It’s the fall of 2006. John Partilla, an Upper West Side advertising executive, meets Carol Anne Riddell, a local news anchor. Like-minded and both brimming with energy, they hit it off; within five years, they’re exchanging vows. But when the New York Times covers their wedding, it sparks a blaze of controversy. Why?
Partilla and Riddell were already married when they met — at their children’s pre-kindergarten. In fact, their families became friends. But rather than “deny their feelings and live dishonestly,” they decided to abandon their spouses and children. As the Times put it, “All they had were their feelings, which Ms. Riddell described as ‘unconditional and all-encompassing. . . . It was a gift . . . but I had to earn it. Were we brave enough to hold hands and jump?’”
Just days before Partilla and Riddell’s story appeared in the Times, Robert P. George, Ryan T. Anderson, and I posted online an article to be published in the Harvard Journal of Law and Public Policy defining and defending what we called the “conjugal view” of marriage, according to which marriage is inherently the union of one man and one woman. We showed how redefining civil marriage to include same-sex romantic partnerships would speed the cultural currents that led Partilla and Riddell to “jump,” and thus seriously harm the common good. Recently in these pages (“Two Views of Marriage,” Feb. 7), Jason Steorts published a counterargument that, while not mentioning Riddell and Partilla, amounts to a brief in their defense.
That counterargument is false in almost every dimension. Steorts builds a faulty theory of marital love on a confused account of the human person. He construes marriage as “maximal experiential union” — a goal that, to the extent that it is intelligible at all, would put undue strain on spouses, obscure the value of norms specific to marriage (like permanence and exclusivity), and bulldoze the topography of non-marital relationships. It would thus tend to undermine the marriage culture, and with it the welfare of spouses and children. But it would also affect the unmarried, by obscuring the special value and social prestige of other forms of intimacy. Steorts’s view, imbued with sentimentalism, is in fact less humane than the view it would displace.
Steorts wrote his argument with enough acuity to flag certain common philosophical errors, but not enough care to avoid them — with the remarkable result that its early sections contain, in plain language, rebuttals to the rest. But it is worth rehearsing its problems here and showing how the conjugal view of marriage avoids them. The reason is simple: For all its problems, Steorts’s argument captures and condenses the nebulous ideas behind today’s movement to redefine civil marriage, yesterday’s push for no-fault divorce, and other corrosive trends. Answering it convincingly will hasten the day when the invitation to join Riddell and Partilla’s jump into emotivism is seen for what it is — a call to cultural suicide.
COMPETING VIEWS OF MARRIAGE
George, Anderson, and I argue that marriage is a unique form of friendship in being comprehensive and inherently oriented to procreation. As a comprehensive union, it unites not merely minds and wills, but also bodies. Human beings can achieve bodily union only when they cooperate in coitus, which makes two people into a single reproductive unit. As a union inherently oriented to procreation, marriage is sealed and distinctively embodied in this reproductive kind of act. (That is, although spouses may deepen their union through any number of activities, only coitus is per se marital, which is why it has historically been called the “marital act.” The law has never treated sodomitical acts, even between a wedded man and woman, as marital or capable of consummating marriage.) Our account of marriage explains why it is structurally different from other forms of friendship (e.g., pledged to permanence and exclusivity), why it is of particular interest to the state, and why two persons of the same sex cannot (any more than triads) form a marriage.
For Steorts, on the other hand, 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.
Let’s try again. “Maximal experiential union” plainly suggests a sharing, to the greatest possible extent, of experiences. Now the word “experiences” could mean activities: e.g., drinking a Sauternes, climbing Kilimanjaro, making love. Or it could mean the psychological qualities, or states of mind, attendant on our activities: e.g., pleasures of taste, a sense of thrill, erotic desire and satisfaction. Which sense does Steorts mean?
