[This post is part of a series analyzing Robert George’s widely-read article, “What is Marriage“, which appeared on pages 245-286 of the Harvard Journal of Law and Public Policy. You can view all posts in the series here.]
Page 246: In which Robert George sets up the argument in a way we cannot accept.
George tries to sneak his conclusion into his reasoning.
Robert George opens his article by making a fundamental distinction — one that we should not let him make. He writes:
What is marriage?
Consider two competing views:
Conjugal View: Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts—acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it.
Revisionist View: Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear.
In the last entry, I took issue with George’s opening sentence, and now I take issue with his second: why are these views competing views? The “revisionist” view can contain and include the “conjugal” view. As he describes them, instead of being mutually exclusive:
Figure 1: Competing views
…they look like this:
Figure 2: Compatible views
Do you see what George has done here? Once you realize the second picture is the accurate picture, then logically there’s only one way these views are “competing,” and that’s if the conjugal view is the only correct view — that is, if anything falling outside it isn’t “real marriage.” But that’s the very thing he’s setting out to prove! In other words, by calling them competing views, he’s asking you to accept his conclusion even before he makes his argument. In fact, he’s sneaking his conclusion into the very beginning of his argument. We call that circular reasoning.
[By the way, our opponents engage in this either/or mistake all the time. They call themselves supporters of traditional marriage, as if we don’t support it, too. They don’t realize that the very phrase “marriage equality” means we support opposite-sex marriage exactly as much as we do same-sex marriage.]
Perhaps this is just a tiny logic trap. Perhaps George could escape it by rewriting his conjugal description as:
Marriage can only be the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together.
But perhaps he knows he would lose his audience right away if he said only couples who bear and rear children can have marriages that are “fulfilled.” Here’s a case where George’s reasoning, careful as it may turn out to be, doesn’t match the experience of real-life married couples.
Ultimately, nothing in the revisionist view excludes the conjugal view. The second figure simply recognizes that children play a key role in many but not all marriages. This doesn’t mean that revisionists are holding up a sign that says, “Stop! No children allowed.” These views are “competing” only because George claims they are. If you reject that claim (as I do), you’ll see many of George’s later arguments fall apart.
“Which ones?” — A digression.
We’ve already talked about George’s rationalist, almost Platonic approach to the question, “What is marriage?” It shows itself here. Is it true that marriage is the type of relationship that is naturally (inherently) fulfilled by bearing and rearing children together? That sort of claim is absolute and certain. It’s hard to know how to go about evaluating it.
Unless, of course, we move our focus to the real world and ask instead, Are marriages naturally (inherently) fulfilled by bearing and rearing children together?
And the answer to that will be: Which ones?
Some marriages are fulfilled by kids. Some are broken by them. In some marriages, one child fulfills the marriage and another tears it apart.
Some married couples don’t want kids at all. Others were happy to raise to children for a couple decades, and then are happy to send them out into the world, regaining a measure of privacy and intimacy; such couples have marriages that were fulfilled by raising children and now are fulfilled by not doing so.
And none of this helped by George’s definition of fulfilled as it appears in footnote 18: “That is, made even richer as the kind of reality it is.”
I’ll come back to the vagueness and circularity of that later.
All of these observations are empirical, of course. George wouldn’t approve: he’d probably say this is all based on circumstance rather than principle, and he only cares about principles. But George’s principles conflict with reality. At this point, you need to ask yourself whether you’re a rationalist, willing to sacrifice reality so that you can bask in an empty logical certainty, or are you an empiricist, willing to give up that certainty to work toward understanding a messy and confusing reality?
(Okay, I may not have phrased that with complete impartiality.)
By the way, I like this question, “Which ones?” when people are trying to extend a generalization way too far. For instance:
- Question: “Do you really think gay couples contribute as much to society as straight couples?”
- Answer: “Which ones?”
- Question: “Do you think a man can really take the place of a mother?”
- Answer: “Which ones?”
- Question: “Do you think apple desserts are just as good as chocolate desserts?”
- Answer: “Which ones?”
Enough of that. Back to George’s article.
George stacks the deck with loaded terms.
I objected to George’s opening question. And to the sentence that followed. Now I have problems with his use of “conjugal” and “revisionist.”
“Conjugal” means “marital” or “related to marriage.” So he’s dubbing his view of marriage the “marital view of marriage” or — essentially — the correct view. Which would make the “revisionist view” the view that deviates from the correct view. Talk about stacking the deck! Terminology matters, and with these terms, he’s demanding we accept his argument before he even makes it.
