Revisionists raise objections to the conjugal view: that it is inconsistent in recognizing infertile marriages, and at odds with the principle of equal access to marriage. Here I’ll show that both objections fail.
First, infertility. An infertile man and woman can together still form a true marriage–a comprehensive union–which would differ only in degree, not type, from a fertile union. Recognizing such unions as marriages has none of the costs of recognizing same-sex or other unions, most of the benefits of recognizing fertile unions, and at least one additional benefit. To form a true marriage a couple needs to establish a comprehensive mind-and-body union, and be permanent and exclusive. With or without children these relationships are all comprehensive in these three senses, and without exception, same-sex and multiple-partner unions are not. A marital act between two people must combine the right behavior with the right intention.
Take intention. For any couple’s act of bodily union to be an act of marital union, they need not choose it for the sake of conceiving, but simply to make concrete their marriage. An act of sexual intercourse is bodily union whether or not it causes conception, as our law has always recognized. The man and woman’s bodies are still united toward reproduction. The nature of the behavior doesn’t depend on what happens hours later outside of their control: whether an egg is fertilized. Intercourse remains a form of bodily coordination toward a single bodily end (whether or not it is an end they seek) and thus a form of bodily union. And that–being a bodily union, not actually causing conception–is what makes sex, if chosen with the intention to embody or renew their marriage, a valuable part of the whole: a marital act that extends a marital, or comprehensive, union. That is why, as our law has always recognized, infertility is no impediment to marriage, something good in itself, existing with or without children. A friendship of two men or two women is also valuable in itself. But lacking the capacity for bodily union it cannot be valuable specifically as a marriage: it cannot be comprehensive, nor ordered to procreation on which marriage depends.
Recognizing infertile marriages carry none of the costs of recognizing same-sex, polyamorous or other nonmarital unions. It does not make it harder for people to realize the basic good of marriage, for it does not undermine the public’s grasp of the nature of true marriage. Nor does it undermine marital norms, or make mothers or fathers seem superfluous. It prejudices no one’s religious or moral freedom. An obviously infertile couple can live out the features of true marriage, and so contribute to a strong marriage culture. There is also one special benefit. To recognize only fertile marriages would be to suggest that marriage is valuable only as a means to children–and not what it truly is, a good in itself. So recognizing the marriages of infertile couples serves at least one purpose better than recognizing only fertile unions does: to recall for us the crucial truth that marriage has value in itself.
Second, equality. Revisionists often equate traditional marriage laws with laws banning interracial marriages, stating that all should have equal access to marriage. The analogy to interracial marriages fails for many reasons, but two are decisive. First, opponents of interracial marriage did not deny that marriage was possible between Blacks and Whites any more than segregationists argued that some features of the Whites-only drinking fountains made it impossible for Blacks to drink from them. The reason laws banning interracial marriage existed was to maintain White supremacy. Many states refused to recognize marriages between Black slaves for similar, White supremacist reasons; and marriages between two different non-White races, having no effect on White supremacy, were generally allowed. Revisionists would not leave our basic understanding of marriage intact and simply expand the pool of people eligible to marry, they would abolish the conjugal view of marriage from our law and replace it with the revisionist view.
Second, while history shows that hostility motivated laws banning interracial marriage, it rules out this explanation of traditional marriage laws. Yes, homosexual acts were widely condemned for centuries here in the West, and still are by many people and religious traditions. But so were those same acts between a husband and wife, such as sodomy. The basics of marriage law allowed consummation by no other act than intercourse, even between a wedded man and woman. Some cultures, as in ancient Greece and Rome, recognized only opposite-sex unions as marriages even when they celebrated homo-eroticism. Only ignorance of all these facts could support an idea that anti-gay hostility shaped our marriage law and that of every other culture as well.
The analogy to interracial marriages would also mean that any kind of distinction is discrimination. If so, we would be compelled to recognize those seeking open, temporary or polyamorous marriages. It cannot be argued that these folks can be free to enter those relationships but not have legal recognition without acting like hypocrites themselves. If, like most conjugal and revisionist supporters agree, these kinds of unions should not be recognized as marriages, then you have to accept three principles. First, marriage is not totally malleable–it is not “just a contract.” Second, the state is within its rights to recognize only true marriages. Laws that distinguish marriage from other bonds will always leave some arrangements out. Third, there is no general right to marry the person you love, if this means a right to have any kind of relationship recognized as marriage. There is only a general right not to be prevented from forming a true marriage. There is no direct line from the principle of equality to same-sex civil marriage. This series will be concluded in part eight.