Saga of the Jasonite

The continuing adventures of that eternal man of mystery…


What is Marriage? Part Eight, A Cruel Bargain?



This is part 8 of 8 of my series on marriage, based on Girgis’ What is Marriage? Marriage is a comprehensive union. The state has excellent reasons to recognize it, and excellent reasons to enact the correct view of it. These reasons are rooted not in some obscure ideology or private interest, but variously and deeply in human nature and the common good of all society, which reason and experience reveal. These have been the themes of this series.

Many same-sex attracted men and women agree with this conclusion. Some do so because they object to casting same-sex unions in a mold designed for husbands and wives, but others cite reasons identical to or much like ones that have been offered in this series. Here is a link to one such, here is another and here is a third. You might fear that whatever gains the conjugal view wins for the many, it wins at a cruel cost for the few. This objection states that traditional marriage law harms the personal fulfillment, the practical interests, and the social standing of same-sex-attracted people.

Practical interests:  a civil union or other policy that granted legal benefits to any two adults upon request would receive no objection from the conjugal marriage view. People can normally obtain these benefits privately, for example, through power of attorney. Personal fulfillment and social standing:  please note that however the marriage debate is resolved, two men or two women will be free to live together, with or without a sexual relationship or a wedding ceremony. The same-sex civil marriage debate is not about anyone’s private behavior, but about legal recognition. The decision to honor conjugal marriage bans nothing. But neither does it discourage companionship. Not recognizing certain relationships as civil marriages will not make people lonelier unless we embrace the revisionist idea that emotional intimacy is what sets marriage apart–which is not true. A relationship may be of the greatest worth without calling for state recognition–especially if recognizing it would have harmful side effects. People rightly take delight in the public knowledge of their bonds in all kinds of relationships. Yet no one proposes to make friendships, for example recognized by law. Legal recognition only makes sense when something needs regulation, and can only regulate relationships with a definite structure. As has been shown, the only romantic bond that meets this criterion is marriage–conjugal marriage.

Please do not mistakenly assume that the conjugal view is concerned with targeting same-sex relationships. It is the redefinition of marriage that is concerning. What I wish to avoid is the harm this does to the common good. In the first and last analysis, what I have debated–and what I have defended–is marriage. There is no such thing as a neutral marriage policy. Marriage understood as the conjugal union of husband and wife really serves the good of children, the good of spouses, and the common good of society.

There is one final point to make, addressing full disclosure and transparency. Here I do not speak for Girgis, Anderson, George or anyone else. The reason I have spent the large amount of time and work I have on this series of blog entries is to explicate in as clear and detailed and cogent a fashion as I can the reasons I do not support any form of marriage other than the conjugal view. Their paper which turned into an essay, or whatever you want to call it, is the best way I’ve yet found to express it, however it is not complete. Of necessity they (and I) have only thus far considered implications through a secular lens. However, as those who have followed my blog for any length of time must know, I am also a spiritual and religious person. I want it clear that the genesis and root of my belief in conjugal marriage is that marriage is not the product of the human mind. It is not something that two people, or a community or a nation simply “came up with” somewhere back in the misty dawn of human civilization. Rather it was given by God himself, first to Adam and Eve, and subsequently to the whole human race.

As God has given this gift of marriage, and indeed His first commandment to Adam and Eve was to “multiply and replenish the Earth,” He is the only one who can set the terms of what marriage is. No other being has that right. In my view, the many great goods that marriage brings to pass only do so because they are following the order that God has given. To deviate from it is to at best dilute these goods, and at worst to pervert them to the degradation and degeneracy of civilization. Marriage is what it is, and man does not have the power to alter it or legislate to modify it, any more than he can alter any of the other laws of the universe. As has been said by others, “He designated the purposes of marriage to go far beyond the personal satisfaction and fulfillment of adults to, more importantly, advancing the ideal setting for children to be born, reared, and nurtured.” It is not my intention to give offense to any, simply to be as clear as I can in presenting my view.

