As an extension of their 2010 Harvard Law Review article, Girgis, George, and Anderson (G&G&A, hereafter) articulate the most careful, secularly grounded argument against the view that the members of the same-sex can be married. This is because their argument rests on a a metaphysical claim: marriage is constituted by the permanent and exclusive union of only two complementary members of the natural kinds male and female for the purpose of sharing a domestic life that is conducive to the rearing of children. In this view, which they call the “conjugal view” of marriage, procreation is not necessary for the marriage to exist; but since the marital act is oriented towards reproduction, and any resulting children find their natural habitat and flourish best in families of which their biological parents are stable parts, the state has vested interest in protecting it. The fact that the unions of two men or two women inherently lack this biological fecundity is sufficient to disqualify them as marriages. If we were to legalize same-sex marriage, we would embrace what the authors call the “revisionist view” or marriage: the union of (two?) adults who commit to loving and caring for each other as well as sharing the burdens and benefits of domestic life; the requirements of permanence and exclusivity depend on the mutual consent of the partners.
G&G&A begin their book with a story about a pair of wealthy socialites from New York who met, fell in love, and got married. They were a man and a woman who each felt they had met their soul mate. But in order to tie the knot, they had to divorce their spouses! This, says G&G&A is the outcome of the revisionist view of marriage, and it is a blight on an institution that historically has been understood as a conjugal relation. Even in ancient Greek culture when same-sex relationships were acceptable, the union of one man and one woman for life was thought to be the norm. But why? According to G&G&A, it is because the act of coitus was the only sex act that was truly marital; in it male and female become one reproductive unit oriented towards the creation of children. Again, since same-sex couples cannot engage in coitus, they cannot exemplify the type of bodily union necessary for marriage.
There are other features of the book that go into the details of religious liberty, the libertarian view of marriage, and the benefits enjoyed by children of two-parent families constituted by their biological parents. All of these are worth reading and deserve a wide hearing for anyone interested in the marriage debate, but I forgo reviewing these aspects to take issue with the central premise of the argument: there is a true marital union only if two adults consummate their union in coitus. To this I now turn.
Throughout the book, the authors did not address a counterexample I had in mind until one of the very last footnotes: an unconsummated marriage (think of a man and a woman, neither of which have genitals due to genetics who marry). In addressing the counterexample, they remark that a conditional attitude towards coitus is sufficient for the bond: if things were normal for the couple, they would consummate their marriage (apparently, Aquinas made this sort of move so as to explain Joseph’s marriage to the virgin Mary). In their words, “forming marital consent requires (and thus expecting) to consummate. In that case, marital consent involves at least a conditional promise to consummate–say, upon a reasonable request.” Thus the marriage of, say a paraplegic couple, is valid. Hence, a counterfactual promise about what a couple would do if things were different is sufficient to seal their union. But if this sort of intentional attitude is all that matters, then the act of coitus isn’t essential for marriage! Not only that, but it seems a same-sex couple could affirm the same sort of conditional and get married–after all, one of them may desire a sex change, but doesn’t have the means to do it. While this, no doubt, would be exceptional, it seems to satisfy the conjugal view of marriage.
Nor is it clear to me is how coitus “completes” a marriage on their view. Does it bring a marriage fully into existence (along with other necessary conditions)? Or does it fulfill the function of a marriage that already exists? On one hand, it seems G&G&A are intending the former view, because they argue that since same-sex couples can’t unite in coitus, they can’t be married, and so the traditional view of marriage has to be revised if same-sex couples are to marry. On the other hand, they draw on the latter view to explain the situation of the paraplegic couple.
Don’t get me wrong; this is a well-written and interesting book; perhaps the best of its kind for the case of traditional marriage out there. But these natural law arguments seem to fall a bit flat when you start to get specific about cases.