What Makes a Marriage? Love, Sex, or Comprehensive Union - by Sherif Girgis, Ryan T. Anderson and Robert P. George

In TPD

 

Prof. Charles Reid thinks love makes a marriage. He claims we think sex makes a marriage. In truth, comprehensive union makes a marriage. And getting marriage right matters for everyone.

 

Earlier this month, at the annual Fall Conference of Notre Dame’s Center for Ethics and Culture, two of us (Girgis and Anderson) participated in a public conversation with Professor Charles Reid on the subject of “Marriage, Catholicism, and Public Policy.” There, Reid amiably defended his view that two men or two women can form a marriage, and that civil marriage should be redefined accordingly.

In a follow-up piece in the Huffington Post, Reid attributes to our book, What Is Marriage? Man and Woman: A Defense, the argument that sex is what makes a man and a woman permanently bonded and hence married. Against the obvious point that one-night stands don’t make a marriage, he claims that we would invoke marital vows but never really stop to consider what might motivate such vows in the first place. If we did, Reid argues, we would see that it is not matching “bodily design[s]” but “human affection” that really “makes a marriage.”

So for Reid, the real question for the marriage debate is “who is capable of love”—by which he means a certain “emotion.” And that, he thinks, is an empirical question now settled by science showing same-sex bonds to be stable.

In his op-ed and our debate, Reid mangles our view (and the historic understanding) of marriage. In its place, he proposes a view vulnerable to objections—some quite obvious—that Reid himself laid out years ago, before he altered his stance on the issue. Here we address his distortions of our view, and the weaknesses in his own, before turning to the social stakes of the debate.

Distortions

Reid says that we think a man and woman’s sexual intercourse “is enough to create a permanent union.” We have never said or written any such thing, for the simple reason that we consider it obviously false. To suggest otherwise, Reid cites a passage in our book in which we point out that the kind of bodily union that exists within a person is possible between two people, but only in coitus. What makes a person’s heart, lungs, and other parts “one flesh” is that they are actively coordinated toward a single bodily end (life) of the whole (the person himself). Likewise, we argued, in coitus a man and a woman participate in a bodily coordination with a single bodily end (reproduction) that pertains to the whole (the couple).

Nowhere in the passage (or even on the page) cited by Reid do we address the marital norm of permanence. So, pace Reid, we don’t think sex itself creates ex nihilo a permanent bond. Nor do we think sexual complementarity is what motivates a man and a woman to pledge permanence.

What makes a marriage—what marriage is—is not just love or sex but comprehensive union. That—total union with the beloved—is what romantic love seeks. Since persons are embodied, one element of total personal union is bodily union—which only a man and a woman can form. That is what we argue in the passage cited by Reid.

Of course, there is more to marriage. It is comprehensive, not just in the dimensions of the partners united (mind and body), but in the range of goods toward which it unites them. Marriage calls for the wide sharing of domestic life because it’s inherently fulfilled by family life. And that is so because the act that makes marital love is also the kind of act that makes new life.

In other words, just as only a man and a woman can unite in both mind and body, so only a male-female bond can naturally produce a child or inherently call for a comprehensive sharing of life. Only such a bond can be oriented by its nature to the development of whole new human beings—i.e., not just this or that good, but new participants in every good—and thus to the all-around sharing of domestic life.

And finally, this twofold comprehensiveness of marriage—in the dimensions of the partners united and the range of goods uniting them—calls for equally comprehensive commitment. That means a commitment of one’s whole self, for one’s whole life: exclusive and permanent.

In short, it is not emotion alone (as Reid supposes), or sex alone (as Reid wrongly supposes we suppose), or even sex plus emotion plus childrearing that creates the permanent commitment. Vows do that.

But contra Reid, our invocation of marital vows here isn’t arbitrary. What determines the kind of commitment people should pledge—the type of vow they should make—is the kind of cooperation they seek. What calls for comprehensive commitment are the comprehensive cooperation of bodily union and its fulfilment in family and domestic life.

Indeed, this sort of cooperation doesn’t merely justify comprehensive commitment; it also gives it content. Commitment is never generic; it is always commitment to do certain things. What spouses pledge to be permanently exclusive about is the comprehensive cooperation that begins in the marital act that seals consent, and unfolds into domestic life.

