Reply to George: X. Why Infertile Straights Get to Marry

[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 256-257, and 265-268, in which Robert George explains why infertile opposite-sex couples can still have “real marriages.”

Reading Robert George’s article, I have to wonder whether his reasoning led to his conclusions, or whether he started with certain conclusions and developed reasoning, however tortured, to justify them. This section, more than any other, shows the answer.

The problem and the promise

George now tries to roll a heavy boulder up a steep hill. He’s just not strong enough to do it.

His task in this section — in the whole article, actually — is to develop a theory of marriage that excludes same-sex couples and includes infertile opposite-sexers.  Let’s recap his argument against same-sexers to see why this will be so tough.

• Marriage is comprehensive union.

• A comprehensive union requires bodily union.

• Organic bodily union requires “bodies coordinating toward a single biological function for which each alone is not sufficient.”

• The only candidate for this biological function is reproduction.

• A same-sex couple cannot reproduce, and therefore cannot achieve organic bodily union, or comprehensive union, or marriage.

I hope I’ve thoroughly slaughtered this argument, but for now let’s take it seriously. It would seem this excludes infertile opposite-sexers, too.

But George doesn’t think so. In fact, he promises to show that problem of whether:

marriage is possible between an infertile man and woman—is easily resolved.

“Easily resolved.” Let’s have a look and see.

When do individuals form a unit?

He starts with this analogy:

Again, this is not to say that the marriages of infertile couples are not true marriages. Consider this analogy: A baseball team has its characteristic structure largely because of its orientation to winning games; it involves developing and sharing one’s athletic skills in the way best suited for honorably winning (among other things, with assiduous practice and good sportsmanship). But such development and sharing are possible and inherently valuable for teammates even when they lose their games.

Just so, marriage has its characteristic structure largely because of its orientation to procreation; it involves developing and sharing one’s body and whole self in the way best suited for honorable parenthood — among other things, permanently and exclusively. But such development and sharing, including the bodily union of the generative act, are possible and inherently valuable for spouses even when they do not conceive children.

Therefore, people who can unite bodily can be spouses without children, just as people who can practice baseball can be teammates without victories on the field. Although marriage is a social practice that has its basic structure by nature whereas baseball is wholly conventional, the analogy highlights a crucial point: Infertile couples and winless baseball teams both meet the basic requirements for participating in the practice (conjugal union; practicing and playing the game) and retain their basic orientation to the fulfillment of that practice (bearing and rearing children; winning games), even if that fulfillment is never reached.

People have thrown George a lot of flack for comparing infertile couples to “losers.” He’s said that’s not what he meant, and points out with some fairness that an analogy is not the same as an equation. Marriage, he says, is not a competition; people who focus on that aspect of the analogy are missing the bigger point.

Let’s give him that, and make a stronger critique of the analogy. It’s about people forming a unit because they are working together to achieve a goal.  That’s crucial. Imagine if the baseball players weren’t trying to win. Suppose they were just out on the field to enjoy the day, throw the ball around, hit it a few times, maybe sunbathe. Then they wouldn’t be a team at all, just a few folks having a good time. So you see, goal-oriented behavior matters in George’s analogy (as does the nature of the goal).

This assumption, not pointed out by George, destroys the analogy. I’ll lay it out as clearly and fairly as I can:

The analogy	The reasoning	The conclusion
Baseball players	A group of people	A man and a woman
Who are trying to win a game	Who are working together to achieve a goal	Who are trying to conceive
Are still a team	Are still a unit	Are still a “real” married couple
Even if they fail	Even if they fail	Even if they fail

George’s analogy, then, applies only to infertile couples who are trying to conceive. If baseball players are tossing around a ball, not trying to win, they’re not a team. And if an infertile couple knows they can’t have kids, and they’re just just tossing around on the bed for fun and intimacy, not trying to conceive, then they’re not a real married couple, according to George’s analogy.

Now take a closer look at this odd sentence from the quote above:

But such development and sharing, including the bodily union of the generative act, are possible and inherently valuable for spouses even when they do not conceive children.

I don’t know how many times I can say this: PIV [penis in vagina] is not a generative act for an infertile or elderly couple! It’s not. Not, not, not.