He says that marriage requires “facing major life events jointly” and is deeper where it includes rearing children — i.e., sharing activities. But then he declares that “any union of two persons who are in love” — who have a certain mental quality of experience, certain feelings — “is deeper than that of any two who are not, even if they have reproduced . . . because only in romantic relationships can persons fully and reciprocally share themselves.” (And, though trumping in importance shared activities, such romantic desire for, and “existential commitment” to, the other’s whole person must be fostered in “the experience of sexual intimacy.”)
Steorts never resolves and perhaps never notices this ambiguity in his account. My best guess is that he sees two people as married (as having “maximal experiential union”) if they fully share themselves; and that this requires being in love (i.e., having certain feelings for each other), being sexually intimate, and being committed to sharing as many activities (“life events”) as possible. But even so polished, Steorts’s theoretical lens would distort our vision of social institutions as well as persons, and thus of valuable private as well as public norms; the conjugal theory fares better on every score.
First, Steorts’s view of marriage as maximal experiential union misconstrues what is essential for marital love. After all, if a certain emotional state (being in love) were necessary, as Steorts suggests, then it would be impossible to commit sincerely to marriage. For this would require promising to keep up feelings, over which you have no direct control, and you can’t sincerely promise to secure what you can’t control. Moreover, true unity depends on the presence of a genuinely shared good, but feelings are inherently private. (As Steorts admits in another connection, “each of us is trapped in his own experience.”) So feelings can only give valuable texture and depth to individuals’ separate appreciations of another good, which is shared. That is why fixation on feelings can make love degenerate into selfish (even if reciprocal) gratification.
Marriage is before all else a matter of the will: two people’s commitment to act for each other’s good and to cooperate in ways specific to their form of love. Urgent desire and ecstatic delight, while often important motivations, are best seen as a valuable bloom on marriage: indicative of health and appealing in themselves, but seasonal at best. That is why spouses aren’t any less married after 50 years than on their fifth day — or after a long day on the job than on a libidinous Saturday morning. That is also why it would have been in no way “dishonest” for Partilla and Riddell to stay with their spouses and children.
To escape the seductions of sentimentalism, we must reject Steorts’s sharp distinction between marital communion (“the experience of two people who are in love”) and marital activities (“reproduction and its consequences”). To include same-sex partnerships as marriages, Steorts distinguishes marital communion mainly by the first — sexual sentiment or desire — understood without any inherent reference to organic bodily union, its orientation to procreation, or the kind of life-sharing that these realities call for. And to make this conceptual separation of romantic desire from its inherent fulfillments plausible, 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.
In reality, the connection between personal communion and joint activity (in any bond, marriage included) is less like that between two trees growing in the same soil (often lumped together, but really separate) than that between a single tree and its branches: A tree is built up and extended by its branches, which give it distinctive shape; and species of trees can be picked out by their distinctive branches. Just so, personal communion is built up and extended by joint activities, which give it distinctive shape; and types of communion can be picked out by the joint activities that distinctively embody them.
For this reason, we learn something about a relationship from the way it is sealed or embodied in certain activities. Ordinary friendships center on a union of minds and wills, by which each person comes to know and seek the other’s good; thus, friendships are sealed in conversations and common pursuits. Scholarly relationships are sealed or embodied in joint inquiry, investigation, discovery, and dissemination; sports communities, in practices and games.
But marriage, on the conjugal view, is a comprehensive union of two sexually complementary persons who seal (consummate or complete) their relationship by the generative act — by the kind of activity that is by its nature fulfilled by the conception of a child. So marriage itself is oriented to and fulfilled by the bearing, rearing, and education of children. The procreative type of act distinctively seals or completes a procreative type of union.
That an orientation to procreation distinguishes marriage from other unions does not mean that procreation must be the most important aspect of a marriage, much less its sole point. Comprehensive union itself — of mind, heart, and body; permanent and exclusive — is of great inherent value, and distinct from the value of general friendships (unions of hearts and minds).
