A growing number of state and federal judges have argued that there is no rational basis for defining marriage in law as a heterosexual union, and that such a definition must therefore be based either on religious beliefs or on prejudice against homosexuals. Patrick Lee and Robert George’s new book constitutes undeniable evidence to the contrary.
The authors turn the courts’ “lack of rational basis” argument on its head by showing that, unless marriage is understood as a conjugal union, there is no principled, non-arbitrary basis for calling some human relationships “marriages” and others not. It can’t be sexual intimacy that distinguishes married from non-married couples, since not every sexually intimate relationship is a marriage. It can’t be sharing a household, since that would imply that communities of nuns, or widowed sisters living together, are married. The same is true of raising children together. And (pace Chief Justice Marshall in the Massachusetts Goodridge decision) singling out marriage because it is a monogamous and permanent relationship ignores the question of why it should have those features — a question that, the authors claim, can be given a principled answer only if one understands marriage as a conjugal union.
So what is a conjugal union? How does the conjugal conception of marriage explain what other conceptions cannot — i.e., how marriage differs in kind from other intimate relationships, why most people consider sexual relationships to have a special meaning, and why marriage inherently calls for monogamy and permanence? According to Lee and George, what specifies marriage as a distinctive type of community is its “procreative orientation,” by which they mean not that marriage is instrumental to procreation, but that marriage is uniquely “the kind of communion that is naturally extended by having and rearing children together.” This point is inseparable from the claim that marriage differs in kind from other intimate relationships owing to its comprehensiveness: It is not only a union of hearts and minds, but also a genuine biological union, and thus unites a man and a woman on all of the basic dimensions of their being. Such a biological union is possible only in coitus, which is not a mere interlocking of body parts but a joint coordination of the male and female reproductive organs toward the single biological end of procreation.
Lee and George take pains to clarify that this joint coordination occurs even when (as is usually the case even for fertile couples) procreation does not result. What makes marriage a distinct type of relationship is not actually having children, but forming a genuine biological union of the type that would be fulfilled by procreation. “To be genuinely married, a couple need not actually procreate,” the authors insist. “But in order to marry, a couple — any couple — must commit themselves to the type of personal union that would be fulfilled by bearing and raising children together and to the conduct by which they become biologically one.” Infertile opposite-sex couples can do this, and therefore they can form a true marital union.
Lee and George’s account explains why sex is inherently meaningful — why, for instance, most wives are (rightfully) skeptical when an adulterous husband dismisses the importance of his infidelity by claiming that the extramarital sex was meaningless, just one more way of having some fun after a stressful day. For, as Lee and George put it, “a sexual act is in truth far from trivial,” because sexual intercourse “is the deepest bodily union one can choose to have with another person, and it is the kind of bodily union that calls for union on all levels of the person.” Further, if sex is just a conventional symbol or gesture that can mean different things in different circumstances, there seem to be no principled grounds for claiming that incest, bestiality, pedophilia, or group sex are morally wrong.
The conjugal conception of marriage, as the unique kind of community that is embodied by sexual intercourse, also provides a basis for the norms of monogamy and permanence. Marriage demands a lifelong, exclusive commitment both because of its inherent orientation to procreation (present even when a couple is infertile) and because of its nature as a “comprehensive, multileveled (biological, emotional, volitional) union.” This comprehensiveness is incompatible with an openness to other sexually intimate relationships as long as one’s spouse is still alive.
In the book’s final chapter, which can serve as a stand-alone argument for the reader interested exclusively in the public-policy aspect of the issue, Lee and George show why a legal redefinition of marriage that excludes the requirement of sexual complementarity would be inherently unjust and profoundly harmful to society as a whole. They also explain the problems with libertarian proposals for privatizing marriage. What differentiates Lee and George’s case from the majority of arguments against same-sex “marriage” is that they focus not on the instrumental value of heterosexual marriage as the ideal setting for childbearing and childrearing, but rather on marriage’s intrinsic value, and on the harm involved in undermining the public understanding of marriage by offering a false definition of it in law.
The harm of misrepresenting the true nature of marriage in law may seem merely speculative; but consider the effects of no-fault divorce laws, which Lee and George also criticize. By conveying a false understanding of marriage as “an essentially emotional linkage” rather than “a union of lives, with an objective structure and grave responsibilities,” no-fault divorce laws have contributed to the overall devaluation of marriage in our culture, as evidenced by increased divorce, declining marriage rates, and increased cohabitation. The authors also point out that unilateral no-fault divorce is gravely unjust to many spouses, and that social-science evidence now clearly shows that divorce harms children. They propose some modest reforms — such as longer waiting periods for mutually consensual divorce and allowing unilateral divorce only for grave cause — that they believe could help to restore a sounder public understanding of marriage.
Certainly, no one who reads this book carefully and with an open mind can ever reasonably claim that conjugal-marriage laws have no basis apart from faith or prejudice. It is a model of reason-based argumentation in a debate dominated by simplistic slogans and emotional appeals. For those who want a deep philosophical account of what marriage is and why it matters both legally and morally, Conjugal Union is an excellent resource. For those who oppose the conjugal view of marriage, it is a formidable challenge.
– Melissa Moschella, an assistant professor of philosophy at the Catholic University of America, is the 2014–15 Myser Fellow at the Notre Dame Center for Ethics and Culture.