Politics & Policy

Two Views of Marriage: Appendix

A reply to Sherif Girgis.

“Why did you get married?” said Scrooge.

“Because I fell in love.”

“Because you fell in love!” growled Scrooge . . .

— Charles Dickens, A Christmas Carol

Most of what is wrong with Mr. Girgis’s reply to my article discloses itself when we consider a man who has testicular azoospermia, knows it, falls in love with a woman, and tells her that to a certainty they cannot have children. If these two want to marry, Girgis would marry them. His reason is that the sex they will have is oriented to procreation. But it is not. They will never have children, and their knowing this will make it impossible for them to see their union as procreatively oriented. Thus falls apart Girgis’s explanation of why they should follow the norms he and I care about: The reality of their relationship precisely does not call for life-sharing in order to foster children they know they will not have.

Why do they want to marry? Is it not because they are in love, have committed to spending their lives together, and want the law to protect their commitment when it comes to such things as property and health care? And are a same-sex couple not also able to make this commitment and deserve such protection?

Both the same-sex couple and the man with testicular azoospermia and his wife have reason to follow marital norms, which I presented and Girgis has ignored. Where there exist children to protect, I want our law to enforce the norms, by making it harder to divorce and by making unwed parents jointly responsible for their children’s welfare. I did not mention it, but I also advocate using the tax code to encourage people who are married and can do so to procreate, and who have procreated but not married to do so. All of this would underscore the serious implications of procreative-type sex (which means: sex that might lead to procreation — not, as Girgis has it, sex like this), and would do so more directly, hence more clearly, than marriage law of the kind traditionalists favor.

Girgis also has ignored this proposal, an omission that reduces his discussion of the sociology of parenting to irrelevance, though it does set him up to falsely claim that I present a brief in Partilla and Riddell’s defense. His implausible view of sex, according to which it is only about the getting of pleasure if not had like this, and his belief that wanting to spend your life with someone can mean nothing other than wanting to spend every waking second with that person, are not true to human experience. And he really is the dualist, because he is making judgments of value based on generalizations about bodies rather than generalizations about being a person — that is, existing in the first person with one’s body and mind united.

To answer Girgis’s several objections, I make the following “oracular pronouncements.”

I. Persons

1. You have a certain point of view; you perceive the world and act upon it from a perspective that is different from mine or anyone else’s.

2. You cannot escape this perspective. You cannot see the world through my eyes or through no one’s eyes, but must see it through your own, and hear it through your ears, and act upon it with your limbs, and so on.

3. What would it even mean to think that your mind inhabits your body as a “vehicle” or “extrinsic instrument”? This makes sense only if you can form some idea of your mind’s not inhabiting your body, of the two existing separate like snapped-apart Lego pieces — and that is just how you cannot think of yourself.

4. Don’t say, “Existing as just a mind would be like dreaming.” When you dream you still have a body.

5. Your mind is not just thoughts, feelings, perceptions, and so on, but their continuity and unification as a point of view. It is your perspective without being any particular part of your perspective.

6. That you have this perspective through your body, that you look out through your eyes and perceive and act upon the world through your brain, is the unity of your mind and your body.

7. You cannot show your thoughts, feelings, perceptions, will, and so on to others, and you cannot show them to yourself; they are not things that can be shown. All the same you have them. And you have them.

8. What can be shown is the world as you perceive and think about and act upon it, and this includes your body and others’, the sounds you and they make as speech, the marks you and they make as writing, and so on, as well as the posited causal history leading up to all this.

9. Through things that can be shown you recognize other minds.

10. Recognize, for it is not an inference. You do not think, “There is a body like mine, moving much as mine does, etc., and so there is also a mind like mine.” At once, you see the body as coming with a mind and a unique perspective that cannot be shown — much as at once you see the configuration of ink on the page as writing.

11. You form some idea of what a person is thinking, feeling, and so on through things that can be shown — his testimony, his actions, his circumstances. You see someone shiver in the snow and understand that he is cold. I call this the “empathetic extension” of your point of view, because it is possible only inasmuch as you can form some idea of yourself shivering in the snow and giving public signs of it similar to his. But again, it is not an inference. And again, there is not this thing being cold to observe and categorize as if sorting Lego pieces by color. Yet any one of us could certainly be cold and show it.

II. Value

1. Saying that something has value is different from saying what it is. It is to say, “It would be worth it to will this kind of what.”

