The best arguments for limiting marriage to one man and one woman reveal something surprising: extending marriage to gay people is the pro-family position. Traditional marriage advocates claim this pro-family ground and gay marriage proponents have given it up too readily. The conservatives claim that marriage is "conjugal," about building families, and that this excludes gay marriage. Progressives argue instead that marriage is a sexual-romantic partnership. Both are wrong. A close look at the best arguments for keeping marriage heterosexual accomplishes one conservative goal: it shows that a pro-family definition is more desirable. But ironically, it also shows that support for gay marriage is pro-family and that excluding family life from gay citizens is a gross assault on their dignity.
The Supreme Court will soon decide whether the constitution protects a right to same sex marriages. The best conservative arguments presented to the court owe much of their existence to Professor Robert George. George is perhaps the most formidable public intellectual on the religious right. Educated at Swarthmore, Harvard and Oxford, he holds a distinguished tenured position at Princeton, once held by Woodrow Wilson, and is widely published in the world's leading journals of law and philosophy. His argument is the best defense of traditional marriage available. And yet, it not only falls short, it also contains the seeds of an even more compelling position that is both pro gay marriage and pro family.
Professor George argues that marriage is "a conjugal union of husband and wife." Too often, defenders of traditional marriage stop there. This is called "begging the question." The debate centers on whether marriage must involve one man and one woman. Replying with "it should be one man and one woman" is not an argument. It's just a restatement of the desired conclusion.
George knows better, of course. He lays out a case for why marriage should be restricted to one man and one woman. Rather than a relationship about sex and romance, or partnership, marriage has long been properly understood as "conjugal." By this he means "unions rooted in the sexual-reproductive complementarity of male and female." The purpose of marriage is to "ensure that as many children as possible are brought up by their father and mother in the marital bond."
In other words, the Professor defends his view of what marriage is by pointing to what he believes it is for. This rich approach to ethical reasoning goes back at least until Aristotle. Rather than talk about marriage in terms of human rights and dignity, or costs and benefits, George instead focuses on its purpose. This is a smart move as the other approaches are not favorable to his position. But it is also an honest move: the Professor has shown a great deal of skepticism when it comes to more newfangled approaches to ethics. And his it's-all-about-child-rearing view is unsurprising, given that he is a conservative Catholic.
The problem with Professor George's position is that it does not fit with millions of marriages. Many young couples are infertile. Most old couples are too. Quite a few fertile families choose not to reproduce. In other words, in order to exclude certain kinds of marriages (the gay ones), he has drawn a line that inadvertently excludes lots of other marriages too. But these nonreproductive marriages are acceptable to just about everyone. That puts his definition and purpose of marriage under strain. If it excludes millions of marriages that just about everyone accepts, it is not a very good definition. This is only amplified by the fact that the Professor and his traditional marriage allies claim that the generally accepted definition of marriage must prevail.
He anticipates this, as he recognizes that the success of his definition means it must resonate, accommodate childless marriages, and exclude gay ones. His entire argument turns on his response. The existence of infertile spouses does not mean marriage is just about sexual-romantic companionship, he argues:
"Marriage [is] the type of relationship that would naturally be fulfilled by the spouses having and rearing children together. And sexually complementary spouses can enter into precisely that type of relationship even when one or both happen to be infertile."
This is, I believe, where his argument goes off the rails.
Greek mythology holds that there was an innkeeper named Procrustes. When travelers came to his inn, he offered them a bed that was a perfect fit. If the traveler laid down and the bed was too short, Procrustes would cut off the traveler's legs. If too long, he would stretch his guest. This is where the term "Procrustean bed" comes from -- an arbitrary set of rules that are just so, no matter what you have to do to the subject matter to get them to fit. George delivers a Procustean double whammy: he lops off the lower limbs to exclude gay marriage while adding a few childless inches at the top. What remains has all the coherence of a gerrymandered congressional district. Somehow children provide grounds for including childless straight couples and excluding child-rearing gay ones. Procrustes would be proud.
This makes George's argument almost as circular as the question-begging "one-man-one-woman" approach mentioned above. He says marriage is about a bond. It has something to do with kids, but not so much that actual kids need to be present. He just needs to borrow the idea of kids long enough to exclude anything but male-female pairings. But we shouldn't take the kid thing so far as to accidentally exclude some straight marriages. Professor George's supposedly child focused definition is so convenient and so unhooked to anything about the actual world (real children, for instance), it appears to be completely constructed with the end in mind. Marriage is only for one man and one woman, because, it turns out, only a man and a woman can have this special thing that is marriage.
His argument has another problem. He treats the matter as if there are only two options: marriage is a sexual-romantic partnership or straight, conjugal marriage. To be fair, as mentioned above, advocates for same sex unions make the same mistake. They invoke sexual-romantic partnership as the reason for marriage, because this gives them an advantage. It's a clear, straightforward, definition that nicely describes what marriage is to a lot of people. It also does not exclude infertile couples, and it doesn't make so much hay about having so many babies, or have oppressive historical overtones. And of course, it easily accommodates gay marriage. But Professor George correctly notes that it risks opening a Pandora's box for relationships that most of us would say should not qualify as marriage. In other words, it is overinclusive.