But even this comprehensiveness is achieved only through generative acts. Thus, we can see marital union’s procreative orientation in its essential structure, onto which cultures (and couples) graft other practices according to circumstance and taste: Having committed to engage in the generative acts that unite them bodily, spouses cooperate in other areas of life (intellectual, recreational, etc.) at least to the extent that this would be needed for fostering children’s overall development, and in the tasks of parenting where children do come. And these activities are truly shared goods — unlike the inherently individual feelings that color spouses’ experience of them.
Steorts’s “maximal experiential union” model, by contrast, would distinguish marriage from other friendships by differences in the degree, not the type, of good shared. In understanding that good so broadly (united experience), it recognizes just one currency of love in action, which we are to spend to the maximum on our spouse. That is, here as elsewhere, Steorts’s view makes sentiment controlling. It distinguishes “types of intimacy” by their emotional qualities, but not at all by the kind — only by the amount — of sharing in goods or activities. This is what makes Steorts’s view subversive of important marital norms and bad for all concerned: Taken seriously, it would make the marital norms of permanence and exclusivity at once impossibly demanding and poorly grounded, in a way that threatens to undermine the good of spouses, children, and the unmarried.
THE EFFECT OF SPOUSES
First, Steorts’s view makes these norms impossible to meet — if in permanently and exclusively committing to a “maximal experiential union,” two people promise to maximize the number of experiences between them, and only them, till death do them part. Then a man would effectively be committing adultery every time he golfed, cooked, discussed art, or shared any other meaningful experience with anyone besides his wife — that is, every time he fostered another friendship. If spouses were not each other’s best hobby partner, physical trainer, intellectual interlocutor — indeed, everything to each other — their marriage would be defective. This impression would make spouses more likely to find their union by turns strained or wanting as judged by an impossible standard.
Steorts may reject these implications, but he cannot escape them. To find a principled limit to the requirements of marital unity, he would have to identify certain activities and ends (in short, a certain type of love and sharing) as more central specifically to marriage, and thereby distinguish it from other types of human bonds, marked by their own characteristic activities and ends. Then marriage would not be totalizing; it would be clear which activities we owed our spouses in marital love; which activities we owed it to them not to share with others; and which we could share now with them, now with others, without any compromise of our marriage.
Only the conjugal view gives marriage a distinctive shape — by highlighting orientation to procreation through bodily union. Steorts is welcome to suggest an alternative distinctively marital activity, to be shared between spouses and them alone as a unique expression of their form of communion, and its corresponding broader obligations. But I do not see how he can avoid either gerrymandering to include same-sex partnerships but not (say) triads, or relapse into an ideal that would trigger terminal claustrophobia in any normal person.
But even as Steorts’s view expands the norms of marriage beyond recognition (and practicality), it rests them precariously on the shifting ground of deep romantic feeling — which varies, like all emotions, in quality and intensity. Moreover, because there is no reason that primarily emotional unions any more than ordinary friendships in general should be permanent, exclusive, or limited to two, these norms of marriage would make less sense on Steorts’s model. That is, it would make less sense why the experiential union of marriage should be maximal at all. Less able to understand the rationale for these marital norms, people would feel less bound by them. (See, for example, Andrew Cherlin’s The Marriage-Go-Round on how the rise of expressive individualism relates to the divorce revolution.) And less able to understand the value of marriage itself as a distinctive type of union, even apart from the value of its emotional satisfactions, people would increasingly fail to see the inherent reasons for marrying or for staying with a spouse absent consistently strong feeling — or, as for Partilla and Riddell, in the presence of strong temptations to form fresh “maximal experiential unions.”
Of course, marriage policy could go bad, and already has, in many ways. The issue of same-sex unions is not uniquely important, but it is the focus of a live debate whose results have wide implications for reforms to strengthen our marriage culture. Social and legal developments have indeed worn the ties that bind spouses to something beyond themselves and thus more securely to each other. But redefining marriage to accommodate same-sex partnerships would mean cutting the last remaining threads. After all, underlying people’s adherence to the marital norms already in decline are the deep (if implicit) connections in their minds between marriage, bodily union, and children. Steorts’s proposal would not just wear down but tear out this foundation — the basis for reversing other recent trends and restoring the many social benefits of a healthy marriage culture.
