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Bench Memos

NRO’s home for judicial news and analysis.

“What Is Marriage?”



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This is the question that must be answered before the country decides–or the judges presume to decide for us–that the institution must be expanded to include same-sex couples.  In a brilliant and comprehensive new article (with this question as its title) in the Harvard Journal of Law and Public Policy, Sherif Girgis, Robert P. George, and Ryan T. Anderson present an eloquent, compelling answer to the question, show the grounding in nature itself for conjugal marriage, and rebut all the objections commonly made by advocates of same-sex unions.  Here’s a sample:

     Any legal system that distinguishes marriage from other, nonmarital forms of association, romantic or not, will justly exclude some kinds of union from recognition.  So before we can conclude that some marriage policy violates the Equal Protection Clause, or any other moral or constitutional principle, we have to determine what marriage actually is and why it should be recognized legally in the first place.  That will establish which criteria (like kinship status) are relevant, and which (like race) are irrelevant to a policy that aims to recognize real marriages.  So it will establish when, if ever, it is a marriage that is being denied legal recognition, and when it is something else that is being excluded. . . .

     Some revisionists say that marriage is merely a social and legal construct, but their appeals to equality undermine this claim  The principle of equality requires treating like cases alike.  So the judgment that same-sex and opposite-sex unions are alike with respect to marriage, and should therefore be treated alike by marriage law, presupposes one of two things: Either neither relationship is a real marriage . . ., perhaps because there is no such thing, marriage being just a legal fiction . . ., or both relationships are real marriages, whatever the law says about them.  The latter presupposition entails the belief, which most revisionists seem to share with advocates of the conjugal view, that marriage has a nature independent of legal conventions.  In this way, the crucial question–the only one that can settle this debate–remains for both sides: What is marriage?

This article is must reading for all those concerned with the course of public–and judicial–deliberation on the future of marriage in America.  Girgis, George, and Anderson write with a fluidity and grace that are rare in legal journals, too.  All federal judges, and especially all Supreme Court justices, should study the argument with care.  Get your copy here.



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