But there is a third way, and it can be found within Professor George's own words. Let us revisit them:
"Marriage [is] the type of relationship that would naturally be fulfilled by the spouses having and rearing children together. And sexually complementary spouses can enter into precisely that type of relationship even when one or both happen to be infertile."
While accommodating all straight marriages and no gay marriages puts George's argument under tremendous strain, his words hold the seed of something richer. The compelling part of George's definition can be preserved, but without sacrificing coherence. It can accommodate all current marriages and all monogamous gay marriages, and exclude polygamy and more oddball marriages.
He says marriage is the type of relationship that would be fulfilled by the spouses having and rearing children together. Of course George includes the word "having" so that we can infer that the theoretical biological ability to reproduce somehow makes a relationship more meaningful and gives us reason to exclude gay relationships. But he doesn't quite pull it off. Gay marriages would be fulfilled by having and rearing children together, just like straight infertile marriages, and in both cases, the actual having is impossible. In fact, gay spouses will likely have a relationship that would find more fulfillment in rearing children together than would opposite sex spouses in their eighties. In any case, it's the rearing that is familial.
If you remove the Professor's question-begging assumption that only opposite sex people can have such relationships, there is a way that these words hook on to the real world, and almost perfectly reflect what people mean when they say marriage: they want to be more than a sexual-romantic partnership, they want to be a family. Even couples that don't have children have the kind of relationship that would be fulfilled by having and rearing children, because they are a family. And this is just as true for gay marriage as for straight marriage.
George's words can thus be boiled down to something a bit simpler: Marriage turns two lovers into a family, whether or not they have kids. Isn't that what marriage is? Is it not why same sex marriage advocates are so passionate about marriage, instead of just accepting civil unions? They want a social blessing for their social union, the kind of union that goes beyond partnership. Marriage is family, that fundamental building block of a society. That seems a more elegant definition -- one that takes the best of George's convoluted definition, reflects the actual experience of marriage, more easily accommodates the infertile and intentionally childless, and happens to include gay people.
This also works well with the purpose of marriage George articulated: "to ensure that as many children as possible are brought up by their father and mother in the marital bond." I would, of course, use the word "parents" instead of "mother and father." While there are no large, randomized, controlled trials, the early research seems to suggest that kids of gay parents do just as well as those with opposite sex parents, even though many still face stigmatization for having gay parents. Incidentally, part of the value of gay marriage is helping remove that stigma, which means gay marriage will help kids. Given this, and the fact that gay families aren't stealing kids from their straight biological parents, gay marriage does little or nothing to erode the purpose of raising kids in families. In fact, if we think of adopted parents as parents (as we should), gay marriage very much improves the environment for childrearing by making many more families available for adoption. In also allows many people who wouldn't have otherwise procreated the opportunity to do so through surrogacy. While I would not necessarily say the purpose of marriage is children, it does seem that George's procreative purpose is easily accommodated by a definition of marriage as creating a family out of two lovers, since the family project is often fulfilled by raising children.
The question then frequently arises -- what are the limits? If marriage can change, one wonders: how much? It's the slippery slope question. But this is not the beginning of changes for marriage, nor will it be the end, whether or not gay marriage is adopted. Marriage has evolved for millennia. Polygamous marriage, paternalistic marriage to underage girls, marriage where women were property or could be beaten and raped, and the advent of birth control have all featured heavily or played decisive roles in that history. In fact, according to Yale Historian John Boswell, lifetime gay partnerships were blessed by the church in Europe during the Middle Ages. If change creates a slippery slope, the slippage started a long time ago and adapting to cultural changes is the actually the business as usual, not a fundamental change.
Even if this was the first change to marriage in all of history, we could take this step and retain independent reasons to exclude polygamy, incest, and oddball marriages. In polygamous marriages, the intimacy required for marriage to thrive is threatened by competition among multiple spouses. This also creates a bumper crop of excluded, unmarried men, which raises the risk of violence and social instability. Incestuous relationships and relationships that involve one or more underage partners directly harm participants and offspring. And objects and animals cannot give meaningful consent to marriages. Just as important, the definition of marriage provided here excludes these relationships. Professor George takes his would be fulfilled by raising children definition to exclude oddball marriages. Marriages as creating a family from two lovers operates in a similar fashion. Marriage is a social practice rooted in the complementarity of two spouses, the kind of relationship that is classically fulfilled by raising kids, but doesn't require it. Insofar as George's definition keeps out the fringe cases, so does this one.