The conjugal view, by contrast, makes sense of marital norms, and makes them specific enough to be livable. For if bodily union is essential to marriage, we can understand why marriage is incomplete and can be dissolved if not consummated; and if it is comprehensive, we can understand why it should be, like the union of organs into one healthy whole, total and lasting for the life of the parts (“till death do us part”). That is, the comprehensiveness of the union across the dimensions of each spouse’s being calls for a temporal comprehensiveness, too: through time (hence permanence) and at each time (hence exclusivity).
Furthermore, fostering the conjugal view deepens spouses’ motivation to live by marital norms. Spouses who clearly grasp the orientation of their union to procreation and childrearing will want to make of their marriage the stable and harmonious context that children require. Sociology and common sense agree that this excludes divorce — which deprives children of an intact biological family — and infidelity, which introduces distrust and rancor and divides attention and responsibility, often with children from other couplings. (On the importance of marital stability and fidelity see, e.g., Shannon E. Cavanagh in Journal of Family Issues, Jan. 4, 2008, and Paul R. Amato and Stacy J. Rogers in Journal of Marriage and the Family, August 1997.) In relationships that lack this comprehensiveness and orientation to children, it is hard to see why permanence and exclusivity should be, not only desirable when not too costly (like stability in any human bond), but inherently normative for anyone in that relationship.
THE EFFECT OF CHILDREN
In so undermining marital norms, Steorts’s proposal would also adversely affect children. According to the best available sociological evidence (cf. the Witherspoon Institute’s “Marriage and the Public Good: Ten Principles”), children fare best on virtually every indicator of well-being when reared by their wedded biological parents. Studies that control for other relevant factors, including poverty and even genetics, suggest that (in the words of sociologists Wendy D. Manning and Kathleen A. Lamb) “the advantage of marriage appears to exist primarily when the child is the biological offspring of both parents.” Children reared in intact homes fare best on the following indices:
- Educational achievement: literacy and graduation rates
- Emotional health: rates of anxiety, depression, substance abuse, and suicide
- Familial and sexual development: strong sense of identity, timing of onset of puberty, rates of teen and out-of-wedlock pregnancy, and rates of sexual abuse
- Child and adult behavior: rates of aggression, attention deficit disorder, delinquency, and incarceration
Thus, with the further erosion of marital norms, the state would be forced to play an ever greater role in children’s health, education, and formation more generally, with those in the poorest and most vulnerable sectors of society being hit the hardest, as the evidence cited in my article with George and Anderson shows.
Peer-reviewed studies referenced there also indicate that men and women generally bring different gifts to the parenting enterprise, and that boys and girls tend to benefit from fathers and mothers in different ways. With the recognition of same-sex partnerships as marriages, no civil institution would any longer reinforce these points, and there would be proportionately less motivation for individuals and communities to make decisions based on the mother-father parenting ideal.
This helps to explain why weakening marital norms would be a catastrophe for limited government. Absent a flourishing marriage culture, families often fail to form or maintain stability. As absentee fathers and out‐of‐wedlock births become common, social pathologies increase, as does the demand for governmental policing and social services. According to a Brookings Institution study, $229 billion in welfare expenditures between 1970 and 1996 can be attributed to the breakdown of the marriage culture and the resulting exacerbation of social ills. Research on Scandinavian countries by sociologists David Popenoe and Alan Wolfe also supports the conclusion that as adherence to marital norms declines, state spending rises.
THE EFFECT ON THE UNMARRIED
Finally, Steorts’s “maximal experiential union” view would diminish the value of non-marital bonds, as between sisters or deep friends, by sending the message that marriage offers more — indeed, the most — of what makes any union valuable: shared experience. Those who cannot find a mate or commit due to prior obligations must, in Steorts’s plan, just settle for less.
