Reply to George: V. Can We Talk About “Real” 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 250-252: In which Robert George works hard to establish his right to talk about real marriage.

How real is “real marriage”?

Robert George wants to show “real marriage” is a meaningful concept.   He’s got a good starting point: the fact that most “revisionists” think it’s wrong to ban same-sex marriage but are fine with banning other kinds, such as marriage with a child or marriage between brother and sister

Revisionists who arrive at this conclusion must accept at least three principles.

First, marriage is not a legal construct with totally malleable contours — not “just a contract.” In other words, it’s not merely whatever our laws claim it to be — otherwise, there’d be no basis for claiming marriage law is wrong and must be changed.

Second, the state is justified in recognizing only real marriages as marriages.

Third, there is no general right to marry the person you love, if this means a right to have any type of relationship that you desire recognized as marriage.

First:  Marriage isn’t just whatever we say it is.

George has a point here. I just don’t like his reasoning. He’s saying if marriage is nothing more than a set of rules created by the government, then there’s no standard for what marriage law should be. And if there’s no standard, there’s no basis for saying current law is wrong.

But…no. Even if marriage were just whatever the government decrees (which I don’t believe), we could still appeal to more fundamental principles — like equal treatment under the law — to argue that marriage law must not discriminate against broad swaths of the citizenry for no good reason. So marriage can be “just a contract” and yet not have “totally malleable contours. “ It could still be possible for the law to “get marriage wrong.”

A philosophical digression (you can skip it if it’s not your bag)

George is arguing against nominalism here.  Remember Plato and his notion that concepts like “horse” and “triangle” are perfect forms that exist in a higher realm that’s more real than our own?  Nominalism goes to the opposite extreme.  It holds that a term like human has no meaning, no reality, except as a name we use to designate all the individual humans we can think of (nominalism and name have the same linguistic root).

You know all that speculation about what makes humans human?  About the essence of being human?  Whether it’s our ability to reason, or plan, or laugh, or make tools, etc.?

Nominalists would have none of that.  To them, individual human beings are real, but abstract concepts like human are not.  Human is just a label, a tag with no meaning apart from those individuals.  It’s just a handy collection of five letters that we use in our heads and in language to refer to all those individuals.  There is no essence, no essential set of traits that make us human.

Nominalists would also say there’s no such thing as marriage — certainly no such thing as real marriage.  Marriage is just an eight-letter tag that we use to describe the arrangements of all those individuals who call themselves married.

(Clearly, this simplifies a complex idea, one whose subtleties I don’t fully grasp myself.  If you like this sort of thing, check it out by starting here and then going here).

I’m with George on this.  I’m not a nominalist.  George and his co-authors make this case against nominalism:

Consider friendship. As with marriage, the particulars of friendship vary widely by time and place. But also like marriage, friendship is a human reality, a distinctive human good, with certain essential features independent of our social or linguistic practices. For example, it essentially involves each person’s actively willing the other’s good, for the other’s sake. And again like marriage, friendship (the human reality, not our use of the word) grounds certain moral privileges and obligations between its participants and even between the friends and others who might interact with them. So friendship, like marriage, is not just a social construct.

If we said that John and Joe, who just exploited each other, were not “real friends,” we would not just mean that a certain word did not apply to their bond, or that society failed to treat that bond as it does certain others. We would primarily mean that John and Joe were missing out on a distinctive, inherently valuable reality — a human good, for which other goods are no substitute — because of a failure to meet its inherent requirements, which are not purely socially constructed. Similarly, a relationship is not a marriage just because we speak and act as if it is, nor is a relationship not a marriage just because we fail to do so.

And they sum it up even better here:

[T]wo people who do not will each other’s good are not just missing out on a label, “friendship”; they are missing out on a human good whose specific benefit or fulfillment is not available otherwise.

I’d like to point out that this is not an objective analytical argument.  It depends entirely on your own personal experience of friendship.  But I find it convincing anyway.

Marriage is not just a word.

So is marriage “real” or is it just an arbitrary whatever-we-say-it-is?  I bet most of us would say “real.”  Maybe some activists are in the fight purely because they oppose any law that discriminates for no good reason, but I don’t know them.  Marriage would have little emotional significance if it were in fact “just a contract,” like a catering agreement or a lease on a car.

Many (most?) gays and lesbians have been raised to view marriage as more than that, as something definite and real.  Two men or two women find themselves in a relationship different from any other they’ve known, and say, “Yes, this person — this person! — is the one I want to marry.”  Speaking just for myself, if it weren’t for that sense of reality, I wouldn’t find it so bewildering to be told my relationship doesn’t deserve that status.