                                                                 Part Seven


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What is Marriage? Part Seven, Justice and Equality



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.

                      Part Six                                                                               Part Eight

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What is Marriage? Part Six, Threatening Moral and Religious Freedom

Changes in marriage norms causes harm

Changes in marriage norms causes harm

The harms of redefining civil marriage would extend beyond the couple and their children, to anyone who holds the conjugal view. Americans are not particularly patient with those we think are enemies of equality. People who have attitudes that remind us of Jim Crow, Chinese exclusion laws, Japanese internment camps, or forbidding women the vote are today’s exiles, barred from the public square and even respectable jobs. The revisionist view depends on the idea that there are no important differences between same- and opposite-sex relationships. By endorsing it, the state would imply that the conjugal view makes arbitrary distinctions, and conjugal marriage supporters would become champions of discrimination.

Photographers, caterers, innkeepers, adoption agency officials, parochial school administrators, counselors, foster-care and adoption providers, and others will be forced to comply with the revisionist view or lose their jobs. This is not fear-mongering, this is taking revisionists at their word. If support for conjugal marriage really is like racism, we need only ask how civil society treats racists. In Canada a prominent sportscaster was fired from his job for expression on Twitter of his support for conjugal marriage; a Georgia counselor contracted by the CDC was fired after an investigation into her religiously motivated decision to refer someone in a same-sex relationship to another counselor (that one in particular burns me up, as I am a counselor); a ministry in New Jersey lost its tax-exempt status for denying a lesbian couple use of its facility for a same-sex wedding; and a photographer was prosecuted by the New Mexico Human Rights Commission or declining to photograph a same-sex commitment ceremony.

Conflicts with religious liberty are inevitable when marriage is extended to same-sex couples. In Massachusetts, Catholic Charities was forced to give up its adoption services rather than violate its principles by placing children with same-sex cohabitants. When public school began teaching students about same-sex marriages because it was now law, the court found that parents did not have the right to exempt their students. In fact the Becket Fund for Religious Liberty reports that “over 350 separate state anti-discrimination provisions would likely be triggered by recognition of same-sex marriage.” Because of the mutual influence of law and culture, emerging legal trends are mirrored by social ones. A Washington Post story drew cries of journalistic bias for implying that one conjugal view advocate was “sane and thoughtful,” and in fact compared the profile to a piece about a KKK member! A New York Times columnist has called conjugal marriage proponents bigots. Now organizations pushing the legal redefinition of marriage label themselves as “champions of human rights” and opponents of “hate.” And all this has occurred before any nation-wide or state majority legalization for same-sex marriage!

How about undermining friendship? The social prevalence of the revisionist view would make things harder on single people:  as marriage is defined simply as the most valuable or only kind of deep communion, it becomes harder to find emotional and spiritual intimacy in nonmarital friendships. Revisionists cannot define marriage in terms of real bodily union or family life, so they tend to define it instead by its degree or intensity. Marriage is simply your closest relationship, offering the most of the one basic currency of intimacy:  shared emotion and experience. The more we absorb this assumption, the less we value deep friendship in its own right. Self-disclosure, unembarrassed reliance, self-forgetfulness, extravagant expressions of affection and other features of companionship come to seem like unwelcome impositions outside romance and marriage. Here is an article explaining it more fully, it is a deeply thought-out treatise.

It’s been made clear that redefining civil marriage would affect how we conduct our sexual relationships, how we parent, how we treat conscientious dissent, and how we deal with friends. However there is a common “conservative” objection to part of this. Some say that adopting the revisionist view would actually strengthen it, by imposing traditional marital norms–conservative values–on more relationships. Note that it doesn’t show the revisionist view of marriage to be true or the conjugal view false. Untouched are our claims that fathers matter as well as mothers. Nor does it dispel concerns about moral and religious freedom, or the diminution of friendship. If marriage is understood as an essentially emotional union then marital norms, especially permanence and exclusivity, will make less sense. Rather than imposing traditional norms on same-sex relationships, abolishing the conjugal view would tend to erode the basis for those norms in any relationship.

