where the other sees none. It may be helpful to sort out the different claims that George is making. They tend to run together in his exposition, but they are in fact independent of one another, and each must therefore separately be defended. They are:
1. Heterosexual marriages are not a mere social construct, but are Something Distinctively Real. 2. Heterosexual marriages are Something Special. 3. Homosexual relations are Nothing Special. 4. Homosexual relations are Something Awful.
His recent exchange with Barry Deutsch focuses on 1. (In his most recent writings, he has said little about 3 and 4, but other writings have made clear that he endorses both.) Deutsch tries to put pressure on George by showing that a mating male and female do not become a biological unity. George ripostes with skill. As I’ll shortly explain, I’m still not convinced: a mating male and female are cooperating in a biological activity that neither could do alone, but that does not make them a biological unity.
But the real question is not 1, but 2. It raises a question of ultimate value that cannot be resolved by demonstrative reasoning. We are at a real impasse. So I can’t conclusively demonstrate that George is wrong. I can show, however, that the objection that he is now pressing against my view does no damage. In doing so I elaborate my own view in a way I haven’t before, and so, I hope, justify adding to the growing mountain of verbiage in this debate.
Begin with 1. Deutsch’s critique of George focuses on irrelevancies such as that fact that the members of the mating couple have different DNA, and George explains well why this is irrelevant: two different bodies can unite biologically when they coordinate for the biological good of the whole. Reproduction is an instance of this. I have criticized this argument elsewhere, but here will only add a question: suppose Robby and I are friends, and I have a heart attack, and Robby saves my life by skillfully administering CPR. Our bodies – his hands, my heart – have coordinated for the biological good of the whole, here the community whose maintenance depends on keeping both of us alive. Have we united biologically? Would we do so even if he went through the motions of CPR but my heart were perfectly healthy?
But as I said, the real problem is 2.
Focus on the infertile heterosexual couple. Why think that there is anything peculiarly valuable about their mating, even though it will never produce children? Even if you accept 1, and think that they participate in 1, why think that there is anything valuable about that?
Here our debate hits a fundamental problem here, which George lucidly described long ago. In a 1988 article, he observes that "intrinsic values, as ultimate reasons for action, cannot be deduced or inferred. We do not, for example, infer the intrinsic goodness of health from the fact, if it is a fact, that people everywhere seem to desire it. . . . We see the point of acting for the sake of health, in ourselves or in others, just for its own sake, without the benefit of any such inference." The intrinsic nature of these goods can only be defended dialectically:
“While they may be defended by dialectical arguments designed either to rebut arguments against them, or to show up the defects or inadequacies of ethical theories that attempt to do without them, they cannot themselves be deduced or inferred or derived from more fundamental premises. One cannot argue one's way to them (the way one can, on the basis of more fundamental premises, argue one's way to a conclusion). The claim that they are self-evident does not imply that they are undeniable or, still less, that no one denies them. What it does imply is that the practical intellect may grasp them, and practical judgment can affirm them without the need for a derivation. (Which is not to say that they can be grasped without an understanding of the realities to which they refer.)”
"Recent Criticism of Natural Law Theory," 55 U. Chi. L. Rev. 1371, 1392, 1388-89 (1988). I concur entirely with George’s description of the argumentative terrain. In some ways, each of us is handicapped by the fact that we don’t grasp the intrinsic value that is so obvious to the other. When he writes that “spouses’ coition consummates marriage by sealing their commitment with a form of bodily communion made possible by their sexual-reproductive complementarity,” I just can’t see what’s so special about that which distinguishes it from the sexual activity of same-sex couples. And he similarly can’t see what’s special about those couples. (That is to say, he also endorses 3 and 4.)
All we can do, in the face of this impasse, is try to come up with dialectical arguments that try to probe the weaknesses of the other’s position. That is what he is doing in his most recent response to me, in which he offers some evidence from the law which, he thinks, supports his claim and which I can’t account for:
“Consistently and for centuries, our law (a) required coitus—and accepted no other act—for the consummation of any marriage, but (b) never treated infertility as an impediment to marriage. This cannot be ascribed to ignorance of infertility (the phenomenon was well known) or the difficulties of discovering it before a marriage: while non-consummation was treated as a ground for annulment or dissolution, infertility established after a wedding ceremony never was. Nor can this aspect of the legal tradition be ascribed to animus towards homosexuals or even the moral rejection of homosexuality: the law distinguished among possible sexual acts performed by the same legally wedded man and woman, and was settled in cases in which same-sex conduct or relationships were not at issue.
“The only way to account for this longstanding legal practice is to posit something much like our view: people grasped (and in fact many still grasp) that comprehensive interpersonal union—permanent, exclusive, and sealed by coitus—is (a) valuable in itself and (b) distinguishable in principle from non-marital friendships and indeed every other inherently valuable human good.
“Koppelman must find these features of historic marriage law to be baffling. Not seeing anything special in coitus or the kind of bodily union (and, therefore, comprehensive interpersonal union) that it makes possible, and unable to appeal to irrational motivations (like homophobia) or mundane explanations (like ignorance), he must find our legal tradition’s distinction between infertile opposite-sex couples and same-sex couples simply unintelligible. But it is perfectly intelligible the moment one recognizes that marriage is a distinctive form of relationship at once (1) inherently oriented to procreation, and (2) valuable in itself, and not as a mere means to procreation.”
I’m not baffled at all. But George is right that I need to offer some explanation of these phenomena, one that is consistent with my view that marriage is merely a social construct. All I can offer here is an hypothesis, which however seems to me a good deal more plausible than George’s.
I begin by invoking aid from what may be an unexpected source: Maggie Gallagher, another prominent opponent of same-sex marriage. She argues that marriage came into existence, and primarily continues to function, “to manage the procreative consequences of sexual attraction between men and women.” Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman, 2 U. of St. Thomas L. J. 33, 47 (2004). Since children do better if their fathers are responsible for supporting them, the institution’s rules have been designed to minimize the number of fatherless children. The same point is demonstrated in great detail (together with the same fallacious inference against same-sex marriage that Gallagher draws) in David Blankenhorn, The Future of Marriage 11-125 (2007). Blankenhorn offers fascinating evidence, some from early Mesopotamia, of the historical development of marriage because it served just those purposes.
(I agree with Gallagher and Blankenhorn that we wouldn’t have the institution of marriage without procreation. But if something is socially constructed, then there is nothing wrong with using what we have inherited for a new purpose, unintended by its creators. The authors of the Constitution, many of whom owned slaves, did not intend the use of federal power to abolish slavery. The builders of the Parthenon did not intend that it be maintained as an attraction for tourists and scholars. Saddam Hussein did not intend that his presidential palaces be used to house a democratically elected government. Screwdrivers are not intended to be used to pry open cans of paint. When a novel use of an inherited artifact is proposed, the question ought to be whether that use is a good one, not whether it is consistent with the artifact’s original purpose.)
Contra George, while infertility has been a well-known phenomenon, it has also been, for most of human history, an indetectible one. There was no way to be sure that a woman was infertile: you never could tell when childless, elderly Sara would hand Abraham a surprise. So bright line rules made sense here. Once a couple had had intercourse of the procreative kind, then she might be pregnant and the law took notice of that face. If this explanation is correct, then the rules that George focuses on support, rather than undermining, the idea that marriage is a human construct.