Saga of the Jasonite

The continuing adventures of that eternal man of mystery…

What is Marriage? Part Four, Marriage isn’t Malleable

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Marriage's terms are not infinitely negotiable

Marriage’s terms are not infinitely negotiable

This is part four of my series on marriage, summarizing Girgis, Anderson and George’s book and interspersing it with my own comments. This article will focus on the second argument of some who think that marriage is malleable to no end, which is one of the main assumptions by those who want to change marriage laws today. They say “marriage has no distinctive public value, and this being the case the state can remake the definition of marriage to fit whatever our preferences are.” In this case there is no “right answer” for the state’s marriage policy any more than for the national bird, it’s a matter of what folks agree on. There are several problems associated with this view:  first, it’s often motivated by the fallacy that because social practices are partly constructed they must be entirely constructed; I’ll go into what that means shortly. Second, it can make no sense of major philosophical and legal traditions. Third, it contradicts the spirit of most revisionist arguments and would imply that the revisionists’ view is as unjust as they consider the conjugal position to be. Finally, even if this view were true, it would provide no good basis for the revisionist view.

Point one. Marriage is a basic aspect of human well-being, valuable in and of itself, and in a way that other goods cannot substitute for–see Part Two of my series. When I say that permanent commitment is necessary for marriage, I mean there’s a distinctive human good that can only be realized through a vow of permanence–it’s not negotiable. To agree that goods (such as friendship, knowledge, etc) have some objective features one does not need to believe in God, just some constants of human nature. Consider the contrast between marriage and friendship. Marriage and friendship have taken different forms across history, but no one is fooled into thinking that they do not have a basic core quality. True friendship requires mutual good will and cooperation; without this quality, one does not have friendship. A British royal wedding looks very different from a Navajo wedding, for example, but the core qualities remain. Marriage has a core, fixed by our nature as sexually reproductive beings. To deviate from it is to miss a crucial part of this basic human good.

What is considered most basic to marriage–things like bodily union and connection to family life–are nearly universal in marriage practice. So marriage is partly constructed by the culture it is in, but it’s also constructed by our biology and the basic good of family life. This is not the same thing as saying that marriage is *entirely* constructed by society, as if biology and a connection to family could be ignored. In other words, saying that some of the details of marriage can be determined by culture (British royal vs Navajo) is totally different from saying that the basic foundations of marriage is subject to a vote. Marriage is marriage with the accompanying goods if these foundations are present, and is not marriage if they are absent.

Point two. The conjugal view has been developing for as long as there has been sustained reflection on marriage. Important philosophical and legal traditions have long distinguished friendships of all kinds from marriage. Socrates, Plato, Aristotle, as well as many others defended this view, even amid highly homoerotic cultures (as the Greeks and Romans were). Plutarch’s definition, for example, of marriage as a special kind of friendship uniquely embodied in sexual intercourse. He also affirms that intercourse with an infertile spouse realizes the good of marriage, something other ancient thinkers took for granted even as they denied that other sexual acts could do the same. To repeat, for hundreds of years, while infertility was no ground for declaring a marriage void, only intercourse between a man and a woman was recognized as consummating (in other words completing) a marriage. No other sexual acts could. If marriage were regarded as simply a legal tool to keep parents together for their children, evidence of infertility (like old age!) would have been grounds for voiding a marriage. If the law were targeting homosexual relationships, it would have counted any sexual act between a man and woman adequate for consummation. There is only one explanation:  the law reflected the rational judgment that unions consummated by sex were valuable in themselves, and uniquely different from other bonds. In short, the conjugal view.

Points three and four. If marriage were a fiction designed to promote a social function, there would be no natural right to marriage that marriage laws might violate by being defective. If this view were true, it would be unjust not to recognize polyamorous unions as marriages. However both of these results are repugnant to most revisionists, and in fact are contradicted by their own arguments. As for the first point, if (as I show in part 5) abolishing the conjugal view of marriage would undermine the stability that makes marriage good for children then traditional marriage law would promise great social usefulness. As to the second point, it’s hard to see how revisionists by their own principles could not recognize polyamorous unions as marriage. The suggestion that those in polyamorous relationships today settle for the freedom to live as they choose but without social approval might seem offensive, but most revisionists support only monogamy as a legal norm. The points here suggest that most people on both sides of our current debate reject this view. They agree that marriage has certain necessary features, they only disagree on whether sexual complementarity is one.

The strong links between stable marriage and children’s welfare, and between children’s welfare and every dimension of the common good give the state strong reasons to recognize marriage. But more liberal critics are also mistaken to think of marriage as merely some tradition of our law and culture. It is a human good with a fixed core that we are equally wise to recognize and unable to reshape. Those that ask “what’s the harm if we did?” is what part five of this series will address.

                   Part Three                                                                      Part Five

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