But I don’t agree with George completely.  Yes, marriage is real, but what does “real” mean?  Remember that George is a Catholic natural law philosopher.  He thinks we can reason our way to ethical and moral truth, but the conclusions have to match the church’s interpretation tof he Gospels.  He’s committed to the idea that marriage was created by God for humans, and humans cannot change God.  He may try to set that aside in his reasoning, but if he believes it he can’t truly abandon it. This puts him squarely back in a Platonic frame of mind, with ideal “form” called “marriage” that originates in a higher realm.

Meanwhile, I’m heading down Aristotle’s road:  I would say marriage is real because human beings have created it. We’ve done it by trial and error over thousands of years. And if you want to find out what it is, ask the questions mentioned in my first post: let’s look at what people in this world call marriage, what led them to marry, and what they hope to achieve by marrying. Use that to define what marriage is.

This assumes, of course, that human beings have some commonality, some basic nature with basic needs we’re trying to fill. Marriage is not infinitely malleable because human nature isn’t, either. But marriage law does vary from place to place and time to time. First, because some aspects of marriage law simply depend on circumstance and may not be essential to marriage. Second, because human nature isn’t a narrow and obvious thing, so there are no narrow and obvious answers.  And finally, because our understanding of human nature itself can change.

Thank God marriage has changed!

For instance: Our concept of human nature has changed in the past few centuries when it comes to women. When lawmakers stopped viewing women as fragile creatures, intellectually inferior, emotionally undependable, and helpless without male protection, that was a change in our view of human nature. And marriage changed accordingly. Coverture — the notion that married women are legally just an extension of their husbands, to whom they must submit in almost all ways (including rape and a good slap now and then) — disappeared. Men and women approached equality in marital law, and the government no longer enforced gender roles.

This created the possibility of same-sex marriage. As long as the law had one role for a man and a different role for a woman, marriage required a man and a woman. With that out of the way, though, what’s to prevent two men or two women from marrying? Mostly, it seems, another change in our view of human nature. People are more open to marriage equality if they view homosexuality as a healthy, normal (though perhaps unusual) facet of human nature — if they see that love and commitment between two men or two women can mirror that of an opposite-sex couple.

Unfortunately, our understanding of human nature is incomplete and contradictory. Marriage is real because it’s a human invention based on human nature, but it’s gone through constant tinkering as our ideas of what it means to be human constantly change. But that means we can still follow Aristotle’s lead and figure marriage out by searching for its common purpose (or common purposes, as it may be).

That’s a bit messy for George. He wouldn’t consider it “principled thinking.” And this is what I mean when I say we can’t let Robert George set the terms of the discussion. He’ll use careful logic to reason from as little evidence as possible. In fact, he’ll view this as a virtue. We can pick apart his reasoning to some degree, but we can also dispute pieces of his argument by asking, “Can he demonstrate this in reality? Does this fit my own experience? Does it match the facts of the world?”

Second, the state is justified in recognizing only real marriages as marriages.

No, this is wrong:  contrary to George’s thinking, “revisionists” can deny government recognition of child marriage without saying “the state is justified in recognizing only real marriages as marriages.” I’m going to be picky here, just to show how George can sloppy be in his thinking.

Strictly speaking, we could base our exclusion of incest and child-marriage on a different principle.  For instance, that the government must accept any claim to marriage as valid unless there is a compelling public interest not to, and concerns about privacy rule out any government determination of whether a couple is fertile.  You can invoke this principle without any reference to “real” marriage at all. (Sidenote: I’m  tossing in that privacy clause because George wants to know why “revisionists” don’t want to let infertile incestuous couples marry.  Trust me, I’m coming back to that in a later entry.)

Now, I’m not comfortable with that principle, but it would do the job.  I include it just to how George draws conclusions that go way beyond what is warranted.

In fact, I can actually live with George’s second point, though perhaps not in the way George intends. George thinks that we can, with certainty, identify the core and essential features of marriage and confidently exclude any relationship that doesn’t meet the standard.  I would say the question is more of a messy empirical investigation and the findings will be limited by our experience and our understanding of human nature. Certainty is a hard standard to meet, so we should only exclude people with great care and err on the side of inclusion.

Third, there is no general right to marry the person you love.

Finally, I agree with the third point, in my own way. A pedophile attracted only to children has no right to marry the little girl or boy of his choosing.

Okay, that’s it.  All the throat-clearing is out of the way.

Next: George finally – finally! – explains why only a man and a woman can be married.