So it isn’t just that other groups (two men, two women, any three or more) can’t form a comprehensive union in these senses, and so have no objective basis to decide to pledge total commitment (as opposed to whatever they happen to prefer). It’s also that if they did make such a pledge, it would be a permanently exclusive commitment to something else: to sharing a home and fostering romantic desire, perhaps. In any case, it would not be commitment to the kind of mind-body union inherently oriented to family life—to marriage.

Against this, Reid’s citation of studies finding stable same-sex bonds—whatever the quality of those studies—is no rebuttal. Our point is not that two men or two women can form only fragile marriages. It is that they can’t engage in the comprehensively unifying act, or form a bond ordered to the comprehensive sharing, that makes a marriage and calls for total commitment.

Reid’s alternative

Now consider the failures of Reid’s view. Though his line—that love makes a marriage—is a familiar slogan, we are certain no one has ever believed it as stated—not even today, not even Reid. The love of mother for daughter, of teacher for pupil, of pastor for flock; the love of brothers or best friends is true love. No one thinks love in these forms can make a marriage. The question is what is distinctive of marital love, and of the specific form of union it takes.

Most people on both sides of the current marriage debate—including Reid, who has occupied both sides—agree that marriage requires a permanent and exclusive commitment. They agree that it is a sexual bond, and that it unfolds into family life. Our view explains and unifies all these features by the idea of comprehensive union.

But to say with Reid that love makes a marriage, and to explain love as intense emotion, is to make nonsense of these same features. Here is how one scholar put it just a few years ago:

Affection is, of course, a good thing. . . . But affection, personal commitment, love between persons, seem to be insufficient, without more, to provide a coherent foundation for marriage. What does it mean to say that a marriage is grounded on “affection”? What if affection, or commitment, vanish? [sic] What if affection cannot be confined to a single party? What if loyalty shifts?

That scholar was Charles Reid. He has now eschewed the conjugal view of marriage as a male-female union for a view of marriage as defined by affection. But nowhere has he answered his own (former) objections to his own (current) view. We reissue Reid’s challenge to Reid.

The Harms of Redefinition

Professor Reid also once grasped the harms of legally enshrining this new vision of marriage-as-emotional-union. As he put it:

I suspect that the lowest common denominator—the state-established default rules that specify the minimum necessary to enter valid marriage—may come to define marriage for a large majority of persons.

In other words, if the law redefines marriage as simple companionship, then every other distinguishing feature of marriage—permanence, exclusivity, monogamy—will become arbitrary in principle, and harder to support in practice.

We argued as much in our early written work on marriage, when some called it scaremongering. But since then, these implications of the emotional-union view have been embraced by many advocates of marriage redefinition. Indeed, if language is a measure of culture, it’s telling that new terms have been coined to encourage people to flout the stabilizing norms that we argued the emotional-union view would undermine.

Thus, a New York Times profile of gay activist Dan Savage, headlined “Married, with Infidelities,” introduced Americans to the term “monogamish”—relationships where partners would allow sexual infidelity, provided they were honest about it.

The article explained: “Savage says a more flexible attitude within marriage may be just what the straight community needs.” After all, the story added, sexual exclusivity “gives people unrealistic expectations of themselves and their partners.” Rather than strive for faithfulness to one spouse, Savage and increasingly many likeminded advocates would have couples embrace sexual openness. And why not, if some find openness more emotionally satisfying, and emotional union is what makes a marriage?

But by the same token, why should marriage—emotional union—be limited to two people in the first place? Thus the word “throuple:” a couple-like union of three. A 2012 New York Magazine piece profiled one throuple:

Their throuplehood is more or less a permanent domestic arrangement. The three men work together, raise dogs together, sleep together, miss one another, collect art together, travel together, bring each other glasses of water, and, in general, exemplify a modern, adult relationship.

Finally, our culture’s romantic lexicon now includes “wedlease,” introduced in an August 2013 op-ed in The Washington Post. Why should marriage be permanent if what defines it is emotion, which is notoriously inconstant? Why not have temporary marriage licenses, as with other contracts? “Why don’t we borrow from real estate and create a marital lease?” the author asked. “Instead of wedlock, a ‘wedlease.’” He continues:

Here’s how a marital lease could work: Two people commit themselves to marriage for a period of years—one year, five years, 10 years, whatever term suits them. The marital lease could be renewed at the end of the term however many times a couple likes.… The messiness of divorce is avoided and the end can be as simple as vacating a rental unit.