2. You need not have willed something or be able to will it in order to recognize its value. That you have certain attributes and abilities, that you have air to breathe, that you exist at all — you find value in these things inasmuch as you would will them.

3. You have only your own will and your own valuations, just as you have only your own thoughts, feelings, and perceptions.

4. You see that others find value when the signs they show of finding it prompt the empathetic extension of your point of view and recognition of value as they find it.

5. When they will the same kind of thing you do, this itself is the sign. I value chocolate ice cream, and I see by your eating it that so do you.

6. It happens that people find the same kind of value in different kinds of thing — he likes chocolate ice cream, she likes vanilla. The things can differ markedly — the value of a canal to a Venetian is the value of a road to a New Yorker. In such cases the signs of value are similarities between the kinds of circumstance in which the different kinds of thing are willed — eating dessert after dinner; driving a car or taking a gondola to the store.

7. For different kinds of thing to offer the same kind of value means only that they stand in similar relations to those who find their value, not that they are identical or that one of them cannot be superior to the other in any respect — cars are faster than gondolas, but both are transportation.

8. Value is given, not chosen or deduced. It is not up to you whether and where you find it (though what you do from there is up to you).

9. You find value rather than decide on the basis of criteria to find it, for you must already find value in the criteria for them to be such. For example, you must already find that being cold in the snow is no good in order to accept “It’s warm inside” as a reason to go in.

10. There is reasoning about value, but it never gets beyond presenting some sort of what and its connections with other whats (including other persons and whatever whats of theirs you can form some empathetic idea of). From there you just trust that value will be found as you find it yourself.

11. The whats we present include kinds of experience — you will suffer if you do that; you’re liable to injure yourself and have a lot of pain. You have only your own sufferings and pains, and your own valuations of them. But the words “suffering” and “pain” have meaning because there are public signs of suffering and pain that you recognize in others and that they recognize in you. This has permitted you to name and talk about suffering and pain, joy and happiness, and other things that manifest themselves through what can be shown.

12. We do not concede that something has value simply because we see someone willing it. It is a question of empathetically placing yourself in his kind of shoes, not in his shoes. The difference between “his” and “his kind” is not the psychology of the situation as best the public signs allow us to understand it — wanting to injure oneself masochistically — but the decision about what to do from there — indulging or abjuring this desire.

13. The recognition of value for others as the value you would find if you were in their kind of shoes is the foundation of ethical objectivity. You act ethically when you refuse to destroy value as you would find it in other shoes, or to deny it when called upon to do so. Unethical conduct, by contrast, usually takes the form of a relativism by which you act upon your desires just because they are yours. It can also be a destruction of value for its own sake — radical as opposed to selfish evil. And moral error is possible, for important whats may go unnoticed, and we may misunderstand the minds to which they point.

14. The Golden Rule avoids being an empty formalism because value is given, not chosen, and because the finding of it is accompanied by public signs. The signs allow empathetic extension, which allows you to recognize the value others find, and then conscience prompts you to respect it should there come any question.

15. As for why you heed conscience, it’s like asking why you find value — there is no why, you just do. Or you just don’t, which is to say that the problem of evil is a real problem. (John Derbyshire, I am closer to your way of looking at ethics — though not to your ethics — than you realize. I’m just laying out whats here; I can’t explain how to value them any more than I can explain how to apply a mathematical operation [as opposed to giving you an instance of its application or a symbolic generalization of such instances]. I do think we disagree here: You value tradition as its own dispositive what, whereas I value it as an extremely useful distillate of the whats that others have valued and therefore a good place to start looking for value. To defend tradition simply because it is tradition strikes me as “special pleading,” an abdication of responsibility, and a suicide of the intellect.)

16. Moral skepticism is possible in a way that epistemological skepticism — how do I know that the world is real, that I’m not dreaming it all up, etc.? — is not. If everything is an illusion, “not being an illusion” has no meaning. If I, whether awake or asleep in the everyday sense, am in some special philosophical sense always dreaming, then I don’t know what it would mean not to be so dreaming, i.e. what it is I am doubting and how I would recognize the truth or falsity of my doubt. The doubt is nonsense because it makes no difference anyway. (Compare Ludwig Wittgenstein’s On Certainty.) On the other hand, we well know temptation as a distinct alternative to conscience. Some people seem not often to be moved by conscience or to recognize value. It looks sort of like we’re all going to die and it’s all going to sort of end (whatever that may mean). And there is a clear difference between seeing the world nihilistically and seeing it full of good and beauty, but this difference cannot be expressed in terms of what is seen. Perhaps the only possible dissolution of these problems is faith: not a belief in some proposition of fact, but a willingness to create and preserve value, and a trust in conscience and the good, no matter what. And perhaps this is a gift eventually due to everyone (whatever that may mean) rather than a choice or a deduction.

