Marriage Equality and Gay Marriage

This article is a brief response to “What is Marriage?”, an article by Sherif Girgis, Robert George & Ryan Anderson, published in the Harvard Journal of Law & Public Policy, Vol. 34, p. 245, and kindly shown to me by Kevin Aldrich.

The authors provide a definition of marriage that “most people accept”, and seem to assume this definition without really defending it. They do respond to objections, but they don’t provide any solid positive reason for accepting their definition. But we’ll ignore that particular failing. What’s more interesting is that their definition, which we’ll call the Traditional Definition, seems to include gay marriage. That’s with a charitable reading. A less charitable reading of the Traditional Definition would find that there is only one possible marriage, which is a heterosexual polyamorous situtation where each man in the world is married to every woman and each woman is married to every man. How? First, let’s introduce the Traditional Definition as presented by Girgis, George & Anderson. Here goes.

Marriage involves a comprehensive union of the spouses, a special link to children and norms of permanence, monogamy and exclusivity. We can number these, and will number them in the reverse, from least relevant to most relevant requirements.

  1. Marriage involves the norms of permanence, monogamy and exclusivity.
  2. Marriage involves a special link to children.
  3. Marriage involves a comprehensive union of the spouses.

The first part of the first involvement of marriage (p. 259) is the norm of permanence, at least until death, and is not gender specific. A commitment between two friends or between a father and a son can also be permanent. Monogamy and exclusivity in this context means that each marriage is between two and only two people, and it is noted by Girgis, George & Anderson that this does not rule out Biblical polygamy, since in that case each woman would have been married to the same man, but not to each other. After all, it would seem strange to consider a traditional definition of marriage incapable of comporting to many Old Testament marriages, not to mention a large number of Muslim and other multi-partner marriages all over the world and throughout history.

The second involvement of marriage is a special link to children (p. 255-259). This link to children need not involve actually being able to have children. The authors use the analogy of a baseball team. Even if a baseball team never wins a game, it can still be considered a baseball team, because the members participate in an activity the purpose of which is to win. To adjust their analogy for the sake of a clearer connection to infertile couples, even if all the members of the team were physically incapable of scoring points, the fact that they can play the game is sufficient to consider them a team. By the same analogy, any couple that can unite bodily can be married, regardless of whether that bodily unity can possible generate children. Understood this way, although there may be an important link between the unity of bodies and children in general, specific relationships may have that no instance of bodily unity can possibly result in children and that relationship can still be a marriage. This second involvement is therefore neither necessary nor sufficient, even if it is somehow conceptually connected.

The third involvement of marriage is this bodily unity (p. 253-255). A comprehensive union of spouses. I will begin with the less charitable reading of this requirement, comparing it to the most holy of traditional Christian marriages, that of Mary and Joseph. Were Mary and Joseph validly married? Someone who had only this article by Girgis, George & Anderson would struggle to answer. As the story goes, Mary and Joseph never once had sex. If an actual instance of bodily unity is required for marriage, then Mary and Joseph were never married and Joseph was in no sense Jesus’ father. If, however, the potential for comprehensive union is all that is necessary, then, even accepting a prohibition between two members of the same sex, all that separates any two potential partners is mere ceremony. Every man and woman would have all the conditions provided by Girgis, George & Anderson for marriage. Their relationship would be exclusive and monogamous. Since every man would be married to every woman and could not be divorced, the marriage would be permenant and exclusive and monogamous (all sexual activity would occur within the one polygamous and polyandrous group and no living person can leave the marriage). The marriage is necessarily connected to the birth and raising of all children and all child-producing acts. Finally, the marriage includes all possible bodily unions. Each man alive is then effectively married to every woman, and each woman to every man.

A more charitable understanding of the text could ignore Mary and Joseph as a special case, and continue, while recognizing that maybe there are other real marriages that do not comport to the Traditional Definition of marriage. Even with this charitable reading, marriage between two men or two women can be included. What do the authors say is required for comprehensive union? According to them, the union must be sexual. Union based around tennis wouldn’t be marriage. Union around solving theoretical physics problems, another example the authors raise, involves some sought-after good, truth, even if truth wasn’t achieved, even apparently if truth is known beforehand never to be achievable without a miracle (Artie and Jughead sit down to solve a unified field theory). So long as there is a sincere desire for children from the act, it doesn’t matter if the desire is entirely unrealistic apart from a supernatural event. In fact, the sexual activity between two men or two women might produce children if a miracle occurs, and so if two men or two women enter into that relationship as a sexual relationship, then the right end of the sexual act may be children, even if that end is impossible without divine intervention. Maybe if the world had more faith, such divine intervention would occur more often.

Maybe you object and say that a sexual relationship where children are impossible (without recourse to miracles) cannot constitute comprehensive unity. If you raise that objection, the response is simple. Sterile couples cannot have children of their own without recourse to a miracle, and therefore their sexual acts are just as much instances of comprehensive unity as sex between two married men or two married women.


About שאול בן דניאל

I'm a dad, husband, scientist. I spend a lot of time wondering how life came about, and about how lightning works, and how these can be connected on planets outside our solar system.
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One Response to Marriage Equality and Gay Marriage

  1. PB presents very clever arguments but I think he fails to engage with what the authors call organic bodily union. In organic bodily union, the sexual reproductive system of a man and a sexual reproductive system of a woman form one human reproductive system. Homosexual acts can never be acts of organic bodily union. Infertile heterosexual sexual acts can be.

    But two men or two women cannot achieve organic bodily union since there is no bodily good or function toward which their bodies can coordinate, reproduction being the only candidate.”(255)

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