It’s not.

Put differently, there is no sense in which their bodies are “coordinating toward a single biological function for which each alone is not sufficient” — not if that goal is reproduction. They can’t achieve it alone and they can’t achieve it together. And if they’re not even trying? Then they’re like that gang of friends throwing balls around — they’re just doing it for the pleasure and satisfaction of it.

Okay, this is merely George’s analogy. It fails, but that could just be due to bad writing and explanation. We need to dig deeper to show George’s mistakes.

A truly awful implication

George writes:

Any act of organic bodily union can seal a marriage, whether or not it causes conception. The nature of the spouses’ action now cannot depend on what happens hours later independently of their control — whether a sperm cell in fact penetrates an ovum. And because the union in question is an organic bodily union, it cannot depend for its reality on psychological factors. It does not matter, then, if spouses do not intend to have children or believe that they cannot. Whatever their thoughts or goals, whether a couple achieves bodily union depends on facts about what is happening between their bodies.

Stop. Think about what must surely be an unintended logical consequence:

Rape is an organic bodily union.

According to George, organic bodily union does not depend on psychological factors. On intent. On thoughts or goals. Nothing matters but “facts about what is happening between their bodies. “ Even if you take physical violence out of the picture, that still leaves rape by terrifying the victim with the thought or intent of violence. And, according to George’s reasoning, that’s organic bodily union.

In other words, no act of physical love can ever seal a marriage between two men. But rape between a man and a woman can.

Ponder what this reasoning allows. A girl is handed over to a man for a marriage she doesn’t want. If he takes her by force on their wedding night? That’s organic bodily union.  If she stays with him because she’s  cowed into permanent resignation and submission by force of law, because it’s the only way she can keep and care for the child borne of that wedding night rape — that’s a “real” marriage. (And not unheard of.)

But two free women, in a loving, sexual, committed, permanent relationship, raising children together? Nope, no marriage possible.

Something is horribly wrong with George’s definition of marriage, of comprehensive union, of organic bodily union.

Now, George might insist the full-hearted consent is need for a marriage, but this itself would be a radical notion. Throughout much of the world, throughout much of history, a girl married the man her family chose and stayed with him because it was her lot in life and role in the society. If George insists on full-hearted consent, then he’s as much of a “revisionist” as anyone — in fact, his view of marriage, the “conjugal” view, would be possible only because society has adopted what he considers the “revisionist” view.

Still, whether or not George insists on full-hearted consent for marriage, that still leaves rape as “organic bodily union,” which George defines as independent of thought, goal, and intent.

We’re back to spouses as stomachs

George revisits his digestion metaphor:

It is clear that the bodies of an infertile couple can unite organically through coitus. Consider digestion, the individual body’s process of nourishment. Different parts of that process —  salivation, chewing, swallowing, stomach action, intestinal absorption of nutrients — are each in their own way oriented to the broader goal of nourishing the organism. But our salivation, chewing, swallowing, and stomach action remain oriented to that goal (and remain digestive acts) even if on some occasion our intestines do not or cannot finally absorb nutrients, and even if we know so before we eat.

Similarly, the behavioral parts of the process of reproduction do not lose their dynamism toward reproduction if non-behavioral factors in the process — for example, low sperm count or ovarian problems — prevent conception from occurring, even if the spouses expect this beforehand. As we have argued, bodies coordinating toward a single biological function for which each alone is not sufficient are rightly said to form an organic union.

Thus, infertility is no impediment to bodily union and therefore (as our law has always recognized) no impediment to marriage.

The digestion metaphor is odd and misguided, but let’s begin with the most mysterious phrase: “dynamism toward reproduction.” This is (yet another) undefined term. At first I thought by “dynamism” George meant something like, capable of producing change or accomplishing a goal. But in that case, he’s self-evidently wrong because for infertile people, “the behavioral parts of the process of reproduction” have no capacity to produce a reproductive change or accomplish a reproductive goal. That’s what “infertile” means.