17. Epistemological skepticism is about things that can be shown. Moral skepticism is about things that cannot be shown.

18. The expectation that persons will be protected equally under the law is the political consequence of believing that value does not depend on who it is that finds it.

19. You find value as a conscious, mentally competent person. To find the value that something has, you must ask how such a person would look upon it, and you can do so — through empathetic extension prompted by the careful observation of whats — only if you are such a person yourself. (As such a person, you might say that you would find value in others’ restricting your liberty or making decisions on your behalf if you were incompetent. You also might say that others may defend themselves if you attack them.)

20. You do value whats that are not experiences, but you value them — yourself or on behalf of others — as the kind of thing that has experiences, and so if experience is relevant to the valuation you have to take it into account. That’s what I meant when I wrote: “[Girgis] assigns to the body’s reproductive function a fixed value for two classes of person between whom that function’s fulfillment in experience differs greatly, yet for whom the value of sexual intimacy as the expression of love is the same.” It is also part of what the “experiential” in my definition of marriage is meant to convey. (The rest I explain below, at III:11 and III:14.)

21. You find value in states of affairs of which you are not conscious — for example, that your embryonic body was not destroyed. But the moral importance of not murdering a child in the womb or a person who dreamlessly sleeps is based on the value that that person finds or will find in existing. You understand what he would ask in relation to your situation of choice by knowing what you would ask if the roles were reversed.

22. Thus we also explain why sexually abusing an unconscious person “who never finds out and sustains no lasting physical or psychological injuries” is worse than clipping his or her toenails without permission. It is not enough to say that people have bodies and not just minds. You have to ask how persons would value various treatments of their unconscious bodies.

23. My view has no trouble distinguishing vandalism of property from violation of bodies. You distinguish your body from your property, then make a derivative distinction between other bodies and objects that are not bodies.

III. Maximal Experiential Union

1. It is what two people promise to seek when they say to each other, as in a wedding vow, “Because we are in love, I will give myself to you and only to you, and take your good as fully equal to my own, and spend my life with you whatever concrete form that takes.” By extension they promise to their children, should there be any, that they will raise them lovingly in a single stable home, but they do not promise this until such children become recognizable by the public sign of conception.

2. As a promise, it is fulfilled by acts of will and not just feelings, though feelings may help motivate the will. It is also motivated by the goodness of the life they build together and their desire to preserve its value.

3. Requited love is not private.

4. Girgis reduces “being in love” to “feelings” to “urgent desire and ecstatic delight” in order to conclude, with helpful italics, that whatever we are now talking about is best understood as a “bloom on marriage.” I am uncertain as to the meaning of this.

5. For two persons to be in love is not just for them to have certain kinds of feeling. It is also a distinct behavior, and as such it is public signs. Here are some of them: courtship; prioritizing the relationship above other relationships; physical and sexual expression of affection and love; seeking the beloved’s good more urgently and comprehensively than the good of any other person; merging domestic affairs and making a permanent, exclusive, public commitment — the point at which it becomes maximal experiential union.

6. Of course being in love does not require constant strong romantic feeling; you can be in love with someone through an argument or at a time when you feel nothing much at all. But to fall in love does require having romantic feelings, and to remain in love implies their ongoing potential.

7. Of course your feeling toward the beloved changes with time; but at all times it is different from nonromantic feeling, just as being in love with someone is at all times different from friendship and other kinds of relationship.

8. You have only your own romantic feelings, just as you fall in love only with the people you fall in love with. This does not mean we may not take feeling into consideration when asking what someone’s relationship is like and what kind of value it might have — any more than your having only your own headaches means that you shouldn’t offer me some aspirin when I’m rubbing my head and telling you I have a migraine, or that the government should not try to preserve conditions that allow a pharmaceutical industry.

9. Is the only thing that someone in a loveless if honorable marriage misses out on a bloom?

10. Being in love with someone adds a unique qualitative depth to any type of experience you have with that person. The same activities done with a person other than the beloved have less value, and for anything you might care to do with another person, you have a default preference for doing it with the beloved.