Of course, we’re not primarily concerned with linguistic trends. Our central point is that if people are taught by the law that marriage is fundamentally an emotional union for personal fulfillment, as Reid suggests, it will be more difficult for people to see the point of permanence when emotion fades, of exclusivity when the heart wanders. That will undermine these norms in practice—just as no-fault divorce (we now know) didn’t simply make the separation process easier but weakened public appreciation of permanence, making people more likely to decide to split. Similarly, if we redefine the law to make mothers and fathers optional, it will be hard for people to see that they are critical. And that will weaken motivations to stick with a marriage for the children, or indeed to marry before having children.

All these developments, in turn, will harm the very interests that motivate and justify the state’s role in marriage. As a policy matter, after all, marriage is about attaching a man and a woman as husband and wife to be father and mother to any children their union produces. When a baby is born, there is always a mother nearby: that is a fact of reproductive biology. The question is whether a father will be involved in the child’s life, and for how long. Marriage makes a man likelier to be committed both to the children that he helps generate and to their mother.

It does so for the sake of the children in question, and for everyone else. For whatever one thinks of the morality of sexually open, multipartner, and deliberately temporary bonds, their social costs run high. The marital norms of monogamy, sexual exclusivity, and permanence make a difference for society. They reduce the numbers of fatherless children and fragmented families, which improves prospects for the whole of the next generation.

Redefining marriage collapses the distinction between marriage and companionship in principle and in practice. It therefore undermines all the marital norms—so critical for spousal stability and the next generation’s well-being—that explain the law’s involvement in marriage. Professor Reid once seemed to understand this. He now seems to overlook it, and to have difficulty even grasping the contrary view he once defended.

The Supreme Court, You and Me, and the Future of Marriage - by Sherif Girgis, Ryan T. Anderson and Robert P. George

In The Public Discourse 

Here we’ll describe just what the Court said and didn’t, what it got wrong, what that means in practice, and where it leaves the fight for a sound marriage culture

Here’s the least reported fact about yesterday’s rulings on marriage: the Supreme Court refused to give Ted Olson and David Boies, the lawyers suing to overturn Prop 8, what they wanted. The Court refused to redefine marriage for the entire nation. The Court refused to "discover" a constitutional right to same-sex marriage. Citizens and their elected representatives remain free to discuss, debate, and vote about marriage policy in all fifty states. Citizens and their elected representatives still have the right to define marriage in civil law as the union of one man and one woman.

And we should continue doing so. Already, in the wake of yesterday’s ruling, Governor Mike Pence of Indiana has called on his state to pass a constitutional amendment defining marriage as the union of a man and a woman. Marriage matters for children, for civil society, and for limited government. Marriage is the institution that unites a man and a woman as husband and wife to be father and mother to any children that their union produces. And that’s why the government is in the marriage business. Not because it cares about adult romance, but because it cares about the rights of children.

If you believe, as we do, in the importance to children and to society of the marriage-based family, then of course you were hoping for different results in yesterday’s marriage cases. But you probably also put your trust in the institutions of civil society—in that vast arena between man and state which is the real stage for human development. And in that case, you never expected a court of law to do our work for us, to rescue a marriage culture that has been wounded for decades by cohabitation, out-of-wedlock child-bearing, and misguided policies like no-fault divorce. Your only question at 10:00 AM yesterday was whether the Supreme Court would leave us the political and cultural space to rebuild that culture, or get in the way.

The answer was that the Court would leave us some space—for now. Five justices in United States v. Windsor have seen fit to put the republic on notice. While coy on state marriage laws, they have held that we the people—through overwhelming majorities in Congress and a Democratic President—somehow violated the Constitution in enacting the Defense of Marriage Act.

Here we’ll describe just what the Court said and didn’t, what it got wrong, what that means in practice, and where it leaves the fight for a sound marriage culture.

What Happened in Windsor and Perry

In United States v. Windsor, the Court heard a challenge to Section 3 of the federal Defense of Marriage Act (DOMA), which defined marriage as a male-female union for federal purposes created in federal law. Justice Kennedy and the four more liberal justices—Kagan, Sotomayor, Breyer, and Ginsburg—struck down that section. Dissents were filed by Chief Justice Roberts, Justice Scalia, and Justice Alito, joined by Justice Thomas.

