Have opponents of gay marriage finally found a good argument?by Alex Worsnip / January 30, 2013 / Leave a comment
What Is Marriage? Man and Woman: A Defence By Sherif Girgis, Ryan T Anderson and Robert P George (Encounter Books, £10.99)
Opponents of gay marriage have, for many years now, lacked intellectually credible arguments. What Is Marriage is an attempt to remedy this. Its authors—Sherif Girgis, Ryan T Anderson, and Princeton Professor Robert P George—are three academics with an impressive array of credentials. The book is measured and non-confrontational, written in a tone somewhere between legal scholarship and philosophy. Stylistically, at least, it is the antithesis of the ravings of the religious right. Although the authors are conservative Christians, they purport to make a secular case against gay marriage.
Unsurprisingly, the anti-gay marriage movement has embraced this work as a godsend, characterising it as the long-awaited heavyweight, intellectually formidable defence of their view. The authors have presented their argument in serious forums such as the Harvard Journal of Law and Public Policy and the Wall Street Journal. Even some people on the other side of the debate have taken the book seriously, with Kenji Yoshino of NYU law school calling it “the best argument against gay marriage.” Behind its intellectual veneer, though, the arguments of What Is Marriage are no less flimsy than those of other anti-gay marriage crusaders.
The central question in the gay marriage debate, the authors tell us, is not about homosexuality, but rather about marriage. As such, the battle over gay marriage is, in the view of the authors, a battle to save marriage. Once we understand what marriage—the real thing—is, we will see that it is inherent in its very nature that there cannot be a marriage between two people of the same sex.
It’s an audacious line of reasoning. In response to demands for legal rights for gay people, it says something like: “I’m sorry—it’s nothing against you, it’s just that the demand you’ve made doesn’t make sense.” Asking for a gay marriage is, for these authors, rather like asking for a liquid car, or for a manicure for your knees—a demand for something conceptually impossible. As such, the rights-demand doesn’t even have to be engaged. You can’t engage something that doesn’t make conceptual sense.
The common-sense reply, of course, is that gay marriages happen every day, in a range of jurisdictions across the world where they are legal. For these authors, however, such events are charades: they cannot be real marriages. Why not?
Marriage, they claim, has a kind of inherent nature, essence or function, which is to forge a “comprehensive union” between persons. Aside from some ill-supported assumptions that homosexual relationships cannot be permanent or a positive environment for bringing up children, the key reason why homosexual unions are said not to amount to “comprehensive unions” is that they do not involve procreation. Thus, they are not— and cannot be—marriages, properly speaking. (Conveniently, heterosexual marriages between people who are infertile, or do not wish to have children, are OK, since they are still “aimed” at procreation, in some mysterious and undefined sense.) Calling this view the “conjugal view,” they depict their opponents as arguing for a “revisionist view” of the “nature” of marriage, whereby its central function is to express a loving bond.
The book’s central failing, however, is that its authors never justify why we should think of marriage as even having a central function or nature. This general approach—familiar from the natural law tradition within Christian thought, which takes its cues from Aristotle’s teleological metaphysics—makes sense in a religious context where marriage is an ordinance of God. But remember that the argument of this book is meant to be secular. In a disenchanted, scientific view of the world, it is unclear why we should think of even natural objects such as trees and rivers—let alone a social institution like marriage, which, contrary to the religious view, was invented by humans—as having permanent and unchangeable functions or essences.
This isn’t to embrace a kind of radical social constructivism where all of reality is just a matter of how we think of it. But if there’s anything which is socially constructed—and, correspondingly, based on the features of the societies that construct it—surely an institution like marriage is a prime candidate. And if that’s true, there is no intrinsic reason to respect the existing “function” of marriage. Whereas these authors start with the question of what marriage’s function is, and proceed to draw conclusions about what is socially desirable, a more enlightened view would invert this order of explanation, beginning with what is socially desirable and moving to what we want marriage’s function to be.