Examples are easy to find. In their statement “Beyond Same-Sex Marriage,” more than 300 scholars and advocates call for legally recognize sexual relationship involving more than two partners. A University of Calgary professor thinks justice requires us to use legal recognition to “denormalize heterosexual monogamy as a way of life.” What about the connection to family life? Andrew Sullivan, who is a conservative proponent of same-sex marriage says that marriage has become “primarily a way in which two adults affirm their emotional commitment to one another.” EJ Graff celebrates that recognizing same-sex unions would change the ‘institution’s message’ so it would “ever after stand for sexual choice, for cutting the link between sex and diapers.”

For those who want more proof, here is a great example: In the 1980’s Professors David McWhirter and Andrew Mattison, themselves in a romantic relationship, set out to disprove popular beliefs about gay partners’ inability to stay monogamous. Of the 156 men they surveyed, whose relationships had lasted from 1 – 37 years, more than 60% had begun the relationship expecting exclusivity, but not one couple stayed sexually exclusive longer than five years. They concluded “the expectation for outside sexual activity was the rule for male couples and the exception for heterosexuals.” Far from disproving popular beliefs, they confirmed them. The NY Times reported on a more recent study that stated, “‘with straight people, it’s called affairs or cheating,’ said Colleen Hoff, the study’s principal investigator, ‘but with gay people it does not have such negative connotations.'” To contrast, 99% of of opposite-sex couples expect sexual exclusivity in their marriage according to a Journal of Sex Research article in 2009, and violations of it are so serious they are “the leading cause of divorce across 160 cultures and are one of the most frequent reasons that couples seek marital therapy.”

It’s important to avoid stereotypes, which exaggerate infidelity unfairly, however I will summarize three studies that address this issue. A 1990’s UK survey of more than 5000 men found that the average numbers of partners over the previous five years for men with exclusively heterosexual inclinations was two, with bisexual inclinations was seven, and with exclusively homosexual inclinations was 10. A US survey found the average number of sexual partners since age 18 for men who identified as homosexual or bisexual was over 2.5 times as many as the average for heterosexual men. Finally, a study of same-sex civil marriages in Norway and Sweden found that “divorce risks are higher in same-sex partnerships than opposite-sex marriage and…unions of lesbians are considerably less stable, or more dynamic, than unions of gay men.”

So this “conservative” objection does not seem to bear out in reality, even in countries where these unions are uniformly legally recognized. There is no reason to believe, and abundant reason to doubt, that redefining civil marriage would make people more likely to abide by its norms. If anything it would undermine people’s grasp of the basis for those norms.

                       Part Five                                                                         Part Seven

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What is Marriage? Part Five, What’s the Harm?

Changes in marriage norms causes harm

Changes in marriage norms causes harm

So, then, what is the harm? To pick up right where we left off, as a revisionist might put it, “how would gay civil marriage affect your lives, liberties, or opportunities, or your own marriages?” Remember that from the beginning I have said that this debate is not about homosexuality, but about marriage. I’ll show later how the conjugal view respects same-sex-attracted people’s equal dignity and basic needs. In this article it will be shown how the revisionist proposal would harm marriage and much else also. Our argument depends on three simple ideas:  law tends to shape beliefs; beliefs shape behavior; beliefs and behavior affect human interests and human well-being. If all can agree on these truths, then, it will be shown that an unsound law of marriage will breed mistaken ideas that will harm not just marriage but parenting, common moral and religious beliefs, and even friendship.