Indeed, though Steorts accepts and tries to defend traditional norms against incest, including by appeal to the “nature of blood relations,” it is hard to see how his theory, in treating marriage as maximal, could avoid seeing the sexualization of two adult brothers’ relationship as primarily an upgrade: an increase in their degree of union. What could be wrong with that? Only when we recognize more robustly different types of union — refusing to divide them into maximal and less-than-maximal — can we begin to understand how two types (say, fraternal and marital) are incompatible, so that a switch from one to the other would not increase love but pervert it.
More positively, only if there are different basic types of bonds can people know the depth, passion, and intimacy proper to some type — e.g., friendly or fraternal — without thereby undermining their marriage, and indeed even if they are unmarried. Consider in this connection Atlantic blogger Ta-Nehisi Coates’s admission that he had until recently never considered the possibility of deep non-romantic friendship. Reading about historical examples of it “actually opened up some portion of my own imagination — the possibility of feeling passionate, but not sexual, about someone who I wasn’t related to,” he confessed. “‘Passion’ isn’t a word that often enters into the description [of] friendships these days. And yet [it’s] present in the writings of previous generations” — when people didn’t equate marriage with intimacy, and intimacy with marriage, but recognized it as the highest realization of one type of intimacy among others.
But the conjugal view, in distinguishing several axes of union, would allow for different types of love and sharing, each with its own scale of depth. Indeed, it is a point lost on many in this debate that the more the conjugal view prevails, the easier it will be on the unmarried, who will be less susceptible to thinking that what they lack is the most valuable kind of relationship, or the only opportunity for deep intimacy. Yes, only marriage unites both minds and bodies and inherently requires some sharing in most areas of life, since such cooperation would foster the good of children, to which marriage is oriented. But precisely because it sees marriage as oriented to procreation and true bodily union, and not simply to shared experience, the conjugal view leaves plenty of room for other types of bonds to have their own depth, passion, and constancy of presence and mutual care.
THE HUMAN PERSON
Steorts might object that he does meaningfully distinguish the type of love and sharing specific to marriage, by agreeing with the conjugal view that marital union must include bodily union, which he simply sees differently than do George, Anderson, and I. Or he might reply that our view proves too much — for example, by implying that infertile couples cannot unite bodily. But such replies reflect an error about the makeup of the human person — one so implausible on inspection that Steorts himself professes to reject it, even though it is essential to his theory. Sometimes called “body-self dualism,” it sees human persons as mere minds or consciousnesses that inhabit and use their bodies as vehicles or extrinsic instruments. Against this view, Steorts claims to agree with my co-authors and me that the human body is an integral part of the human person. But it does not take much analysis to see that despite his protestations, Steorts fails to take the body seriously — to see the moral significance of the fact that the body is no mere instrument for producing desirable feelings, but a real part of one’s person.
Why should full personal union require sexual activity? Having turned to the question, Steorts merely points out that sexual desire is desire for a person. No doubt. But desire is a psychological state. If Steorts requires sexual intimacy just as a way of fostering and expressing certain emotions, which form the real “maximal union” of persons, then he hasn’t really understood bodily union and its centrality to marriage, or escaped body-self dualism, after all. Indeed, Steorts justifies his conclusion that any sexual activity can unite just as well as coitus on the ground that same-sex partners’ sexual activity is no different “in experience” — that is, psychologically — from a husband and wife’s conjugal acts. He thinks that both couples have the same basic attitude toward their respective acts, and that this is all that matters. So it really is just the mental experience or sense of unity that matters. But this is obviously false, for it implies that people’s hallucinating or fantasizing about each other could unite them bodily.