Further, how revised is the “revisionist” view? Yes, the notion of same-sex partners is new, but that’s not the heart of what he views as a revision — the idea marriage exists when two partners:
commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable.
How many people would disagree with that? If anything, this “revisionist” view is the commonly-held view, at least when it comes to marriage as it’s practiced by real human beings.
George’s conjugal view makes penis-in-vagina* a necessary condition of marriage, but in the last few centuries of Western civilization, how many couples have had to provide legal proof of that? If an ordinary married couple stops having sex, or never has sex to begin with, that can be cause for divorce or annulment if one of the partners is unhappy with the situation. But if neither complains, the government doesn’t intrude by invalidating the marriage against the couple’s wishes. How far back in history do we have to go to find the government demanding proof of penis-in-vagina before recognizing the marriage of two 80-year-old ordinary citizens? That’s how far back we have to go in order to consider George’s “revisionist” view a true revision.
Really, George should use “procreative view” (or “penis-in-vagina view”) instead of “conjugal view” and “common” in place of “revised.”
Perhaps this bickering over terminology seems trivial, but again and again we’ll see George using arguments that assume — and ask you to assume — his conclusion is true. Let’s not allow that.
I’ll stop here for now. George’s article relies heavily on this distinction between the conjugal/procreative view and the revisionist/common view. We’ll be coming back to it frequently, so it deserved its own entry.
Next: George takes a detour into bans on interracial marriage and thoroughly confuses the meaning of “discrimination.”
* Unfortunately, crude as it sounds, you’ll be seeing this penis-in-vagina phrase quite a bit in these entries. George prefers to call this interaction a reproductive, or generative, or procreative act. That breaks down, though, when he speaks of infertile opposite-sexers, whom he believes can still have a “real” marriage. For their sake, he sometimes uses the phrase procreative-type act.
But I can only see a procreative-type act as the type of act that leads to procreation, and for infertile couples no type of act leads to procreation. George is manhandling the English language, trying to keep infertile couples in the procreation tent by inventing terms with no coherent meaning. I don’t want to abet him in that effort, so I’ll use the more accurate phrase, “penis-in-vagina,” or sometimes “PIV.”
I’m enjoying this series. I remember reading bits of the George article when it came out, and so much of it just makes no sense to me – for exactly the reason you point out here. He requires you to agree with his conclusion in order for his argument to make sense. If you come at it disagreeing with his conclusion, then the arguments have no basis in “logic,” they all come down to “because I said so.” Why are infertile couples engaged in procreative-type acts but gay couples aren’t? “because I said so.” Why does PIV intercourse provide some benefit to the couple qua couple rather than the individual partners as individuals (but nothing else does)? “because I said so.” Why is increased intimacy and feelings of bonding and support between the couple NOT a benefit to the couple qua couple rather than to either individual? “because I said so.” There’s no REASON for any of it beyond getting to the desired answer.
I don’t know why anyone is praising this article as being thoughtful or intelligent; it’s the same old syllogisms with bigger words. I was particularly offended by his pretense that laws against interracial marriage somehow had nothing to do with children – as if the term “anti-miscegenation” was not rather overwhelming evidence that the goal of those laws were to prevent biracial children.
The two views *are* competing — *if* you’re reading George with the assumptions of Aristotelean-Thomistic(*) natural law in mind.
For a natural lawyer, the first thing to do when considering how some social organization ought to be set up and run (the state, the criminal justice system, the economy, marriage, whatever) is to characterize the regulative ends of that organization. The regulative ends of something are, roughly, the purpose of that thing, the reason why we have it. Once you know the regulative ends — and *only* once you know the regulative ends — you can start to figure out what the organization should look like. For example, you might say that the regulative ends of the criminal justice system are to prevent and punish crimes and (thereby) protect the peace and safety of the community. Once you know this, you can figure out that we need police (to identify and catch suspected criminals), judges (to determine whether or not the suspected criminals are actually guilty and assign punishments), and prison guards (to implement the punishments). In some societies, some of these jobs might be done by the same people, but they’re still the jobs that have to be done in order to have a well-functioning criminal justice system. An organization can do other things besides its regulative ends, but these are, at best, useful without being essential (like letting police carry guns); the most important thing is to figure out what the regulative ends require.
