The Brass Tack

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Posts Tagged ‘Robert George’

Penguin impersonators, or why you’ll never convince a gay marriage opponent

Posted by srconstantin on August 4, 2009

Contra Brad DeLong, I do think it’s uncontroversial that Robert George is very, very smart. He’s also wrong. But he makes intellectually honest and consistent arguments and knows far more philosophy than I do. (That’s what makes him satisfying to dispute; there’s actually an edifice to try to knock down.)

Here he is on gay marriage:

The definition of marriage was not at stake in Loving. Everyone agreed that interracial marriages were marriages. Racists just wanted to ban them as part of the evil regime of white supremacy that the equal protection clause was designed to destroy.

Opponents of racist laws in Loving did not question the idea, deeply embodied in our law and its shaping philosophical tradition, of marriage as a union that takes its distinctive character from being founded, unlike other friendships, on bodily unity of the kind that sometimes generates new life.

What George is saying here, and what becomes clear if you read more of his essays on natural law and marriage, is very strange and interesting.

It is physically possible, though not legal, to steal.
It is physically impossible to turn yourself into a penguin.

George thinks that interracial marriages have always been possible, though they were once illegal. The Lovings were legally prohibited from doing something they had the capacity to do, namely, to marry. But George thinks that two people of the same sex do not have the capacity to marry — that such a marriage is a physical impossibility. Whatever two men or two women do together, it isn’t marriage. Prohibiting gay marriage is then like prohibiting people from falsely claiming that they are penguins protected by the Endangered Species Act.

(A straight penguin, bien sur.)

(A straight penguin, bien sur.)

Liberals (like myself) tend to frame the gay marriage debate in terms of civil rights. Why shouldn’t gays have the same right to marry as anyone else? Denying them marriage denies them equal protection under the law.

But that only works if we agree on what “to marry” means. To me it means “to go to City Hall, get a marriage certificate, and receive the legal benefits of marriage.” It also means to enter a social institution with connotations of commitment, love, and sometimes childrearing. That is what the same-sex citizens of California are prohibited from doing. But to George and other natural lawyers, I think, “to marry” means something else; it means, fundamentally, to pledge to have vaginal intercourse with your spouse and only with your spouse, for the rest of your life, and to attempt to bear children. Marriage has a sort of independent, immutable reality, under this way of thinking, which its legal status only clothes and reinforces. For George, that reality is highly biological — he spends a lot of time talking about sperm and egg and physical union, the idea being that biology itself defines what kinds of relationships are “natural.” That’s why you’ll often hear conservatives say “The government can’t define marriage.”

But marriage changes, and should. As was pointed out to me in a recent conversation, in the Middle Ages there was no marriage without consummation and no consummation without marriage. In state marriages witnesses actually stood around the marriage bed (with curtains closed) waiting for proof of the deed. And if a woman spent the night in the same house “unchaperoned” with a man, that was grounds for requiring her to marry him. George, writing about “the norms—annulability for non-consummation, the pledge of permanence, monogamy, sexual exclusivity—that shape marriage as we know it” is writing in this tradition. Of course, the roots of this tradition lie in preventing the woman from bearing another man’s child. This is marriage as social control of women. It is not why committed couples, in general, marry today. It is not what marriage is today.

Matt Zeitlin gets at this in his post:

This seems like the insurmountable challenge for opponents of gay marriage. The institution has already changed into one that is no longer based around procreation. Also, we are approaching a societal consensus that discriminating against gay people just because of their sexuality is bigoted and wrong. Lots of gay people want to get married and abide by the standards, rules, regulations and expectations of married people. So, it’s going to take a lot more than a legalistic, nostalgic definition of marriage combined with a slippery slope argument about polyamory to deny a strong claim from fairness and equality about why a group of people should enjoy some rather basic rights.

What people don’t often realize, though, is that the difference between Robert George and people like Matt and me lies deeper than our differing views on marriage or sexuality or gay rights. It’s about the relationship between social institutions, social value, and government. Notice that Matt’s writing about the right to marry (implicitly, the “City Hall” definition of “to marry.”) For someone working in a roughly liberal framework, social institutions can change, social value comes from institutions that promote citizens’ welfare, and government can lend support to valuable social institutions, and must provide equal rights to such support.

When Robert George talks about social value, though, or the intrinsic value of marriage, he means something different than citizens’ welfare. He often writes of intrinsic human goods, an idea that comes from Aquinas; intrinsic goods are those that “perfect human nature.” Marriage (the heterosexual, monogamous kind) is an intrinsic good. Gay relationships are not. They do not have intrinsic value, no matter how much people may value them. Social institutions are good precisely if they promote intrinsic goods; government’s role is to support intrinsic goods. Matt is right — George isn’t concerned with the effect of marriage policy on gay citizens’ welfare. He actually, as I understand, isn’t all that concerned with anybody’s welfare, in the utilitarian sense of people getting the things they themselves want and value — he’s interested in intrinsic goods, those things which he asserts ought to be valued. It’s a strange philosophy to many, and in a way a pre-democratic philosophy; instead of being founded to establish justice and promote the general welfare, government is intended to promote a set of immutable “goods,” which are not up for debate.

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