Nor does it help Steorts to insist, as he does, that maximal experiential union should occur only between “peers whose bodies . . . are complementary rather than overlapping.” Set aside the inapt metaphor of “overlapping” bodies, by which Steorts presumably means similar ones. If “complementary” does not mean “sexually complementary,” what does it mean? Should sprinters seek marital union only with distance-runners? Does that matter more for the possibility of bodily union than sexual difference? Here as elsewhere, Steorts’s argument is so confused and implausible that it is difficult to rephrase without seeming to ridicule. Perhaps Steorts means just that a couple should be “compatible” in the bedroom. But then personal union seems again to be about psychological or emotional realities, presumably because persons are essentially centers of consciousness and feeling. But this is precisely the dualism that Steorts claims to reject.
Steorts’s ultimate failure to ground an integral role for sexual or bodily union is unsurprising. The only way to show how sexual union can be valuable not only as a means of fostering feelings, but also as an integral part of marriage, is to accept the conjugal view. Only coitus achieves real bodily union. After all, our organs — our heart and stomach, for example — are parts of one body because they are coordinated, along with other parts, for a common biological purpose of the whole: our biological life. So for two individuals to unite organically and thus bodily, their bodies must be coordinated for some biological purpose of the whole.
That sort of union is impossible in relation to functions such as digestion and circulation, for which the human individual is by nature sufficient. But individual adults are naturally incomplete with respect to one biological function: sexual reproduction. In coitus, but not in other forms of sexual contact, a man and a woman’s bodies coordinate by way of their sexual organs for the common biological purpose of reproduction. They perform the first step of the complex reproductive process. Thus, their bodies become, in a strong sense, one — they are biologically united, and do not merely rub together — in coitus (and only in coitus), similarly to the way in which one’s heart, lungs, and other organs form a unity: by coordinating for the biological good of the whole. In this case, the whole is made up of the man and woman as a couple, and the biological good of that whole is their reproduction.
In other words, organic bodily unity is achieved when a man and a woman coordinate to perform an act of the kind that causes conception — a generative act. If it is a free and loving expression of spouses’ permanent and exclusive commitment, a generative act is also marital. Because interpersonal unions are valuable in themselves, and not merely as means to other ends, a husband and wife’s loving bodily union in coitus and the special kind of relationship to which it is integral are valuable whether or not conception results and even when conception is not sought. But two men or two women cannot achieve organic bodily union since there is no bodily good or function toward which their bodies can coordinate, reproduction being the only candidate. This is a clear sense in which their union cannot be marital, if marital means comprehensive and comprehensive means, among other things, bodily. This also explains why our law has historically treated coital consummation, not childbirth, as completing a marriage.
In reply, Steorts objects that not all coital acts are of the generative type. While “a millennium or two ago . . . every instance of coitus seemed to be of the same kind,” today we see “physiological differences between fertile and infertile couples” that belie this. But such condescension toward a benighted past is, besides tiresome, misplaced. Of course the ancients knew that there were physiological causes of sterility (e.g., in the elderly, and in all couples most of the time). And yet thinkers like Plato, Aristotle, and Plutarch either took for granted or explicitly affirmed that even sterile coital acts — precisely because of their unitive nature — could be marital.
To see why these remain generative acts, consider digestion, the individual body’s process of nourishment. Different parts of that process — salivation, chewing, swallowing, stomach action, intestinal absorption of nutrients — are each in their own way oriented to the broader goal of nourishing the organism. But our salivation, chewing, swallowing, and stomach action remain oriented to that goal (and remain digestive acts) even if on some occasion our intestines do not or cannot finally absorb nutrients, and even if we know so before we eat.
