NYU Law Professor Kenji Yoshino has written at Slate a second critique of the George et al marriage article. And today on Public Discourse, Sherif Girgis, Robby George and Ryan Anderson offer a second reply to Yoshino. It’s worth the read, to say the least. Here’s some excerpts, though I suggest you do it justice and read it in its entirety.
“Our first reply challenged Yoshino to explain his own view of marriage, such that two men or two women could form what is truly a marital relationship. Yoshino: “I thought the answer would be intuitive: I want . . . marriage to widen to permit same-sex couples to enter it.” Translation: Yoshino wants marriage to be whatever it must be such that two men or two women could truly marry. But this is to dodge the crucial—and ultimately unavoidable—question: what is marriage? We had hoped Yoshino would offer what we had offered: a holistic defense of a view of marriage that accounts for marital norms that he wishes to retain, assuming that there are some (e.g., monogamy and sexual exclusivity).
But Yoshino sees his ad-hoc, results-oriented approach as a virtue of his view because, he says, proponents of “trans-historical . . . definitions of marriage have often been time’s fools.” Since “we do not stand at the end of history today,” Yoshino thinks that “only time will reveal” what the moral ideals of “liberty, equality, and justice” require of our marriage law.
We reject this idea of history as a quasi-divine judge. We doubt that Yoshino himself believes that each generation is necessarily more enlightened than the previous one. Such a belief would play into the conservative caricature of progressivism’s alleged faith in the inevitability of moral progress. In any event, it is demonstrably false. Nor can the passage of time as such reveal new principles of justice or equality. History tells us what has happened, not what should happen. Though it might help us predict a policy’s effects on certain human goods, it cannot give us principles for evaluating those effects, or for determining the structure of those goods. But what we sought from Yoshino was his view of the normative structure (the defining norms) of the human good of marriage. Finally, liberty, equality, and justice forbid imposing arbitrary norms. But the question of whether any norm (complementarity, permanence of commitment, monogamy) is essential to marriage and its public purposes, or irrelevant and therefore arbitrary, cannot be answered without a holistic view of the human good of marriage and the point of marriage policy. So to know what justice requires, Yoshino must first address the question that he resolutely refuses to answer, and to which no mere succession of historical events gives any hints: what is marriage?
Yoshino imputes to us what he labels “the common procreation argument” about marriage, which he thinks cannot account for the validity or value of marriages that do not produce children. But we denied that actual procreation was necessary for marriage, and defended as philosophically sound the historic law of marriage that has long regarded infertility as no impediment to matrimony. For marriage is no mere means to procreation, but valuable in itself. That is perfectly consistent with holding, as we do, that the distinctive contours of marriage are what they are in significant part because it is the kind of union that would be naturally fulfilled by having and rearing children together.
After all, any serious account must explain how marriage differs from other types of community—and make sense of the evident fact that the idea of marriage would never have been conceived if human beings did not reproduce sexually. The view that we defend and that our legal tradition long enshrined does both: Marriage, valuable in itself, is the kind of commitment inherently oriented to the bearing and rearing of children; it is naturally fulfilled by procreation. This orientation is related to the fact that marriage is uniquely embodied in the kind of act that is fulfilled by procreation: coitus. By coitus alone, a man and woman can be related much as the organs of a single individual are related—as parts coordinating together toward a biological good of the whole. So marriage is consummated in an act that creates in this sense a bodily union—an extension of two people’s union of hearts and minds along their bodily dimension, thus making marriage a uniquely comprehensive interpersonal union. (By contrast, friendships in general are unions of hearts and minds alone, and so are characteristically embodied in conversations and joint pursuits.) Finally, in view of its comprehensiveness and its orientation to children’s needs, only marriage inherently requires of its would-be participants pledges of permanence, exclusivity, and monogamy. (By contrast, friendships do not require a promise of permanence and are often enhanced, not betrayed, by openness to new members.)
Every single sentence about marriage in the previous paragraph applies equally to any man and woman who have made and consummated their marital commitment, regardless of fertility. After all, each such sentence is just as true of a couple on their wedding night as it is after the birth of a third child. By contrast, not one of these same sentences applies to two men, two women, partnerships of three or more, or by-design temporary or open unions. If Yoshino thinks that we offer no “principled ground” for the distinctions we make, perhaps that is because his inapt label for our view (“common procreation”) has clipped and obscured it.