In the second case, Perry v. Hollingsworth, the Court considered Proposition 8, the referendum in which California citizens amended their constitution to preserve conjugal marriage in state law. The California attorney general, normally responsible for defending such laws, refused in this case, so Prop 8’s proponents stepped in. But the Court ruled that they had no standing—no legal right—to do so. Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Ginsburg, Breyer, and Kagan. Justice Kennedy dissented, joined by Justices Alito, Thomas, and Sotomayor.

What That Does—and Doesn’t—Mean

The Supreme Court did not strike down all of DOMA, just Section 3. It left intact Section 2, which prevents the states from being forced to recognize other states’ same-sex marriages. This leads to the broader point that not a single justice said anything against the validity of any state marriage policy, including state conjugal marriage laws. That means, of course, that not a single justice voted to strike down Prop 8. Instead, the Perry majority ordered the Ninth Circuit Court to set aside (“vacate”) its own ruling against Prop 8.

That leaves us with some confusion as to the status of Judge Vaughn Walker’s district court decision that ruled against Prop 8. Some scholars think Walker’s decision must be vacated, too. Each same-sex couple seeking to marry in California would then have to sue for a special kind of court relief, applicable only to that couple. Others think that Judge Walker’s decision would stand, but they debate whether it would apply to all state officials or only the county clerks named in the suit. Governor Jerry Brown, for his part, has directed all county clerks to begin issuing same-sex marriage licenses. This will surely be challenged in state court by the proponents of Prop 8.

Trouble Spots

The Court ruled that Prop 8 proponents were not the right party to bring the suit. Wherever vague and conflicting standing doctrine points, its application here eviscerated the California referendum process. That process was designed to let citizens pass laws, and amend their constitution, to check and balance government officials. If those same officials can effectively veto provisions of the state constitution by refusing to enforce and then refusing to defend them, the point of the referendum process is defeated.

Meanwhile, it is hard to criticize the basis of the DOMA case because it is hard even to say what that basis is. The opinion begins with a learned reflection on how family law has historically (but not exclusively) been left to states. Yet it refuses to strike DOMA down just on that ground. After all, DOMA leaves state family law intact as ever. It controls only how the federal government allocates federal money and benefits when it comes to marriage. Congress can’t impose on the states in this matter, to be sure; but then why would the states be able to impose on Congress?

The Court also doesn’t rest its decision just on equal protection principles, though these too are discussed. If equality required Congress to cover same-sex partnerships with its marriage-related laws, wouldn’t the same be true of the states? Yet the majority claims to reach no decision on the latter.

Finally, the Court doesn’t just rely on the principle that the government can’t deny liberty without due process. On the Court’s own accounting, that rule protects substantive rights only when they are deeply rooted in our nation’s history and traditions. But as of 13 years ago, no jurisdiction on our planet, much less in our nation, had enacted same-sex civil marriage.

So if not federalism, or equality, or due process, then what? What is the basis for the Court’s ruling? As Justice Scalia points out, the Court itself won’t say. It discusses each of these principles before refusing to rely squarely on any. As for how they might stretch, multiply, merge, or pile up to support the Court’s holding anyway, several theories have arisen. But even some who cheer the decision have called its reasoning less than coherent or satisfying.

Justice Kennedy, for his part, is just sure the Constitution prevents the federal government from treating opposite- and same-sex state marriages differently. All he knows, in other words, is that Section 3 of DOMA must go.

In fact, we would have been better off had he stopped there. DOMA, he goes on to insist, must have been motivated by a “bare desire to harm,” or “to disparage and to injure.” Its sole purpose and effect is to “impose inequality,” to deny “equal dignity,” to “humiliate.” He infers all this from a few passages in its legislative history about defending traditional morality and the institution of traditional marriage, from its effects, and from the act’s title. Most importantly—and scandalously, given his obligations as a judge—Kennedy does so with nothing more than passing reference to arguments made for DOMA in particular, and conjugal marriage in general. How else could his reasoning leap from the people’s wish to support a certain vision of marriage, to their alleged desire to harm and humiliate those otherwise inclined?

The effect of this refusal to engage counterarguments is the elevation of a rash accusation to the dignity of a legal principle: DOMA’s supporters—including, one supposes, 342 representatives, 85 senators, and President Clinton—must have been motivated by ill will.