Similarly, the behavioral parts of the process of reproduction do not lose their dynamism toward reproduction if non-behavioral factors in the process — for example, low sperm count or ovarian problems — prevent conception from occurring, even if the spouses expect this beforehand. As I have argued, bodies coordinating toward a single biological function for which each alone is not sufficient are rightly said to form an organic union. Thus, a man’s and a woman’s bodies can coordinate toward the single biological good of reproduction — and so be united much as organs coordinating toward the single biological good of an individual’s life are — even where physiological factors ultimately prevent conception. Infertile couples can carry out the same (generative) kind of behavior, for the same reason: to consummate or renew — physically seal or embody — their multi-level marital union. Inasmuch as it completes this valuable comprehensive interpersonal union, the marital act is itself valuable. But two men’s or two women’s bodies cannot coordinate toward a single biological good — or organically unite, or physically seal a multi-level personal union — in any sense at all.
BODILY UNION: ESSENTIAL FOR COMPREHENSIVE UNION
Steorts’s thinly veiled contempt for these conclusions — and, implicitly, for the body as part of the person — is exposed when he sneers 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,” or for that matter that the moral rights of the comatose would depend on “the structure of their genes,” which code for personhood. Comprehensive interpersonal union requires not what Steorts calls the “experience” of bodily unity (certain pleasures, thoughts, sensations) but its achievement, in coitus. Because our bodies are parts of our persons, “merely bodily” differences can suffuse our whole being and ground moral differences.
There are two millennia worth of compelling metaphysical arguments aimed at showing the presupposition of this: that the body is an integral dimension of the human person. But here it will suffice to consider other moral indications of the same point: If someone ruins your car, he vandalizes your property, but if he amputates your leg, he injures you. There is a difference in kind between vandalism and violation; between destruction of property and mutilation of bodies. Moreover, part of what is peculiarly perverse about torture or sexual exploitation is that it uses one aspect of the person (his body) against another aspect of his self (wishes, choices, commitments). That is why rape remains gravely wicked when performed on a comatose person who never finds out and sustains no lasting physical or psychological injuries. It still involves misusing — ab-using — a person, and not merely using and replacing intact his or her property. Relatedly, you can licitly relinquish all rights over your property, but you cannot do the same with your body or its capacities for labor: Not just slavery but even voluntary servitude — the relinquishing of all rights over your own body and its capacities — is ruled out, because your body is (part of) you and not just your property.
If Steorts rejects the special value of bodily union in marriage apart from its psychological effects, how can he account for the special and inherent harm of bodily abuse? But if he acknowledges that full personal union requires bodily union, he must take the body on its own terms. He must accept the objective conditions of its distinctive kind of unity — the coordination of parts for the single biological good of a whole — which adults can achieve only in coitus.
Thus does the sentimentalism of Steorts’s view, like all sentimentalisms, reflect a stunted humanism: It ends by misperceiving, and finally harming, the good it set out to serve. By understanding human beings, their union, and their fulfillment too narrowly in terms of degrees of emotion, it devalues the various friendships and destabilizes the marital goods of which pleasures and other experiential delights are best seen as welcome perfections.
* * *
Jason Lee Steorts replies: Consider a man who has testicular azoospermia, knows it, falls in love with a woman, and discloses 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 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 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 spend their lives together, and want the law to protect their commitment when it comes to e.g. property and health care? And are a same-sex couple not also able to make this commitment?
Both the same-sex couple and the man with testicular azoospermia and his wife have reasons 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 responsible for their children’s welfare. 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 it would do so more clearly than present law, since it would not treat couples without children as though they had them. (By the way, 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.)
Girgis has also ignored this proposal, an omission that reduces his section on sociology 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 getting 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. (I don’t know what it would mean to see one’s body as “an instrument for producing [one’s own] desirable feelings.” “A telescope is an instrument for seeing distant objects” — this I understand. “That person’s body is an instrument for producing my desirable feelings” — this I understand and deplore.)
– Mr. Girgis is a Ph.D. candidate in philosophy at Princeton University and a 2008 Rhodes Scholar. He can be reached at [email protected] Portions of this essay are adapted from his article “What Is Marriage?” (co-authored with Robert P. George and Ryan T. Anderson), which appeared in the Winter 2011 issue of the Harvard Journal of Law and Public Policy and is available at http://tinyurl.com/realmarriage.