Matt Zeitlin: Impetuous Young Whippersnapper

Robert George is a very smart and accomplished man. He makes his arguments honestly and rigorously. So, when he goes to the Wall Street Journal to make an argument against gay marriage, it’s probably a good idea for gay rights defenders to perk up their collective ears. But what’s interesting about his pretty simple natural law argument for why gay marriage is a bad idea is how, well, silly it is. This isn’t really his fault. Natural law is a silly concept, and it’s often times just a cudgel used by conservatives to deny the rights claims of minorities. But anyway, here’s George:

Opponents of racist laws in Loving did not question the idea, deeply embodied in our law and its shaping philosophical tradition, of marriage as a union that takes its distinctive character from being founded, unlike other friendships, on bodily unity of the kind that sometimes generates new life. This unity is why marriage, in our legal tradition, is consummated only by acts that are generative in kind. Such acts unite husband and wife at the most fundamental level and thus legally consummate marriage whether or not they are generative in effect, and even when conception is not sought.

What makes George’s natural law argument better than most is that he points out how our current legal understanding of marriage is premised on some sort of possibly procreative sexual union between the two opposite-sex people. But this only gets you so far. All he’s established is that the institution of marriage, at least formally, embeds some assumptions about the gender and behavior of the couples. What George can’t prove is whether this set up currently meaningful or if it’s in accordance with our ideas of justice

Historians and social scientists who actually study the empirical reality of what marriage is today don’t agree with George. Justin Wolfers and Betsey Stevenson, for example, characterize modern marriage as “hedonic marriage” where people meet and institutionalize their relationship because they want to share “consumption complementarities — activities that are not only enjoyable, but are more enjoyable when shared with a spouse.” Now, the language and formal  institution of marriage may not have caught up with the changes we’ve seen since, say, the 1960s, but those changes are real, and if George wants to make an argument for excluding gays for marriage based on what marriage is, he should actually cite how marriage has changed over the years and where it is today. The work of Stephanie Coontz is useful here as well. So, when George frets about what happens “If marriage is redefined, its connection to organic bodily union—and thus to procreation—will be undermined,” he’s really fighting a lost cause. Marriage has been redefined, and it’s been redefined in a way that makes excluding gays illogical.

But George seems to be aware of some of these problems and so writes “But as a comprehensive sharing of life—an emotional and biological union—marriage has value in itself and not merely as a means to procreation.” [emphasis added]. If there is a great benefit to those who enter into marriage from doing so, if “a comprehensive sharing of life” is indeed a good thing, than the burden would fall on George to show why someone’s sexuality is a reason why the state should not recognize and confer equal benefits to gays and lesbians.

But aside from any flaws in George’s description of how marriage actually works in today’s society, there is the sheer lack of recognition of how gays are disadvantaged because of their sexuality by not allowing them to marry. As Jon Chait pointed out, conservative arguments about social policy tend to absolutely ignore the welfare of gay citizens, and instead make tendentious or speculative arguments about why affording them equal rights willhurt everyone or will irrevocably damage our institutions.

This seems like the insurmountable challenge for opponents of gay marriage. The institution has already changed into one that is no longer based around procreation. Also, we are approaching a societal consensus that discriminating against gay people just because of they’re sexuality is bigoted and wrong. Lots of gay people want to get married and abide by the standards, rules, regulations and expectations of married people. So, it’s going to take a lot more than a legalistic, nostalgic definition of marriage combined with a slippery slope argument about polyamory to deny a strong claim from fairness and equality about why a group of people should enjoy some rather basic rights .