Reluctantly, then, I went to the dictionary. The best I could do was “great energy, force, or power; vigor,” but that fails too. Sex between an infertile couple has no reproductive energy, force, power, or vigor. And, as I said above, they’re not “coordinating toward a single biological function for which each alone is not sufficient.”

New analogy, same mistake.

None of this makes any sense to me. The digestion metaphor doesn’t help either. To begin with, forget about stomachs and intestines. George is very clear about distinguishing between behavioral and non-behavioral factors. Intestines are not part of the “behavioral process of digestion.” It’s not behavior: it’s involuntary muscle action. Instead, consider chewing which, like sex, is a behavioral choice.* If a person has a medical condition that makes swallowing impossible, then chewing in fact is no longer “oriented” to the goal of digestion. If the person chews food at all, it will be only to enjoy the flavor.

In other words:  Just as chewing is not a digestive act when digestion is impossible, sexual intercourse is not a reproductive act when reproduction is impossible.

I do not believe George’s words mean what he thinks they mean

George continues:

Thus, infertility is no impediment to bodily union and therefore (as our law has always recognized) no impediment to marriage. This is because in truth marriage is not a mere means, even to the great good of procreation. It is an end in itself, worthwhile for its own sake. So it can exist apart from children, and the state can recognize it in such cases without distorting the moral truth about marriage.

Of course, a true friendship of two men or two women is also valuable in itself. But lacking the capacity for organic bodily union, it cannot be valuable specifically as a marriage: it cannot be the comprehensive union on which aptness for procreation and distinctively marital norms depend. That is why only a man and a woman can form a marriage — a union whose norms and obligations are decisively shaped by its essential dynamism toward children. For that dynamism comes not from the actual or expected presence of children, which some same-sex partners and even cohabiting brothers could have, and some opposite-sex couples lack, but from the way that marriage is sealed or consummated:   in coitus, which is organic bodily union.

This is why George’s critics call his thinking convoluted:  For George, “dynamism toward children” is about a penis entering a vagina, even for elderly or infertile adults who cannot create children, even for fertile adults who have no intention of raising the children they may create. For George, “dynamism toward children” has nothing to do with children at all, real or hoped for.

George’s own phrasing betrays him:  If a comprehensive union depends on “aptness for procreation,” then in George’s eyes infertile couples cannot have a comprehensive union — and therefore, cannot have a marriage. Oh, and there’s another of George’s undefined terms: aptness. But if you look it up you’ll see how wrong he is.

By the way — and I don’t know whether I even need to point this out — George’s tightly-insulated, reality-free logical structure ignores the fact that two romantically-bonded men or women can have a relationship that is oriented toward children.

George admits defeat.

Finally, there’s this:

[M]arriage is not a mere means, even to the great good of procreation. It is an end in itself, worthwhile for its own sake. So it can exist apart from children, and the state can recognize it in such cases without distorting the moral truth about marriage.

This seems like George’s admission of defeat, an acknowledgement that same-sex marriage is real marriage. His escape, though, is to say that recognizing same-sex marriage would be “distorting the moral truth about marriage.”

But what moral truth does he have in mind? Certainly it’s not about children, child-bearing, or the best circumstances for child-rearing — he gives all that up in this very paragraph. The only distinction between an infertile opposite-sex and a same-sex couple is PIV, unrelated to the production of children. Is that his great moral truth?

Marriage must be between a man and a woman because marriage requires a penis in a vagina. So there.

That’s what it amounts to, now that he’s admitted infertile couples to marriage, now that he’s admitted that marriage is worthwhile for its own sake, existing apart from children. Nothing else remains.

The problem and the promise, redux

What did George promise us for this part of his article?

Part I also shows that what revisionists often consider a tension in our view — that marriage is possible between an infertile man and woman — is easily resolved.

Fail.

Even if you think he resolved the issue, it sure wasn’t easy. And how did he “resolve” it? By taking his definition of organic bodily union (“bodies coordinating toward a single biological function for which each alone is not sufficient”) and throwing it out the window.

As I said…fail.

Next: George argues that heterosexuals just aren’t smart enough to raise families in a world with same-sex marriage (well…that might be my own paraphrase).

*  Just to be clear:  Having sex is a behavioral choice. Sexual orientation is not.