Girgis, Anderson, & George on "What Is Marriage?"--The Book

Two years ago, Sherif Girgis, Ryan Anderson, and Robert George published an article in the Harvard Journal of Law and Public Policy on "What Is Marriage?"  This article was widely debated because it was one of the most rigorous arguments for the claim that only heterosexual marriage of one man and one woman is "real marriage," and therefore that legalizing homosexual marriage would show a mistaken understanding of marriage. 

Now, Girgis, Anderson, and George have published an expanded version of their article as a short book.  Information about the book can be found at their website.  Now that the Supreme Court of the United States has taken up the issue of whether homosexual marriage is a constitutional right, we can anticipate that this book will have some influence on the Court's decision.

In response to the original article, I wrote a series of posts indicating that their reasoning about "real marriage" is essentially an argument rooted in a biological conception of natural law that evolutionary science would support.  I generally agree with this understanding of marriage as rooted in evolved human nature.

And yet I also indicated my disagreement with their suggestion that if homosexual marriage is legalized, this will destroy heterosexual marriage.  To me, this contradicts their natural law argument.  If "real marriage" is really natural, and not an artificial construction of law, then shouldn't we expect that natural inclination to marriage to express itself regardless of changing legal definitions of marriage?  And if it is natural, shouldn't we expect that the natural and voluntary associations of civil society will continue to support that natural institution of marriage, even if the legal definition of marriage has changed?

I see nothing in this book that would change my mind about this incoherence in their argument. 

On the one hand, they say that "redefining civil marriage would change its meaning for everyone," and they endorse a remark by Joseph Raz that "if these changes take root in our culture, then the familiar marriage relations will disappear" (54-55).  This suggests that marriage is so much a legal construction that changing the legal definition of marriage could bring about the complete disappearance of heterosexual marriage.  But if real marriage is natural, why does it depend completely on governmental law?

On the other hand, they write:

"marriage is not a legal construct with totally malleable contours--it is not 'just a contract.'  Instead, some sexual relationships are instances of a distinctive kind of bond that has its own value and structure, which the state did not invent and has no power to redefine. . . . marriages are, like the relationship between parents and their children or between the parties to an ordinary promise, moral realities that create moral privileges and obligations between people with or without legal enforcement." (80)
 

This indicates that marriage does not depend totally on legal enforcement, implying that even if the legal definition of marriage changes, "real marriage" will not disappear.

I agree, of course, that the natural inclination to marriage needs to be nurtured by social institutions--families, churches, and other social groups.  But this does not require a governmental system of marriage licensing.  In fact, as I pointed out in my previous posts, throughout most of human history, marriages were defined by informal norms shaped by families and other social institutions without any need for legal licensing.  But if Girgis, Anderson, and George are correct, this is impossible, because "real marriage" cannot survive without governmental licensing.

Occasionally, however, they concede that most of the work of "upholding marriage culture" belongs to "civil associations," and the state provides only a "supporting hand" (39-40).  But, again, much of what they say implies that any change in the state's definition of marriage could bring the disappearance of traditional marriage.

I am attracted to the idea of privatizing marriage just as we have privatized religion, so that marriage, just like religion, would be left up to the spontaneous orders of civil society.  If marriage were privatized, and thus there would be no necessity to get a marriage license from the state, then the natural institution of heterosexual marriage would prevail as satisfying the natural desires of most human beings.  But this would also allow some human beings to enter into homosexual marriages or other forms of marital union.  According to Girgis, Anderson, and George, this is impossible, because heterosexual marriage cannot endure if it is not legally licensed by the state as the only form of marriage.

My previous posts on this can be found  here, here, here., here., and here.