To begin, let’s discuss the harm to marriage and parenting. Remember the law affects our ideas of what is reasonable and appropriate. You might think more of marijuana use if it were allowed, state subsidies of heavy metal music promote a different view of musical merit than chamber music, and a school board curriculum of quack science and chauvinistic history impart a different message about knowledge than one with more rigorous standards. Revisionists are on board with all of these ideas. In fact they find civil unions insufficient even when these offer same-sex unions all the legal benefits of marriage. Redefining marriage though, would change its meaning for everyone. Legally wedded opposite-sex unions would increasingly be defined by what they had in common with same-sex relationships. Marriage, the human good, would be harder to achieve; one can realize marriage only by choosing it, for which you need at least a rough idea of what it really is!

Obscuring the good of marriage to make it harder to live out is the first harm of redefinition:  other harms are the effects of misunderstanding, and failing to live out, true marriage. By warping people’s view of marriage, revisionist policy would make them less able to realize this basic way of thriving–much as a man confused about friendship will have trouble being a friend. As more people absorb the new law’s lesson that marriage is fundamentally about emotions, marriages will increasingly take on emotion’s instability. Since there is no reason that emotional unions should be permanent or limited to two, these norms of marriage would make less sense. It might seem far-fetched to predict that values as cherished as permanence and exclusivity would wane, however even leading revisionists now agree that if sexual complementarity is optional, so are permanence and exclusivity. If marriage is primarily about emotional union, why privilege two-person unions, or permanently committed ones? Also, because children fare best when reared by their wedded biological parents, the same erosion of marital norms would adversely affect children’s health, education and general formation. Additionally the size of the state would balloon, adjudicating breakup and custody issues, meeting the needs of spouses and children affected by divorce, and attempting to contain and feebly correct the challenges these children face. Marriage policy could go bad, and already has in some ways, especially by the introduction of no-fault divorce laws which make marriage contracts easier to break than contracts of any other kind.

Conjugal marriage laws reinforce the idea that the union of husband and wife is the most appropriate environment for rearing children. Recognizing same-sex relationships as marriages would legally abolish that ideal. No civil institution would reinforce the notion that men and women typically have different strengths as parents, or that boys and girls tend to benefit from fathers and mothers in different ways. Revisionist marriage laws would diminish the social pressures and incentives for husbands to remain with their wives and children, or for men and women having children to marry first. Yet the resulting arrangements–parenting by divorced or single parents, or cohabiting couples–are proven to be worse for children, as has been shown in the previous two articles. And mothers and fathers do both bring necessary strengths to the table for children. There is a preponderance of evidence for example, showing that girls are likelier to suffer sexual abuse and to have children as teenagers and out of wedlock if they do not grow up with their father. For their part, boys reared without their father tend to have much higher rates of aggression, delinquency, and incarceration. Rutgers University sociologist David Popenoe states, “we should disavow the notion that mommies can make good daddies, just as we should disavow the popular notion…that daddies can make good mommies… The two sexes are different to the core and each is necessary–culturally and biologically–for the optimal development of a human being.” A University of Virginia sociologist found much the same:  “…the best psychological, sociological and biological research to date now suggests that–on average–men and women bring different gifts to the parenting enterprise, that children benefit from having parents with distinct parenting styles, and that family breakdown poses a serious threat to children and to the societies in which they live.”

There is lots of research out there and not much of it is top-notch. Top-notch research contains large, random and representative samples observed over time (longitudinal). Not one study of same-sex parenting meets this standard of research. By contrast, a 2012 study was completed that was based on a large, random and nationally representative sample regarding outcomes in adulthood of various family structures. Compared to children of parents at least one of whom had had a gay or lesbian relationship, those reared by their married biological parents were found to have fared better on dozens of indicators, and worse on none. Penn State’s professor Paul Amato said the study’s methodological advantages still make it “probably the best that we can hope for, at least in the near future.” Ultimately, we have two reasons to expect that same-sex parenting is generally less effective:  first, every alternative to married biological parenting that has been examined in high-quality studies has consistently been shown less effective, and second, reliable studies suggest that mothers and fathers foster–and their absences impede–child development in different ways. Princeton and Wisconsin sociologists found, based on four longitudinal studies of nationally representative samples including 20,000 subjects, “Children who grow up in a household with only one biological parent are worse off, on average, than children who grow up in a household with both of their biological parents…regardless of whether the resident parent remarries.” This reinforces the idea that the state’s primary interest in upholding marital norms is to keep biological parents together.