George’s two views of marriage are views of the regulative ends of marriage. On the `conjugal view’, the regulative end of marriage is procreation. (You’re entirely right that it would be more honest to call this the `procreative view’.) On the `revisionist view’, the regulative end of marriage is romantic love. If I remember the paper correctly, he’s going to argue that, since PIV is essential for procreation, it’s essential for marriage on the conjugal/procreative view; and since non-straight couples can’t have PIV, their marriages are futile — they have absolutely no chance of achieving the purpose of marriage. That argument, of course, depends on the conjugal/procreative view, which is why he starts here.
Now, on the conjugal/procreative view, it’s consistent to maintain that romantic love is *useful but not essential* to achieving the regulative end of marriage. It’s certainly much easier for a couple who are in love to commit to the 18+ year task of raising kids, but you can certainly do a decent job of raising kids without having any deep affection for your spouse. So your fig. 2 is wrong: you can accept the conjugal/procreative view without also accepting the revisionist view.
The real problem with this definition, I think, is the way it runs together (1) PIV sex, (2) pregnancy and childbirth, (3) raising children, and (4) the sexes and genders of the adults who raise children, all under the heading of `procreation’. I suspect that quite a few — though certainly not all — proponents of marriage equality will be happy to agree that (3) raising children is a regulative end of marriage; but that implies basically nothing at all about the other things. While — barring some major technological innovations — (2) is essential for (3), (1) is not, and neither (2) nor (3) impose strict requirements on (4). George doesn’t beg the question when he brings up romantic love, but he *does* beg the question in his assumptions about the relationship between sex, pregnancy, and raising children.
(*) It’s ironic that you call George a Platonist and suggest that Aristotle would have been opposed to his approach, because the natural law approach is deliberately Aristotelean. St. Thomas Aquinas was so important because he developed a version of Christian philosophy that was compatible with the texts from Aristotle that had just been re-introduced to Christendom from Dar al-Islam. On a related note, George is being empirical in an Aristotelean sort of way whenever he talks about the family structures of all known cultures and what `most people’ think about marriage. These are lousy generalizations compared to the work of contemporary social scientists, but his method isn’t completely rationalist.
Hey Dan, after looking through your site, I just wanted to say that I’m really pleased to have you commenting here.
Additionally, I wanted to ask … do you see Natural Law Theologians as butting up against the is/ought distinction? I’m just not sure that the logical leap works, you know?
—Myca
since PIV is essential for procreation
Actually, it’s not. Furthermore, it’s likely that eggs and sperm aren’t even both necessary for procreation, if we as a society want to go down the path of working out the details of cloning, oocyte fusion, etc. The very fact that we aren’t (especially with oocyte fusion which could potentially allow procreation with gene rearrangement) is a sort of discrimination. Again, there’s circular logic and use of conclusions to justify postulates.
Myca — Thanks! I’ve lurked here for years, but I usually only make 1-2 comments a year.
Natural lawyers are working with a conception of nature that includes things like regulative ends: George probably thinks that procreation is part of the nature of marriage. Since that gives them a way to argue from an `is’ (a description of something’s nature) to an `ought’ (it should realize its regulative ends), many of them explicitly reject the is/ought distinction. But that line of thought can be developed into an argument against the distinction. There’s a section of the relevant Wikipedia page that has a pretty good explanation.
I think there’s something to this, but it’s much, much, much harder to identify the relevant parts of something’s nature than natural lawyers assume. For example, there are all kinds of reasons why people might get married and why we might have and maintain marriage is an institution; but it seems to me all but impossible to pick out the real reasons that make up the nature of marriage.
Dan, I’m glad you’re contributing to the discussion. I’ll be interested in seeing how you relate your description of George’s reasoning in your post above to his argument that infertile and elderly couples can still have “real” marriages (I’ll just ask one favor — hold off until we get to that part of the article).
Along those lines, I’d like to point out that while pregnancy and birth are necessary for child-rearing, it’s not necessary that the couples who set in motion the pregnancy and birth may not be the same couple who gets married in order to rear the child (a fact that’s long been true even in the absence of same-sex couples).
By the way, Dan, I hope I made it pretty explicit in Part II that I wouldn’t want to offend George by calling him a Platonist. And I agree (you’ll see this in an upcoming post) that it’s Aristotelian to approach the question by asking what most people think of marriage. It’s just that such an approach happens to be antithetical to much of what George writes in his article. Contradictions abound.