9. Nor can he explain why marriage should be permanent. He argues that the union of bodies (in his sense) is like the union of organs in a single organism, and that it should therefore last for the life of the parts. But the woman’s reproductive function is lost, and the man’s atrophies, well before death. Child-rearing also comes to its close. If an old couple stay together, it is only because they love each other.
10. By Girgis’s lights, why shouldn’t a man abandon his post-menopausal wife and form a fresh “comprehensive union” with a younger woman, assuming his first set of children are grown?
11. I am not attributing to Girgis the view that marriage is only of instrumental value and only insofar as it achieves procreation. I am saying his assertion that marriage is intrinsically valuable in cases where procreation is known to be an absolute impossibility is a dogmatic fist thump. There is a sense in which any claim about value, pushed far enough, must come to that, but the stopping point can be more or less plausible. My stopping point is being in love. Girgis dismisses this as a private bloom, differentiates the value of same-sex couples from that of the example ones based solely on the kind of sex the couples have, then sneaks the bloom back in for the mixed-sex couples only. Decide for yourself whose view is more plausible.
12. Girgis’s failure plausibly to ground the norms is a consequence of his failure plausibly to ground the intrinsic value of marriage.
13. Plutarch, the only one of Girgis’s ancient thinkers who to my knowledge mentions infertility, approvingly reports Solon’s law
that “the husband of an heiress shall consort with her thrice a month; for though there be no children, yet it is an honor and due affection which an husband ought to pay to a virtuous, chaste wife.” This tidbit diverges from Girgis’s position and approaches mine, for rather than insisting that such consortings are too
procreatively oriented, Solon/Plutarch forthrightly invokes as implying norms of conduct the “affection” Girgis dismisses as a private bloom
. I do not say Solon or Plutarch thought such affection possible between persons of the same sex, or that they thought affection sufficient to justify marriage: Solon, again with Plutarch’s approval, forbids the very old to marry the young and fertile, since they cannot reproduce together. Alas, I really do disagree with these ancients, but on what constitutes a reproductive unit they here seem closer to me than to Girgis.
14. None of the thinkers Girgis mentions had any understanding of the physiology of the man with azoospermia, or other kinds of natural sterility. They had no anticipation of medical treatments that render persons sterile or of technologies that allow fertile persons to have coital sex with little or no possibility of procreation. (Note in passing that Girgis’s position either falsely assumes the absence of artificial birth control, implausibly assumes the public can be persuaded to forswear it, or objectionably advises its prohibition.) They knew the elderly could not have children, but they would have assumed that for a long stage of life coital sex could not be had with no possibility of procreation, and that most married men and women had a high probability of producing offspring during that stage.
15. All of which is to say that Girgis’s ideology of the coital act holds up only when thoughts accompany it that today need not and sometimes cannot.
V. Civil Marriage
1. It would be one thing to deny recognition to the example couples; this would not involve recognizing some non-procreative maximal experiential unions but not others, and would be just.
2. Our law would also be just if the answer to “What reason have we to recognize and protect relationships?” were only “We wish to encourage the fostering of children by their biological parents.” The law would include the example couples by accident, and there would be no conceivable ground for same-sex couples to want inclusion. But both the same-sex and the example couples have good reason to want inclusion, and the inherently childless yet romantic nature of the two sets of relationships implies the same norms.
3. Legal protection of a relationship would by definition be of value to any who wanted it — threesomes, polygamists, practitioners of incest, whatever. But only a subcategory of these are (1) not wrong or imprudent for reasons specific to them and (2) pledged to monogamy, fidelity, and permanence and formed in expectation of them. And these are: maximal experiential unions.
4. When we distinguish “Do the norms of conduct we care about make sense for this couple?” from “Should we pressure this couple to follow the norms?” we see that the answer to the second is “yes” only for couples who are raising children. It is just this difference that the two-tiered system of marriage law I propose would acknowledge. Its effect would be to keep children in a home with their biological parents.
5. If what Girgis advocates seems as if it would better protect children, that is only because people fail to see how the nature of their relationships changes — from involving duties to each other to involving, as well, duties to third parties — once they procreate. Neither our pre–Sexual Revolution law and culture nor our contemporary ones well capture this reality; we have swung from treating all married couples as if they had children to largely ignoring the interests of children. My proposal, more precisely addressing the pre-legal reality, would offer clearer incentives and a more perfect justice. And it would do so without aiming at massive social transformation — an unconservative approach if ever there was one.
6. As for same-sex parenting, the relevant question is not whether it falls short of the traditional model, but whether it falls short of non-ideal cases we already permit (adoption, surrogacy, etc.). Even Girgis concedes the absence of methodologically rigorous research on this question. If the answer turns out to be horrible, we can, as I wrote, restrict same-sex parenting through laws governing fertility clinics and adoption agencies. There would be no need to forbid same-sex couples to marry, since their marriages are not procreative.
1. The basic question is whether people in same-sex relationships and people in mixed-sex ones can find the same kind of value in their different kinds of instance, once we abstract away — as Girgis’s definition of marriage does — from any actual orientation toward procreation.
2. To answer, look at the signs. It does not matter whether all or even most people in same-sex relationships show them, just as it does not matter whether all or most people in mixed-sex ones do. If some do, that is enough.