Gender & Sexuality Law Blog

Miles Pope, a 3L at Columbia Law School with an interest in legal theory and philosophy of law, comments on Princeton Political Theorist Robert P. George’s “The Wisdom of Upholding Tradition,” published in last week’s Wall Street Journal:

Start with the assumption that when two gay people get married they do so in order to commit to each other for life and for the purpose of raising a family. (I will refer to this as the assumption that “gay people are serious about marriage.”)  On the assumption that gay people are serious about marriage, the only thing that distinguishes a gay married couple from a (serious) straight married couple is that, unlike the serious straight married couple, the gay couple cannot conceive children by having sex with each other.

Princeton Political Theorist Robert P. George and his co-authors, who published “The Wisdom of Upholding Tradition” in the Thanksgiving Day Wall Street Journal, want you to think they believe that this difference justifies excluding gay couples from marriage.  Hence, they describe their argument as predicated on the claim that marriage should be, and historically has been, reserved for people who can enter “a bodily union made possible by sexual-reproductive complementarity” or who can be “united . . . holistically . . . in acts of conjugal love.”  By so characterizing their argument, George et al. can claim that it is not a moral failing of gay people that justifies excluding them from marriage (in their oracular turn of phrase: “compassion for those attracted to the same sex doesn’t require redefining marriage”), but, rather, that the exclusion is justified by a physical difference between gay and straight couples.

Given how untenable the view that gay couples cannot be serious about marriage has become, this move away from the argument that gay couples are morally and psychologically unfit for marriage, toward the argument that they are biologically and metaphysically incapable of it, is politically necessary to inoculate “The Wisdom of Upholding Tradition” against the charge that it is ignorant and bigoted.  Do not be deceived by the diversion.  George et al.’s actual argument against same-sex marriage – that is: the part of their article where they move from metaphysical dissimulation to the identification of real harms that might flow from allowing gay couples to get married – is nothing more than a rejection of the view that gay people are serious about marriage:

“[I]f two men can marry, or two women, then what sets marriage apart from other bonds must be emotional intensity or priority. But nothing about emotional union requires that it be permanent.  Or limited to two.  Or sexual, much less sexually exclusive.  Or inherently oriented to family life and shaped by its demands.”

Only if you reject that gay people are serious about marriage can you conclude that allowing gay couples to get married means that marriage will be about “emotional intensity” as opposed to a commitment for life and for the purpose of raising a family – because only if gay people are not serious about marriage would their marriages merely be about expressing emotional intensity.  And it is the erosion of these marital norms that George et al. see as the main threat posed by allowing gay couples to marry.  Gay marriage will entrench the dissolution of marriage precipitated by “harmful rises in extramarital sex and nonmarital childbearing, pornography and easy divorce,” and it will cause family breakdown, which will “thrust . . . the state into roles for which it is ill-suited: provider and discipliner to the orphaned and neglected, and arbiter of custody and paternity disputes.”  It will only do all of this, of course, if gay couples are not serious about marriage.

So that’s where George et al. stand, and as a result their work is not done.  They owe us an explanation: why do they think that gay people are not serious about marriage?  Do they think gay couples are incapable of the commitment that marriage requires (too bound up in “emotional intensities” to be trusted with an exclusive relationship for a serious purpose)?  Do they think that gay couples cannot successfully raise a family?  Or do they think gay people are secretly hostile toward marriage – that, as they insinuate but never explicitly avow, gay people “welcome” that allowing gay couples to marry will “almost certainly weaken the institution of marriage?”

These are nasty, bigoted thoughts, completely out-of-touch with how gay people really are.  But this should come as no surprise because, notwithstanding its patina of detached scholasticism, George et al.’s argument against gay marriage is itself nasty, bigoted and out-of-touch.