Reply to George: IV. Parallels to Interracial Marriage

[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.]

Pages 247-250: In which Robert George explains the structure of his article and makes a claim so outrageous it undermines his basic credibility.

George previews the rest of the article.

George splits his article into two parts.

Part I:

• Defends the idea that that “the nature of marriage (that is, its essential features, what it fundamentally is) should settle this debate.”
• “Shows how the common good of our society crucially depends on legally enshrining the conjugal view of marriage and would be damaged by enshrining the revisionist view — thus answering the common question, ‘How would gay civil marriage affect you or your marriage?’”
• Explains why infertile opposite-sex couples can still have real marriages.
• Accounts for why the state should enact any marriage law at all.

As for Part II:

But many who accept (or at least grant) our core argument may have lingering questions about the justice or consequences of implementing it. Part II considers all of the serious concerns that are not treated earlier…

All of them? Really? It takes a certain intellectual arrogance to claim with such certainty that you’ve even identified all the serious concerns around an issue, much less dealt with them.

Anyway.

George wanders off track.

At this point, we might reasonably expect Robert George to start explaining his answer to What is marriage. Instead, he detours into bans on interracial vs. same-sex marriage:

Revisionists today miss this central question — what is marriage? — most obviously when they equate traditional marriage laws with laws banning interracial marriage. They argue that people cannot control their sexual orientation any more than they can control the color of their skin. In both cases, they argue, there is no rational basis for treating relationships differently, because the freedom to marry the person one loves is a fundamental right. The state discriminates against homosexuals by interfering with this basic right, thus denying them the equal protection of the laws.

But the analogy fails: antimiscegenation was about whom to allow to marry, not what marriage was essentially about; and sex, unlike race, is rationally relevant to the latter question. Because every law makes distinctions, there is nothing unjustly discriminatory in marriage law’s reliance on genuinely relevant distinctions.

But — no! Antimiscegenation was not about whom to allow to marry. Whites could marry; so could non-whites. Antimiscegenation was about whom one is allowed to marry. Just like bans on same-sex marriage.

According to George, race isn’t rationally relevant to what marriage is about, while sex is (actually, I don’t know whether by “sex” he means gender, or sexual activity, or both). But he still hasn’t proven that his procreative/conjugal view of marriage is the only permissible view: until he achieves his own goal of establishing what marriage is, he can’t make claims about what’s rationally relevant to it. And so once again we him sneaking his unproven conclusion into his argument.

(By the way, the National Organization for Marriage, a group co-founded by Robert George, recently tried to use empirical data to show that gender is relevant to marriage. Sadly, though they don’t seem to realize it, their logic would lead to the conclusion that race is relevant, too, in much the same way. It’s almost tragic, really, this inability of our opponents to recognize the consequences of their beliefs.)

George tries sneaking it in again.

George continues:

Opponents of interracial marriage typically did not deny that marriage (understood as a union consummated by conjugal acts) between a black and a white was possible any more than proponents of segregated public facilities argued that some feature of the whites-only water fountains made it impossible for blacks to drink from them. The whole point of antimiscegenation laws in the United States was to prevent the genuine possibility of interracial marriage from being realized or recognized, in order to maintain the gravely unjust system of white supremacy.

By contrast, the current debate is precisely over whether it is possible for the kind of union that has marriage’s essential features to exist between two people of the same sex.

Oh, that slippery use of “conjugal” again. What does he mean? Not “marital,” because that would make his definition of marriage an empty tautology (marriage is consummated by acts related to marriage). Not “procreative,” because later he says that infertile couples can commit conjugal acts. He must mean something as clinical as insertion of penis into vagina.

Now, one thing is certainly true: Opponents of interracial marriage never denied it was possible for blacks and whites to makes sexual unions — that’s what they were afraid of! But that doesn’t mean they understood such a thing to be marriage. And so here he is, again sneaking in his own definition of marriage: “marriage (understood as a union consummated by conjugal acts).” But Professor George, you haven’t established that understanding yet. Nor, I think, did the opponents of interracial marriage ever assume such a thing.

George establishes the analogy while trying to wreck it.

In fact it’s easy to argue some of them did deny “real” marriage was possible between the races, even if they didn’t use George’s terminology. This is from original trial judge in Loving v. Virginia who convicted the Lovings for interracial marriage:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

The judge says interracial marriage goes against God’s intent, just as many opponents of same-sex marriage argue that a gay marriage cannot be a real marriage because it violates God’s.

The parallels don’t end there — in fact, we should thank George for pointing them out. Let’s just swap out some of his words, and it’s easy to prove that for many people:

The whole point of antimiscegenation law anti-same-sex marriage law is to prevent the genuine possibility of interracial marriage same-sex marriage from being realized or recognized, in order to maintain the gravely unjust system of white heterosexual supremacy.

Will George deny some people worry that marriage equality sends a message that being gay is just as acceptable as being straight? If so, that would just betray a lack of research. Of course, he might deny that such a thing same-sex marriage is even a “genuine possibility” (which would have him sneaking in his conclusion again) or that heterosexual supremacy is “unjust” (which would have him sneaking — oh, you know the rest).

George says two things that just aren’t true.