In short:  redefining marriage might make it more socially acceptable for fathers to leave their families, for unmarried parents to put off firmer public commitment, or for children to be created for a household without a mother or father. But whatever the cause, there will be a cost to depriving children of the love and knowledge of their married mother and father. Please understand, none of these points implies that men and women in same-sex relationships have weaker devotion, or less capacity for affection. It is no insult to heroic single parents to point to data showing that mother and father together is more effective. What are compared in all cases are the outcomes of various parenting combinations, not individual parents. The next article will cover the consequences to moral and religious beliefs, and friendship.

                      Part Four                                                                       Part Six

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

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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What is Marriage? Part Three, Marriage Has Public Value

Marriage and the State

Marriage and the State

This and the following article will focus more on marriage and its relationship with the state. The conjugal view better describes what distinguishes marriage from other human goods, something that the revisionist view is helpless to do. Like friendship, marriage is a bond, but marriage is a bond of a special kind. We’ve discussed some of these differences in the previous two blog entries. Spouses vow their whole selves for their whole lives. This comprehensiveness puts the value of marriage in a class apart from the value of other relationships. Some say that marriage has no public value, and call for the state to get out of the marriage business altogether. Others say that 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. This article will deal primarily with the first fallacy, and the next article will deal with the second.

To the point that supposedly “marriage has no public value.” To recap a bit, the law does not set terms for friendships or allow us to sue over their neglect, and there are no civil ceremonies to forming friendships or legal obstacles to ending them. Why is marriage different? Because friendship does not affect the common good in ways that warrant legal recognition; marriage does. This is really the only way to account for the fact that virtually all cultures in the history of the world have regulated male-female sexual relationships. Only these relationships produce new human beings. Children need a long and delicate process of ongoing care and supervision, one to which men and women typically bring different strengths, and for which they are better suited the more closely related they are to their children. Unless children mature they will never become healthy, upright, productive members of society. The fact is, the state of our entire civilization depends on healthy, upright, productive citizens. As Maggie Gallagher puts it, “The critical public or ‘civil’ task of marriage is to regulate sexual relationships between men and women in order to reduce the likelihood that children will face the burdens of fatherlessness, and increase the likelihood that there will be a next generation that will be raised by their mothers and fathers in one family, where both parents are committed to each other and to their children.” This is not just a conservative viewpoint either. David Blankenhorn, a liberal Democrat says that anthropologists and other experts all report a cluster of related facts:  “Humans are social; they live in groups. They strongly seek to reproduce themselves. They are sexually embodied. They carry out sexual (not asexual) reproduction. And they have devised an institution to bridge the sexual divide, facilitate group living, and carry out reproduction. All human societies have this institution. They call it ‘marriage.'”

Marriage is costly and fragile, however, so people tend to require social pressures to get and stay married, namely a strong marriage culture. The late eminent sociologist James Q. Wilson wrote, “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children, does not solve.” The universal social need presented by relationships that can produce children explains why every society in history has recognized marriage. The state shouldn’t have the primary responsibility for this, it falls upon churches, synagogues, mosques, etc; but the state should lend a supporting hand. Marriage law sends a strong public message about what it takes to make a marriage–what marriage is. This affects people’s beliefs, and therefore their expectations and choices, about their own marriages. The mutual influence of law and culture has been confirmed by the evidence from the effects of no-fault divorce laws. A no-fault divorce is a divorce in which the breaking up of a marriage does not require a showing of wrongdoing by either party. Every state has some version of it and in my view it’s one of the worst marriage laws ever passed. Douglas Allen and Maggie Gallagher did a review of all research since 1995 on no-fault divorce laws to see if they affected the divorce rate. They found that no-fault divorce did increase the divorce rate by at least 10% (one estimate has it at an 88% increase), but this wasn’t the only effect: as a result of the law, more couples have either delayed marriage or chose not to marry at all, and no-fault divorce has likely resulted in a permanent increase in divorce risk. The state’s influence on marriage is extensive.