Granted, while the "you're destroying marriage by changing its definition" arguments are often weak -- the advent of gay marriage hasn't destroyed existing marriages nor has it eroded marriage rates -- there is something to the spirit behind them. Marriage is supposed to be a meaningful enterprise, blessed by society as such. Allowing people to marry their pet spiders trivializes the meaning of that blessing. So I will concede that is important that a good definition of marriage exclude marriages that trivialize the institution. But I have provided that here.
The question of trivialization leads us to a place where George and his allies are on stronger ground. Their claim is that the matter has been left to the states and should be decided by the democratic process, not judicial fiat. There is something to this. Marriage bestows legal benefits, to be sure, and these are important, tangible goods that many same sex couples must currently do without. But these can be granted through domestic partnership. In fact, if marriage is just a sexual-romantic partnership, I'm not sure why the Court should not just mandate the adoption of civil unions as a minimum, and leave the marriage question to the states. Marriage is something more: a meaning-laden title, a powerful social good. And that title is obviously important, both to the same sex couples and their allies, and to the people that want to withhold it from them. The legitimacy of that kind of social good would generally be increased by democratic discussion and participation. This is a strong argument for the Court to defer to the democratic process.
And that's to say nothing of the backlash that can come when the courts overreach. Michael Klarman of Harvard Law School has argued persuasively that Brown v. Board of Education set back civil rights, and Roe slowed the advent of reproductive rights. When the Court's position gets too far ahead of public opinion, it weakens the judiciary, and well as the Court's specific decision, and it mobilizes the opposition. Marriage equality advocates should keep in mind that getting too far ahead of the populace could undermine the very cause they champion. That being said, the majority of American's accept gay marriage. Soon the majority of Americans in the majority of states will accept gay marriage. By 2020, majorities in 46 states are projected to accept gay marriage. This may mean it is time for the court to act. It may mean it should wait a few years.
And yet. Sometimes the harms are so egregious that waiting for the democratic process to play out is its own injustice. Sometimes the populace, or at least certain slices of it, takes too long to adopt evolving social norms. In Loving v. Virginia, the court unanimously decided that states could not abolish interracial marriage, and has been widely lauded for doing so since. Sometimes the risk of backlash is worth it. But when?
Presumably, when human dignity is on the line. Certainly, there is no previously established "right to marry." But our basic conception of dignity does require us to make sure most citizens can build meaningful lives. Compared to sexual-romantic partnerships, the richer, family-focused definition offered by George and tweaked here provides fertile ground for claiming basic human dignity is in play. Most of us, even politically outspoken people like myself, would trade our free speech rights and our autonomy for life with our families in a heartbeat. This is because family, for so many people, plays such a central role in the life story. Withholding that from two people of sound mind that want to engage in monogamous, intimate, family building without harming others, seems among the deepest insults imaginable to human autonomy and dignity. The cruelty of love that is never consummated in marriage has fueled many novelists for a reason -- familial love is perhaps the deepest human emotion.
Granted, the court is not considering anything that will prohibit familial love from happening. But its decision may allow states to continue to make it very hard on families that move in that direction. That leaves the question: is making it hard a violation of dignity? Is withholding social recognition for gay marriage a violation of dignity?
My contention is that it may be a violation to do this to any pair of people that fit the description above, and that it is certainly a violation to do this to a group that has been the target of longstanding, invidious discrimination. The gay community has been ostracized off and on for millennia. It has been the subject of hate crimes, social exclusion, workplace discrimination, and psychiatric treatments that are tantamount to abuse. The suicide rate among gay teens is 4x the rate for straight ones, and 20 percent -- 40 percent of homeless people are gay. This is community is a classic example of historical discrimination.
And we now know that gay people can build real families. They can build loving bonds that last a lifetime, that look and feel and are like the bonds of healthy straight marriages. These marriages provide one of the richest opportunities life affords for the participants to thrive, just like they do for straight spouses. Their marriages provide a loving, familial environment in which children can and do flourish. And in fact, we know that building families has a civilizing effect, one that benefits the participants and their communities around them. Withholding this is bad for society, and an egregious affront to the dignity of same sex couples. And as such, it trumps the risk of backlash.
Professor George and his allies did me a great favor on my quest toward supporting marriage equality. They showed me how strained even the best defenses of traditional marriages are. And the arguments they invoked inspired me because they got at something compelling. Marriage is about family, not just partnership. While families very naturally include kids, they don't require them. My wife and I were certainly a family before we had our son, and before we ever decided to have children. Marriage as family resonates deeply with me, and suspect it does with many of those who seek it. It includes the infertile as well as same sex marriages, and it is as good at excluding multiple spouses and marriages to siblings and pets as is Professor George's definition. Building a family is among the most meaningful experiences of most people's lives. Allowing the will of the people at the state level to trample gay couples and their children underfoot is a cruel assault on this most basic human need. Advocates of traditional marriage have it half right: the Court should choose in favor of the family. They should extend Constitutional protection to gay families once and for all.