11. This does not mean that the person must be capable of doing anything you might care to do, or that you might not at times value solitude. If you do not play tennis and the other does, you will be happy to let him or her play with third parties. The “maximal” does not mean you try never to have an experience without the other. It means you do not share such a comprehensive range of them (including some that are not to be had outside the relationship — see No. 14) with any other person, nor so many, and also that you could not share more or more kinds (insisting on tennis exclusivity) consistent with each other’s good and the health of the relationship.

12. You fall in love with that person. The “maximal” must be understood in relation to your other relationships.

13. A reader asks whether, by “maximal experiential union,” I mean “the maximal subjective experience of union with another” or “the union of experiences to the maximum.” I mean both: that you maximize experiences (Girgis: “joint activity”) in the sense I just defined, and also that you feel a greater sense of union (Girgis: “personal communion”) with the beloved than with any other person.

14. There is one kind of shared experience uniquely appropriate to such union, and this is sex. It differs from other shared experiences in several ways. The focus of each person’s attention and activity is the other person rather than objects such as a tennis racket and tennis ball; the focus is mutual and reciprocal and total; it integrates all the senses in their directedness toward the other; it integrates body, mind, and will in their directedness toward the other. In all these ways it befits and expresses the mutual gift of the self (as I have defined the self) in a way that playing tennis would not.

15. Besides, sexual activity, unlike tennis, forges or intensifies emotional bonds that shift loyalty away from your existing commitment. Sex outside a relationship is uniquely destructive of it.

16. I account much better than Girgis can for any thought we have that non-coital sexual acts may be adulterous.

17. People’s fantasizing or hallucinating about each other would not unite them in the sense I have defined, because they would not be having sex. (It is hard to see how my position would be vulnerable to Girgis’s “hallucination” argument even if I were a Lego-man dualist; ghostly sex still would not unify unless the ghosts actually had it, rather than fantasizing or hallucinating about it — whatever that may mean.) My view explains why a person would not regard himself as having bodily united with another once the fantasy or hallucination ended.

18. When two people speak, is their understanding of each other’s sounds a private psychological state, and would a fantasy or hallucination of conversation therefore achieve communication just as well?

19. Girgis cannot explain what difference it would make if married couples took a drug so as never consciously to experience their coital acts, as long as they shared lives enough to raise children. He says that marital sex is the “loving expression of the spouses’ permanent and exclusive commitment,” but how does this follow from his position, given that he elsewhere deems love inessential to marriage and throughout says that permanence and exclusivity are normative only because the husband and wife are a reproductive unit? Certainly the ability to have and raise children does not depend on how the man and woman feel when they have sex. It does not depend on whether they love each other at all rather than simply pretend to.

20. It is just untrue that I distinguish marital intimacy by degree alone and not by type. I distinguish it by both: as a unique kind of “personal communion” which motivates a degree of life-sharing that surpasses the life-sharing in all the individuals’ other relationships, and which is expressed through the “joint activity” of monogamous sex.

21. “Comprehensive union” is a poor definition of marriage for its indifference to degree. Girgis calls marriage a union of bodies (in his special sense), minds, and wills. Imagine a man and woman who have semiannual sex but otherwise do not see each other except on Sunday mornings to do the New York Times crossword puzzle. Do they not have Girgis’s “axes of union” covered? He cannot dodge the objection by saying that married couples must join minds and wills sufficiently to raise children, for the couple might be the man with testicular azoospermia and his wife.

22. People in our culture typically do not decide to spend their lives together because they expect children; they expect children as a part of deciding to spend their lives together. Through the goods of sexual attraction and life-sharing, nature and culture bring about the goods of procreation and two-biological-parent child-rearing.

23. Since one falls in love with another person as he or she is, some unions include the possibility of procreation while others do not; and some people — those attracted to the same sex; the wife of the man with testicular azoospermia; the husband of a woman who has had endometrial cancer — face a choice between procreation and maximal experiential union. This is fully consistent with the fact that part of what you might fall in love with is the idea of the other person as the mother or father of your children. And there is no “ambiguity” in claiming, first, that maximal experiential union with parenting is deeper than maximal experiential union without it, and second, that either is deeper than relationships that are parental but not maximal experiential unions.

24. I do not draw a “sharp distinction” between “personal communion” and “joint activity” as if they were “two trees growing in the same soil” rather than “a tree and its branches.” I am just the better botanist. Where Girgis mistakes species for genus, I recognize a genus with two species. (And these are not: heterosexual relationships and homosexual ones, but: committed romantic relationships that produce children and those that do not.)

