With the Supreme Court set to hear arguments against the Defense of Marriage Act
(DOMA), the issue of “same-sex marriage” has grown in its relevance. Leading Republican
figures are calling for a shift in the party’s line on the issue, with former Utah governor Jon
Huntsman writing recently in the American Conservative, “the marketplace of ideas will render
us irrelevant, and soon, if we are not honest about our time and place in history.” Governor
Huntsman may have a point. In the last fifteen years, support for the legal recognition of “same-
sex marriage” has gone from roughly a quarter of Americans after the passing of DOMA, to
roughly half of all Americans today. Young conservatives, in particular, increasingly differ from
their older ideological comrades on the issue of “same-sex marriage.” The issue has reached a
fever pitch, and the next few years will likely provide a decisive moment, whether in its
affirmation or its rejection.
Expanding on their 2010 article in the Harvard Journal of Law and Public
Policy, Robert P.George, Sherif Girgis, and Ryan T. Anderson attempt to give a precise
definition of marriage. Separating the views about the definition of marriage into two categories,
conjugal and revisionist, the authors critique the revisionist definition, claiming that it only
defines marriage in terms of its emotional bond. This poses problems, as friendship and
marriage so defined are distinguishable only in the degree of the relationship, and not by their
essential natures. The traditional and more accurate definition, the authors write, is the conjugal
view.
“Marriage is of its essence, a comprehensive union: a union of will (by consent)
and body (by sexual union; inherently ordered to procreation and thus the broad
sharing of family life; and calling for permanent and exclusive commitment,
whatever the spouses’ preferences.”
Defined this way, marriage brings value to society, by helping to produce “healthy, upright, and
productive citizens.” Since laws contribute to our social and cultural norms, the authors argue,
the legal recognition of traditional marriage strengthens the institution by making it costlier for
individuals to break these norms. They write, “Marriage is not just about private problems and
rewards, for which private solutions are enough. At stake are rights, and costs and benefits
(externalities) for all society.”
In the polemic height of What is Marriage, the authors lay out how recognizing “same-
sex marriages” would hurt the institution of marriage as a whole. Relying on their assumptions
that laws shape beliefs and beliefs affect behavior, they claim that a legal redefinition of
marriage would misinform society about its proper meaning and thus damage the institution
as a whole. In their view, this confused definition has five consequences. First, marriage as
a human good will be harder to achieve, since individuals will increasingly have a confused
definition. Secondly, marital norms will erode, as society will begin to view the institution through
the revisionist lens, as a bond defined primarily by its emotional intensity. Thirdly, the confusion
of marriage will also confuse the roles of mother and father, and encourage single-parenthood.
Fourthly, and I would suggest most controversially, the authors argue that changes to marriage
laws would threaten the ideological freedom of those who believe in traditional marriage.
Finally, it would damage friendship as an institution, as the revisionist view makes marriage
distinguishable from friendship only in the intensity of the emotional bond. To hammer home
these consequences, the authors quote gay rights activists themselves to prove that even those
who support the revision believe that it will affect the institution. The most effective part of the
book, this section
clearly illustrates the consequences of marriage revision and why compromise along the line of
civil unions is simply untenable.
The authors also seek to rebut common criticisms of the conjugal view. Responding to
the perceived exclusion of infertile couples, they argue that these couples differ from those with
children in the degree, but not the nature of their relationship. While their sexual activity may
not result in children, it is still ordered toward procreation and thus fulfills the conjugal definition
of marriage. As for the historically charged objection that traditional marriage laws smack of
prohibitions against interracial marriage, the authors reply first by saying that while it is possible
for interracial marriage to meet the definition of conjugal union, “same sex marriage” cannot
claim the same potential. Secondly, they argue that the traditional definition of marriage is not
based on animosity toward homosexuals, pointing to the fact that this definition has stood even
when society has affirmed or even celebrated homosexuality.
What is Marriage? succeeds in making a strong case for the preservation of traditional
marriage laws. For those new to the philosophical debate on marriage, the arguments are clear,
coherent, and accessible. George and others persuasively argue for the state’s role in
preserving traditional marriage. The authors certainly present the abstract case against “same
sex marriage,” but I think it is vital to do it in this manner, since anything else would lack the
intellectual rigor necessary to withstand accusations of homophobia or bigotry. The authors
shrewdly emphasize the secular nature of their case, though I wonder if this undercuts their
position in the long term, given the correlation between religiosity and defense of traditional
marriage.
That said, the book has some issues. First, the authors’ argument about the
impingement of intellectual freedom is unsound.The authors claim that a change in the definition
of marriage will negatively impact the intellectual freedom of those who still hold to the
traditional view, but this line of reasoning only makes sense if you in fact hold the traditional
view. If current marriage laws are in fact unjust, then it does not matter that changing the status
quo will hurt those who have the most invested in it. This logic would seemingly justify the
preservation of Jim Crow laws, seeing as how their repeal negatively impacted those who held
a racist view of society. Only if one already assumes the justice of traditional marriage laws, or
the injustice of its alternative, does one then see the effect on moral freedom as negative. If the
authors are correct in noting that law shapes beliefs, then the same reasoning could be turned
on traditional marriage, with advocates of “same sex marriage” showing that the status quo
negatively impacts those who hold views contrary to it. The supposed effect on those who
oppose the norm does not make a law more or less just. Otherwise, the justice of laws would in
fact vary based on the societal context, and would ultimately be relative, a claim that I am sure
the authors would not like. Thus, the problem for the authors is not really that a change in
marriage laws would impinge on intellectual freedom, but that it would punish those who hold to
the correct view. Harping on “intellectual freedom” in this manner too easily rationalizes the
defense of unjust laws for the sake of those who support the injustice.
More generally, the authors should elaborate more on why law affects society’s morality.
Theoretically, the law might affect the values or norms of a society, but in a government run by
popular sovereignty, the norms of society would also affect the laws. The causal path between
laws and societal norms runs both ways, and thus the effect of changing laws is unclear. The
preservation of traditional civic marriage likely requires a substantial majority to believe in the
merit of the traditional definition, and thus the supposed impact of laws on norms would have
already been achieved.
That said, the book still has many more merits than flaws. George and others coherently
and clearly argue for the defense of traditional marriage and avoid the religious tropes of other
advocates. Their case has some unnecessary secondary arguments, but overall it still has some
major intellectual muscle.
By Pete Kunze ’14
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