Moving on:

Revisionists do not propose leaving intact the historic definition of marriage and simply expanding the pool of people eligible to marry. Their goal is to abolish the conjugal conception of marriage in our law and replace it with the revisionist conception.

Stop. We are not expanding the pool of people eligible to marry, and this points up a key difference between same sex marriage on the one hand and marriage with animal or a child on the other. With same-sex marriage, no one new is being added to the pool. Our opponents’ insistence ignoring this difference shows up the glibness of their thinking when they posit a slippery slope to bestiality and child marriage.

George’s second-sentence above is flat-out wrong. Do marriage equality activists want to abolish the conjugal/procreative view of marriage? Most of us simply want to recognize the fait accompli that this procreative view is not the only view active in our laws and customs, and hasn’t been for some time. The revisionist/common conception is already in place — legally, culturally, historically, and in the everyday practice of marriage as it exists in the real world.

George gets slippery with “discrimination.”

Here’s where George really gets into trouble:

More decisively, though, the analogy to antimiscegenation fails because it relies on the false assumption that any distinction is unjust discrimination. But suppose that the legal incidents of marriage were made available to same-sex as well as opposite-sex couples. We would still, by the revisionists’ logic, be discriminating against those seeking open, temporary, polygynous, polyandrous, polyamorous, incestuous, or bestial unions. After all, people can find themselves experiencing sexual and romantic desire for multiple partners (concurrent or serial), or closely blood-related partners, or nonhuman partners. They are (presumably) free not to act on these sexual desires, but this is true also of people attracted to persons of the same sex.

So what’s going on with this paragraph? George accuses us of defending marriage equality by opposing every possible form of discrimination. Then he calls us out for hypocrisy based on our willingness to discriminate against people who want to marry children or beasts.

There is a mountain of error here, most of it because George shifts between two different meanings of discrimination.

1. George errs in saying the analogy to miscegenation relies on the assumption that any distinction is unjust discrimination. We don’t need to assume — in fact, we don’t assume — that any distinction is unjust. Rather, we rely on the argument (not the assumption) that banning interracial and same-sex marriage both constitute unjust discrimination, and for much the same reason. As Olson and Boise make the case: this particular distinction is harmful to many people and serves no good purpose. George might disagree with them, but Olson and Boies don’t require the assumption that every conceivable distinction is unjust.

In fact, this first sentence in George’s paragraph is so thoroughly wrong that it wounds the credibility of the whole article. I have to admit, though, some gay activists confuse the issue when they claim right to marry anyone they love and have the marriage recognized. That’s sloppy rhetoric (I don’t support the right to marry kids, for instance). But it’s not a cornerstone of our argument.

2. George errs — or is at best misleading — when he says according to revisionist logic we discriminate when we ban unions that are incestuous, bestial, etc. It’s not just according to revisionist logic but according to George’s logic, too. From page 249: “Because every law makes distinctions, there is nothing unjustly discriminatory in marriage law’s reliance on genuinely relevant distinctions.” In other words, we can all agree it’s discrimination, and most of us can agree it’s not unjust. There’s no gap here between the conjugal/procreative and the revisionist/common view.

3. George errs — or is being slippery — when he drops “unjust” from his comments about discrimination between his first sentence and his third. The only way this paragraph makes sense is if he’s assuming revisionists view all discrimination as unjust. But for instance, it’s easy to argue that laws against pedophilia justly discriminate against pedophiles.

I’m perfectly happy to support laws that discriminate against pedophiles, murderers, rapists, and thieves. It’s ludicrous to assert that any opposition to discrimination requires one to oppose all forms of discrimination, all forms of making legal distinctions.

Obviously, George is also being slippery with the term “discrimination.” Compare these two definitions:

While #2 allows the existence of “just discrimination,” #1, which reflects the term’s popular usage, makes it an oxymoron. George is sliding back and forth between technical definition and popular understanding in these sentences, and that adds no clarity to the discussion. Clearly, when we condemn bans on same-sex marriage because they discriminate, we mean the popular definition of discriminate. George is just being silly when he claims we mean it as opposition to making any sort of distinction at all.

We can discuss George’s “open, temporary, polygynous, polyandrous, polyamorous, incestuous, or bestial unions” at some other time. For now, it’s enough to point out that the first sentence of his paragraph is patently untrue, and any arguments built on that first sentence fail as well.

What does this add up to?

Let me summarize, and we’ll see that George is almost entirely wrong in this section.

• George has no right to say gender is relevant to marriage while race is not, because he still hasn’t established his answer to What is marriage?

• The bans on interracial and same-sex marriage are analogous in several important ways:
  • The bans do not address who can marry, but whom one is allowed to marry.

  • Some banners think such marriages are contrary to God’s intent and cannot be “real” marriages.

  • Some banners hope to perpetuate their own societal supremacy at the expense of a minority.

  • Both bans constitute unjust discrimination in that they harm the targets of the law for no good reason.

• Marriage equality proponents can still support bans on other forms of marriage as long as we can show they make just distinctions (e.g., bans on marriage with children may distress pedophiles, but the bans serve to protect children from exploitation and abuse; also our society has long held that children lack the capacity to consent to contracts, a distinction that long precedes the debate on same sex marriage).

Did I miss anything?

Next: George defends the existence of “real” marriage as something independent of the government’s laws on marriage, and I (sort of, kind of) agree.