Abolishing civil marriage is practically impossible anyway. Even if the word “marriage” was stricken from law the state will still license, and attach dues and benefits to, certain bonds. Abolish these forms of regulation and they will only be replaced by messier, retroactive regulation:  disputes over property, custody, visitation and child support. So the state can only decide if it will discharge these tasks either more or less efficiently, it can’t escape them. This is because the public functions of marriage–both to require and to empower parents (especially fathers) to care for their children and each other–require society-wide coordination. It’s inescapable. No private organization can regulate this, because they can bind only their own. Remember, a major function of marriage is to bind all third parties (schools, adoption agencies, summer camps, hospitals, friends, relatives, strangers, etc) to treat a man as father of his wife’s children, husbands and wives to certain privileges, sexually off-limits, etc. Only the state can regulate this with any consistency. In fact it’s best if the state does, which is proven by a simple example:  why don’t even extreme libertarians object to traffic laws? Because of the great trouble traffic laws prevent, and their universal acknowledgement is key to their being obeyed. This is a good comparison with civil marriage laws. Marriage is not just about private problems and rewards; at stake are rights, and costs and benefits for all society. Here is a link briefly summarizing the large amount of research documenting the benefits of marriage. Marriage benefits children, benefits spouses, helps create wealth, helps the poor especially, and checks state power. Let’s take a closer look at each of these.

First, marriage benefits children. The best available social science suggests that children tend to do best when reared by their married mother and father. Studies that control for other factors, including poverty and even genetics, suggest that children reared in intact homes do best in all of the following:  educational achievement, emotional health, familial and sexual development, and their overall behavior as a child and an adult (this includes rates of aggression, attention deficit disorder, delinquency and incarceration). According to a left-leaning institution, Child Trends, “Research clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage… It is not simply the presence of two parents…but that presence of two biological parents that seems to support children’s development.” According to another study in the Journal of Marriage and Family, “the advantage of marriage appears to exist primarily when the child is the biological offspring of both parents.” Recent literature reviews by the Brookings Institution, Princeton University, the Center for Law and Social Policy and the Institute for American Values all corroborate these findings. Single-motherhood, cohabitation (“living together”), joint custody after divorce, and step-parenting have all been reliably studied, and the result is clear:  children tend to fare worse under every one of these alternatives to married biological parenting. As I have noted in another post, the most recent well-constructed research of which I’m aware include same-sex couples as a deficient alternative as well. Note the link between marriage and children:  just as it provides a powerful reason to hold the conjugal view of marriage, it also provides the central reason to make marriage a matter of public concern. Virtually every Supreme Court case recognizing as fundamental the right to marry indicates as the basis for the conclusion “the first purpose of matrimony, by the laws of nature and society, is procreation.” In fact, “marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race.” Yes, marriage benefits children.

Second, marriage tends to help spouses financially, emotionally, physically and socially. It’s not that people who are better off tend to marry, but that marriage makes people better off. Thus men, after their wedding, tend to spend more time at work, less time at bars, more time at religious gatherings, less time in jail, and more time with family according to the late U of Virginia sociologist Steven Nock. More than signal maturity, marriage can promote it. Permanently committed to the marriage relationship, husbands and wives gain emotional insurance against life’s temporary setbacks. They leave the sexual marketplace and escape its heightened risks. They enjoy the benefits of a sharpened sense of purpose, dedicated to their children and each other. Working more robustly, they reap more abundantly these fruits as well.