The Heart of the Problem—and Solution

The bottom line? The defense of conjugal marriage matters now more than ever. It won't be long before new challengers come. But whether they succeed may depend on how vigorously the democratic debate is joined by what Justice Alito describes in his clear-eyed dissent.

In his DOMA dissent, Justice Alito goes out of his way to frame the central issue of both cases: They involve, he writes, a contest between two visions of marriage—what he calls the "conjugal" and "consent-based" views. He cites our book as exemplifying the conjugal view of marriage as (in his summary) a “comprehensive, exclusive, permanent union that is intrinsically ordered to producing children.” He cites others, like Jonathan Rauch, for the idea that marriage is a certain commitment marked by emotional union. And he explains that the Constitution is silent on which of these substantive, morally controversial visions of marriage is correct. So the Court, he says, should decline to decide; it should defer to democratic debate.

The Court is likelier to defer to democratic debate if it believes there’s a genuine debate to defer to. If the conjugal view’s supporters are instead cowed into silence, or convinced to forfeit on the ground that loss is “inevitable” anyway, five justices will see no obstacle to imposing the consent-based view nationwide.

Never mind that this emotional companionship rationale entails that moms and dads are interchangeable. Never mind that it makes nonsense of other norms of marriage, unable as it is to justify the limits of permanence, exclusivity, or monogamy. Never mind that by its logic, the law’s “discrimination” against multiple-partner bonds, too, would embody a “bare desire to harm” those most satisfied by other bonds.

The point is that by assuming the consent-based view, the majority in the DOMA decision took sides in the very debate it was claiming to sidestep out of respect for state sovereignty. Had the justices taken the trouble even to describe conjugal marriage supporters’ reasons in their own terms, it would have become obvious that these weren’t bigots but garden-variety political opponents.

So our first task is to develop and multiply our artistic, pastoral, and reasoned defenses of the conjugal view as the truth about marriage, and to make ever plainer our policy reasons for enacting it. That will make it more awkward for the justices to apply their DOMA reasoning in a future challenge to state marriage laws. Only conjugal marriage supporters can decide—by what they do next—whether the Court, when it next returns to marriage, will find a policy dispute lively enough to demand its deference.

Our second task is to take a long—and broad—view. Whenever and however the legal battle is won, our work will have only begun. Despite the Court’s libels against half their fellow citizens, this debate is not about “the bare desire to harm” any group. Indeed, for conjugal marriage supporters it is not, ultimately, about homosexuality at all. It is about marriage. The proposal to define marriage as nothing more specific than your top emotional bond is one way to erode its stabilizing norms, so crucial for family life and the common good.

But it is just one way.

Before same-sex anything was at stake, our society was already busy dismantling its own foundation, by innovations like no-fault divorce and by a thousand daily decisions to dishonor the norms of marriage that make it apt for family life. Atomization results from these forms of family breakdown—and from the superficially appealing idea that emotional closeness is all that sets marriage apart, which makes it gauche to seek true companionship and love in non-marital bonds. Part of rebuilding marriage will be responding to that atomization—reaching out to friends and neighbors suffering broken hearts or homes, or loneliness, whatever the cause. That, too, will make the conjugal view of marriage shine more brightly as a viable social option.

In short, winning the legal battle against redefinition is only a condition of winning the political one. And winning the political one is only a condition (though necessary) for rebuilding a healthy culture.

Yesterday's most important developments in that broadest struggle, of course, did not happen at a marble courthouse in Washington, but in a million minds and hearts and households across the country, as people chose in ways great and small to honor—or not—the demanding ideals of marriage and family, and community. As champions of civil society, we always knew that. Yet it would be naive to deny the law's effect on those ideals. That's why the courthouse matters—and why we must keep up our witness to the truth about marriage, by word and deed, until it is safely beyond judicial overreach.

"What is Marriage?: Man and Woman, a Defense" Part 3/3 - by Sherif Girgis, Ryan T. Anderson, and Robert P. George

"What is Marriage?: Man and Woman, A Defense" Part 2/3 - by Sherif Girgis, Ryan T. Anderson, and Robert P. George

"What is Marriage?: Man and Woman, A Defense" Part 1/3 - by Sherif Girgis, Ryan T. Anderson, and Robert P. George