25. I do assume that you cannot choose whom you fall in love with, although you do choose whether to yield. I do not assume that any desire may be yielded to; only that if a sexual desire may not be, this is not due to the parties’ sexes.

26. I do say that committed romantic love is the most valuable kind of intimacy. That some are not lucky enough to have it does not show that I am wrong.

27. Concerning the sexual rogues’ gallery — polyamory, polygamy, incest — and why my definition of marriage rules it out: Incest is not a gift of the self, but the alteration of something that was not yours to give in the first place, namely your relation to this person. (The public-policy considerations — both the reproductive concern and the way in which incestuous relationships would destabilize families — follow from this. What I wrote about “overlapping bodies/minds” did not hit the nail on the head, though it is plausible, and my metaphor apt, if you think more carefully than Girgis did about how bodies — e.g., brains and DNA — are related to minds. It seems he did not think about this, because he obliterated “minds” with his ellipsis.) As for polygamy and polyamory, they are not reciprocal and maximal self-surrender.

IV. Procreative Orientation

1. Girgis thinks coitus achieves bodily union because it is “oriented to” a function, procreation, that each body on its own cannot perform. Against this, I say there are only two senses of “oriented to”: bringing about the consequence of and undertaken for the purpose, or with the expectation, of. They apply as follows. A couple’s awareness that their coital acts may be procreatively oriented in the first sense results in those acts’ being procreatively oriented in the second sense. This is just what is not true of the man with azoospermia and his wife, the woman with no uterus and her husband, and similar cases — let’s call them the “example couples.” The second sense does not apply because they know the first does not.

2. Likewise the elderly couples Girgis mentions. I thank him for the example.

3. What does “dynamism” mean for the man with azoospermia and his wife when Girgis writes: “The behavioral parts of the process of reproduction do not lose their dynamism toward reproduction if non-behavioral factors in the process . . . prevent conception from occurring”? I think it can mean only: If a different couple were doing what these two are doing, it might then have some dynamism toward reproduction. This hardly explains why these two should follow marital norms, or demonstrates that they are, “in a strong sense,” whatever that may mean, one flesh.

4. I can even concede the reality of final causes — if we look carefully enough at the instances pointing to them.

5. It is only the vagueness of this “dynamism,” this sloppiness that does not look carefully enough at instances before assigning them to kinds, that lets Girgis count as “reproductive units” couples who are no such thing. That is the real “gerrymandering.”

6. If on some occasion a person’s intestines could not absorb nutrients and he knew it, his chewing on that occasion precisely would not be oriented to digestion. And if he knew they never could, it never would be.

7. In his law-review article, Girgis compares the coital acts of infertile persons to the practice of a losing baseball team. But it is possible that the team will win someday, and it practices under that assumption.

8. Girgis’s invocation of bodily union (in his special sense) does nothing to explain what would be wrong with the example couples, or an elderly couple, if they were brother and sister. Whatever it is, it has nothing to do with procreation.

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.

 

VI. Summary

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.

3. Based as it is on recognizing signs of value, my argument does not presume to know the precise nature of others’ experiences (and in any case, “knowing the precise nature of an experience” means nothing other than having that experience). It simply posits their categorical similarity to our own when manifested by similar signs.

4. When we attend to signs of value, it becomes clear that committed romantic relationships are uniquely plausible candidates for default protection and privileging over other kinds of relationship. It is a reliable sign of whom someone would want to make decisions on his or her behalf, inherit his or her property, care for his or her dependents, and so on that he or she is having exclusive sexual relations with that person and that the two have merged domestic affairs in a way suggesting an intention of permanence.

5. Nor is it a question of our going out and looking for relationships to protect. When couples in committed relationships wish publicly to exchange vows and pledge exclusivity and permanence, they present us with the signs of value. The test of conscience is then whether to acknowledge them.

6. I think Girgis is not noticing the signs because he has already decided matters dualistically. His criterion for ruling that same-sex relationships are less valuable than those of the example couples is: “What do they do sexually with their bodies?” He stops there, and so omits from his account everything that — based on the public signs — we might plausibly assume committed same-sex couples to be thinking and feeling. Whatever Girgis the metaphysician believes, Girgis the ethicist looks at them as minds/bodies.

7. Or perhaps he does make an assumption about their minds, namely that they aren’t really in love in a way that is like the way the example couples are, feeling something like what the example couples feel, committing to each other as the example couples do, but rather that they are using each other to get a kind of sensual gratification. Perhaps he has that in mind when he tells us that the body is “no mere instrument for producing desirable feelings.”

