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Bench Memos

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Will Real Marriage Please Stand Up?



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Yesterday and today on the homepage, NRO has republished two pieces originally appearing in recent issues of the print magazine: Jason Lee Steorts’s “Two Views of Marriage” and Sherif Girgis’s reply “Real Marriage.”  Readers who have seen me blog in praise of Girgis’s recent article “What Is Marriage?” (co-authored by Robert P. George and Ryan T. Anderson) will not be surprised to learn that I am squarely on his side in this exchange with Steorts.  But I commend both articles to you, as serious attempts to grapple with a really important issue that courts are confronting more and more.

Steorts would separate marriage altogether from procreation, and predicate the institution somehow on the pursuit of “maximal experiential union” between two persons.  I think that Girgis ably identifies the problems with this reinvention of marriage.  I just want to stress here how much it really is that–a reinvention.  Steorts says at one point that, in his view, “even if human beings rose up fully formed out of lotus flowers, they would, if they felt romantic attraction and sexual desire, form maximal experiential unions and want the state to protect them.”  This is an attempt, I think, to deal with the common argument of conjugal marriage’s defenders that, if men and women didn’t have babies as a regular result of sexual activity, there wouldn’t be any such thing as marriage.  To his credit, Steorts appears to know the force of this argument–hence he denies it.  In his view, even if human beings reproduced asexually, they might still feel “romantic attraction and sexual desire” and therefore want to get married.  Somehow this reminds me of the old quip, “if Grandma had wheels, she’d be a trolley car.”  That is, she wouldn’t be Grandma.  If human beings reproduced asexually, well, they wouldn’t be human beings.  But let’s go with it for a moment.  What reason could we have, even in this utterly fantastic hypothetical, to suppose that beings who reproduce asexually would feel “sexual desire” of any kind?  And if sexual desire is the ground of, or inseparable from, “romantic attraction”–which is in turn the foundation of some yearning for “maximal experiential union”–then where would we turn to find such things in this asexual universe?  And would there be any reason for marriage, once we (predictably) fail to find them?

But precisely on this ground, Steorts then turns to propose that we “now write our positive marriage law on a tabula rasa.“  These are startling words to read in the flagship magazine of American conservatism.  Conservatives are generally loath to treat any vital question as open to being addressed in tabula rasa terms.  The slate is not blank; nature and history have done their work from time immemorial.  Tabulae rasae are what judges, unfortunately, think they see (or convince themselves they are seeing, or pretend to see) when they are intent on remaking society with the blunt tools of constitutional jurisprudence.  We should instead seek an understanding of what nature and history–not abstractions about yearning for “maximal experiential unions”–have to teach us about marriage.  This, I think, Sherif Girgis is attempting, and with considerable success.



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