Third, the fact the marriage benefits children and spouses supports a study by Professor Wilcox at U of Virginia who concluded, “The core message…is that the wealth of nations depends in no small part of the health of the family.”  This study suggests that marriage and fertility trends “play an underappreciated and important role in fostering long-term economic growth, the viability of the welfare state, the size and quality of the workforce, and the health of large sectors of the modern economy.” If anything interests the state, surely these things must; so too then, does marriage.

Fourth, given its economic benefits it is no surprise that the decline of marriage most hurts the least well-off. Kay Hymowitz argues in her book Marriage and Caste in America that the decline of marriage culture has hurt lower-income communities and African-Americans the most. It seems a leading factor of whether someone will know poverty or prosperity is whether she knew the love and security of her married mother and father growing up.

Finally, since a strong marriage culture is good for all these things, it also serves the cause of limited government. Where marriages break down or never form, the state expands due to lawsuits to determine paternity, visitation rights, child support and alimony. As absentee fathers and out-of-wedlock births become common, a train of social pathologies follows, and with it greater demand for policing and state-provided social services as well. Two sociologists studied marriage culture in the Scandinavian countries and showed that the further marriage culture declined, the more the size and scope of state power and spending grew. A study by the left-leaning Brookings Institution found $229 billion in welfare money from 1970 – 1996 that can be directly attributed to the breakdown of the marriage culture and the resulting increase in teen pregnancy, poverty, crime, drug abuse and health problems. A 2008 study found that divorce and unwed childbearing cost taxpayers $112 billion each year!

In spite of those that say marriage has no public value and the state should get out of the business of regulating marriage at all, privatizing marriage would be a catastrophe. Almost every human interest that might justify state action, such as health, security, educational development,  and social order would also justify legally regulating marriage. So much for that argument.

                   Part Two                                                                                  Part Four

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What is Marriage? Part Two, Comprehensive Union

Marriage Marriage requires a comprehensive union

This is the second of an eight-part series on marriage, summarizing Girgis, Anderson and George from their book What is Marriage? Which I agree with on all the essentials.

So what then, is marriage? I can’t encapsulate any better than Girgis and company:  “Marriage is a comprehensive union of persons.” Let’s talk about what this means. It consists of three basic features:  unifying activity, unifying goods, and unifying commitment.  Put another way, first it unites two people in their minds and bodies, second it unites them with respect to procreation, family and it’s broad domestic sharing, and third it unites them permanently and exclusively. Let’s consider each of these in turn.

First, being united in mind and body. Any union of two people must include bodily union to be comprehensive. If it did not it would leave out a basic part of each person’s being. A man and woman hypothetically building an exclusive relationship based on deep conversation have not married, for example–marriage requires more. Marriage requires exclusivity with respect to sex. Why is sex so irreplaceable as a component of marriage? Let’s use an analogy. Something about our organs–heart, stomach, lungs, etc–makes them one body, but what? It’s not that they’re just close together, a pile of rocks are close together but they’re not one mineral substance. It’s not their shared genetic code either, identical twins have essentially one code but not one body.

What makes for unity is common action, in other words activity toward common ends. They are part of a greater whole and work together, they act as one toward one end that encompasses all. The parts of a body are naturally incomplete when apart, naturally greater than their sum when together. For two individuals to unite organically, their bodies must coordinate toward a common biological end of the whole that they form together. In coitus, and there alone, a man and a woman’s bodies participate by virtue of their sexual complementarity in a coordination that has the biological purpose of reproduction–a function that neither can perform alone. Here the whole is the couple; the single biological good, their reproduction. This union occurs whether conception results or not; it is the coordination toward the end that makes the union.

Sex has long been called the generative act. If sex is a free and loving expression of the spouses’ commitment, then it is also a marital act. In other words, the marital act involves the most distinctively marital behavior chosen for distinctively marital reasons:  to make spousal love concrete, to unite as spouses do, to extend their union of hearts and minds onto the bodily plane. This is key, as two men, two women, and larger groups cannot achieve organic bodily union:  there is no bodily good or function toward which their bodes can coordinate. Only bodily coordination toward reproduction, then, gives rise to organic bodily union.