8. I don’t know what it would mean to think one’s body an instrument for producing one’s own desirable feelings. “A telescope is an instrument for seeing distant bodies” — this I understand.

9. If rather than that the body is no mere instrument for producing desirable feelings, Girgis had written that one should not sacrifice lasting fulfillment for passing sensual gratification, I would understand and agree.

10. “That person’s body is an instrument for producing my desirable feelings” — this I understand and deplore. It is dualistic in a way similar to Girgis’s view of same-sex relationships and his apparent prescription, in his law-review article, of celibacy for homosexuals. Common to all is that in action they alienate selves from their bodies by paying no heed to the minds that come with the bodies.

11. The basic problem with Girgis’s philosophical outlook — and, frankly, the outlook of the entire tradition he represents — is its studied obliviousness to the reality of perspective. It is nothing less than a failure to think of persons as persons.

12. Its manifestation is a poverty of empathy that fancies itself an avoidance of sentimentalism.

VII. Judo-Like Deflection of Ill-Judged Rhetorical Blows

1. “For Steorts . . . marriage is ‘maximal experiential union’: It consists in ‘two persons’ sharing each other’s lives — conceived not as the facts about their bodies plus the facts about their minds, but rather as the facts about their experienced unity of the two — as comprehensively . . . as possible.’ Readers might wonder in what sense they could share ‘the facts about’ that experienced unity (or is it the experience of that experienced unity?) with their spouse. They might further wonder whether Steorts’s taste for oracular pronouncements hasn’t overwhelmed concern for coherence in this, the central statement of his definition of marriage.” To the contrary, the attentive reader would have noticed that between the dashes, and between them only, I discuss our conception of a thing rather than the thing itself and contrast alternative conceptions. (And kindly restore the words “and deeply” for which ellipses have tendentiously been substituted.)

2. “Steorts suggests that we might have formed sexual relationships even if our species reproduced asexually — a fantasy that your scientifically minded sixth-grader could dispel.” No, I stipulate this in answering a thought experiment from Girgis’s law-review article. He asked whether, if human beings reproduced asexually, any society would have developed an institution like marriage. I am arguing that sex and marriage attain a good distinct from procreation and child-rearing even when they also attain these goods, or have possibility or hope or expectation of them, i.e. real procreative orientation — so without the stipulation his thought experiment begs the question. It’s not that, as an empirical matter, human beings might have sex drives if the species reproduced asexually. What does seem empirically true is that the sex drive, along with the possibility of committed romantic love to which it gives rise, is in some human beings naturally directed toward persons of the same sex. (In connection with this, a humane thought from a character of Philip K. Dick: “There is nothing, he realized once more, which is ‘outside’ nature; that is a logical impossibility. In a way there are no freaks, no abnormalities, except in the statistical sense. This is an unusual situation, but it’s not something to horrify us; actually it ought to make us happy. Life per se is good, and this is one form which life takes. There’s no special pain here, no cruelty or suffering. In fact there is solicitude and tenderness.” —Dr. Bloodmoney, or How We Got Along after the Bomb)

3. If Girgis finds his interlocutor’s position “difficult to rephrase without seeming to ridicule,” might it be that he has read ridiculously?

4. “[Steorts] sneers [I do not] at the idea that ‘the value of a relationship between two persons in love [would] depen[d] on the structure of their genitals.’ He might as well ridicule the idea that Juliet’s attraction to Romeo would depend ‘on the structure of Romeo’s genitals.’” Here Girgis confuses Juliet’s attraction to Romeo with the value of committed romantic love as such. He might as well say that Romeo cannot love Juliet unless Sherif Girgis loves her too.

VIII. Disclaimer

1. I am not making a legal argument. As the editors of this magazine have argued, the Constitution is silent on the question of same-sex marriage, not having contemplated it. This debate is properly to be resolved through legislative action or plebiscite, and my purpose has been to present the considerations that strike me as relevant to that resolution. (Professor Franck, that is all I meant by “Let us now write our marriage law on a tabula rasa.” You misunderstood me about the lotus flowers, too — see VII:2.)

2. I would oppose any effort to deprive any private entity of the liberty to teach and express what it believes is right, or to compel it to perform marriages or offer adoption services against its conscience.

— Jason Lee Steorts is managing editor of National Review.

 

 

 

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