Sunday, December 30, 2012

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.


Anonymous said...

Except that marriage has a social function like the police, schools or hospitals. The function of marriage is to prevent the problems that result from the production of children. Just as the state is allowed to determine who gets to enter the institution of a police department, it gets to determine who can justifiably enter the institution of marriage.

bjdubbs said...

Can we really discuss marriage without discussing children? Marriage is a machine for raising children, and that requires a mother and a father. If you don't believe me, ask a child. They know. So this whole argument is conducted on a really superficial level if no mention is made of CHILDREN.

Larry Arnhart said...

Actually, the primary argument of Girgis, Anderson, & George is that "real marriage" is naturally oriented to procreation and parental care. Gay marriage is not "real marriage" because it lacks that natural orientation. That children are generally better off when they reared jointly by a mother and a father is crucial for them.

I agree with all of that. But I also believe that homosexual bonding and parental care could be explained as an approximation of the "real marriage" of heterosexuals.

bjdubbs said...

Fine, bond all day long, to each his own. But society has an obligation to children to encourage mother-father families. And that necessarily implicates the law, and the state. Tax laws, family courts, inheritance laws, etc etc. So it's superficial to say that we can get the government and law out of the family, because we can't get the family out of the law. The family is an institution, not a private contract. Redefining that institution WILL weaken it, and that is not to the benefit of children, who have the biggest stake in the future of the family.

In the words of Elton John, erstwhile opponent of gay marriage, about his young son: "‘It’s going to be heartbreaking for him to grow up and realise he hasn’t got a mummy."

Elton John is old enough and smart enough to recognize that (not that it stopped him). I'll bet most of the gay marriage advocates will never be that honest.

bjdubbs said...

Gawd, it's even worse than I imagined. John and his partner don't know which is the father, so the son will be raised without knowing who his father is (he might know who hiis mother is, not that it will matter). The massive narcissism it takes to pull something like this off . . . really, where are the adults?

TeeJaw said...

It’s certainly possible to take government out of the formation of marriage but not out of the termination of marriage. Where there is property to fight over and custody of children to be determined, government will remain heavily involved. That must be about 95% of marriage, at least in terms of life changing consequences to all involved.

I wonder if the proponents of gay marriage have given this much thought. I’ve witnessed the breakup of some homosexual relationships that were not marriages, and I can testify that it wasn’t pretty. With heavy government involvement the stakes will be higher, and the break up is likely to be nastier yet.

goliah said...

"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."

Underlying this statement is the foundational 'weakness' of marriage as constituted and rooted in biology. The fact that marriage cannot endure on it's own merit and requires the underpinning by the state.

Yet the biological paradigm of marriage now may be coming to an end with the advent of a new spiritual union that overthrows the corrupted, material natural law bond. And reinvigorates the primary moral status of union between one man and one woman.

More info at

Anonymous said...

Your comments condoning gay marriage look like a failure of nerve by Darwinians in the face of political correctness. If anyone should understand the "naturalness" of male-female unions for procreation and child rearing and role models, it should be the Darwinians. Yet, you crumble in face of progressive liberalism - where is your moral courage? Or, you should admit that Darwinianism is not a full explanation of human morality - which combines natural inclinations and cultural norms. Robert George, et al are simply recognizing that culture and state coercion can distort nature for a while, until nature reasserts herself - e.g., birth rates will decline in a culture gay marriage because sex will seem disconnected to procreation, until pressures for procreation return. Let's be more honest that Darwinianism is a partial truth about human nature, but at least acknowledge that partial truth.

Larry Arnhart said...

What's your reasoning here?

As long as no marriage licenses are issued to homosexual couples, married heterosexual couples will express their natural desires for procreation and child care. But as soon as marriage licenses are issued to homosexual couples, married heterosexual couples will lose their natural desires for procreation and child care.

Is that the reasoning? If so, I don't find it plausible.

Do you really believe that the existence of the natural desires for procreation and child care depend on whether or not homosexual couples can get marriage licenses?

bjdubbs said...

Monogamy is an essential element of marriage, and it is not natural, as any Darwinian would know. Does anyone think that gays, on the whole, are going to be monogamous? Even the loudest proponents of gay marriage, Andrew Sullivan and Dan Savage, have criticized monogamy as unnatural. A survey of gay men showed that even of men who planned to get married, only about half planned to be monogamous. If gay men have no plans to be monogamous - and "lesbian bed death" is even worse - then in what sense is this marriage? So yes, changing the definition does have the potential to weaken the institution, in part by severing the tie between monogamy and marriage. In fact, I suspect that if part of the plan.