Even if the authors were somehow right that marriage has a natural “function,” and that this function lines up with the “conjugal view,” what would this really tell us? What would we be wrong, or bad, about our social practices failing to match this natural function? If marriage really did by its nature exclude homosexuals, then the right response could still be to reject marriage strictly speaking in favour of something extremely similar, but which allows for sexual equality. The fact that an institution has an essential nature cannot close the question of whether it should be reformed, unless we are given some reason to care about preserving the essential nature of the institution. It’s essential to the nature of, say, the institution of slavery that it involves subjugation—otherwise it doesn’t count as slavery. Obviously, this does not entail that subjugation is a good thing.
Of course, marriage as it exists is not akin to slavery and the proposal is not to abolish it but to, in certain respects, reform it. What harm do we cause in doing so? The answers of the authors fall into two categories. The first appeals to the claim that if we reform marriage, people will lose the chance to have a real marriage, which is a move of astonishing circularity, since it assumes that the existing, heterosexual-only institution of marriage is of greater value than a more inclusive version.
Second, the authors, without argument, claim that defenders of gay marriage must believe that marriage should be impermanent and based on emotional whims, and then argue that if marriage evolves this way, it will have various social harms. On the same kind of basis, the authors charge that defenders of gay marriage must also defend polygamy and pretty well all other potential marital arrangements, if they are to be consistent.
But there’s a sleight of hand here. The claim which the gay marriage advocate needs to make is that marriage can be revised—there’s nothing inherently inviolable about existing conceptions of marriage and its function. That doesn’t mean, however, that any revision is a good one, or one that we should support. And it’s just not true that the only way to resist other revisions of marriage is to revert to the authors’ conjugal view, thus excluding gay people in the process. Nor need one even offer a competing view of marriage’s function—the kind that might commit one to the more comprehensive revisions these authors try to saddle their opponents with (though it’s far from obvious that there is no possible such view which would include gay marriage but exclude polygamy). Rather, one can reject the notion that marriage has an inherent function and consider proposed revisions one-by-one on their individual tangible merits.
(For what it’s worth, polygamy seems to me a difficult case, one where we have to balance the rights of clear-eyed and uncoerced individuals who genuinely want to enter such an arrangement, against those of the individuals—primarily women—who likely do not enter such arrangements uncoerced and lose out from them. One crucial thing to determine is how many people fall into each category, which is a complex question requiring detailed empirical investigation. Certainly, however, someone who reaches the reasonable enough conclusion that polygamy is too often based on coercion and inequality to be worth sanctioning, but nevertheless supports gay marriage, is in no way being “inconsistent,” as the authors charge.)
I have not had space to address all the bad arguments in this book, such as the claim that allowing gay marriage constitutes an expansion of government or a violation of religious liberty. But here is one final question for the authors. They say that their argument is not in any way an argument against homosexuality. But if we were to accept their argument, why wouldn’t it also extend to a case against the legality of gay sex? After all, sex—perhaps more clearly than marriage—has at least one obvious biological “function”: producing children. Gay sex cannot share this function. So, if that’s good enough grounds to ban gay marriage, why not also gay sex? What is wrong in the latter argument that is not wrong in the former?
Maybe there is no difference. Maybe some would deny the right to gay sex, again stressing it’s not homosexuality at issue here, but rather, sex. This book is not the first attempt to deny the rights of gay people while at the same time saying it’s “nothing against them.” Indeed, as I’ve suggested, the reasoning of this book could be applied to a range of other gay rights. Each time, on a “case-by-case” basis, gay people would be told: “Sorry: it’s just in the nature of this institution to exclude you. I’m afraid I can’t do anything about the inherent nature of the institution!”
This kind of argument is nonsense. We can do something about our social institutions; they are not timeless entities beyond our control. And when we do, it won’t be the “end” of marriage; for millions of marginalised and excluded people across the world, it will be the start.
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