Second, comprehensive unifying goods:  procreation and domestic life. Marriage calls for the wide-ranging cooperation of a shared domestic life, for it is uniquely ordered to having and rearing children. The term “shared domestic life” means more than two freshman roommates figuring out how to live together over winter break. Spouses unite the whole of their selves, and the demands of marriage are shaped by those of parenting. So marriage requires coordination of the whole of the spouses’ lives, as well as some positive cooperation in the major dimensions of human development, which are the major dimensions of child development also.

However, just deciding to raise children is not enough to make you married. Three monks who commit to caring for an orphan do not thereby marry, nor is child-rearing necessary for being spouses. This is why our law for century after century has treated sex, not adoption or birth or conception, as the event that consummates a marriage, and has recognized the marriages of infertile couples. The idea is not that the relationship of marriage and the comprehensive good of rearing children always go together, it’s that like a ball and socket, they fit together. Family life specially enriches marriage, and marriage is especially apt for family life, which shapes it. To sum it up, marriage is ordered to family life because the act by which spouses make love also makes new life; one and the same act both seals a marriage and brings forth children.

Relationships of two men, two women, or more than two cannot be marriages because they lack this inherent link to procreation. This is why in the common-law tradition only sex has been recognized as consummating a marriage. Sex is coordination toward reproduction, regardless of the spouses’ beliefs about conception. Marriage unites spouses in mind and body, and is ordered to producing not just one or another human value but a whole new person, a new center of value. So it inherently calls for the broad sharing of life that would be needed for helping new human beings develop their capacities for pursuing every basic kind of value. As I will demonstrate in the next two articles, according to the best available sociological evidence children fare best overall when reared by their wedded biological parents. Not only does child rearing deepen and extend a marriage, children also benefit from marriage.

Third, comprehensive commitment:  permanence and exclusivity. Let’s review the preceding facts, namely marriage involves acts that unite spouses comprehensively, and it unites them in a comprehensive range of good. Because of both of these marriage alone requires comprehensive commitment, whatever the spouses’ preferences. For friendship you must be committed to his or her good and to the friendship itself. It need not be formal or very extensive. However a union of spouses in mind and body, ordered to having and rearing children in the context of life sharing, marriage both makes sense of permanent and exclusive commitment, and requires it to get off the ground.

The point is that while people in other bonds may wish for and live out permanent sexual exclusivity, only marriage objectively requires it if it is to be realized fully. The norms of marriage create the stability and harmony suitable for rearing children. Both sociology and common sense agree that such stability is undermined by divorce. The connection between marriage and children therefore reinforces the reasons spouses have to stay together and faithful for life. The revisionist view of marriage, in contrast, where bodily union and orientation to family life and broad domestic sharing are at best optional, means so are permanence and exclusivity. If marriage is, as the revisionist must believe, essentially an emotional union, then sexual exclusivity is hard to explain. After all, sex is just one of many activities that bring vulnerability and tenderness, and some partners may desire deeper and longer-lasting emotional union with each other if their relationship were sexually open. However the conjugal view distinguishes marriage by a certain type of cooperation, defined by certain common goals:  bodily union and its natural fulfillment in children and family life.

To summarize and repeat the main points of this article. Any definition of marriage must explain what makes the marital relationship different from others. Romantic love is not enough. First, true marriage unites persons in their bodies as well as their minds. Spouses unite bodily only by sex, which is ordered toward the good of bringing new human life into the world. Second, spouses cooperate in other areas of life in the broad domestic sharing uniquely suitable for fostering the all-around development of new human beings. Third, in view of marriage’s comprehensiveness, it inherently calls for comprehensive commitment:  permanence (until death) and exclusivity (monogamy). To reiterate, marriage involves a bodily as well as mental union of spouses, a special link to children and domestic life, and permanent and exclusive commitment. All three elements constitute the conjugal view.

                      Part One                                                                               Part Three