Over at Amusing Nonsense, Sirius Bizinus is periodically providing his analysis of Hodges v. Obergefell, which is in front the Supreme Court. He has graciously allowed me to comment on his posts here. So, when time permits, I’ll try to critique his arguments. In this case, it pertains to procreation and marriage.
First of all, Sirius does an ok job summarizing the “bigots” position in regard to procreation and nuptials:
The idea is that marriage has been defined as between men and women for centuries is because this basic pairing is how children are created. Because it was the only way of creating a family in antiquity, governments decided to enshrine the relationship with marriage. Government has an interest in promoting procreation and stable environments for children because that’s the only way our society can be perpetuated.
I would clarify that society, not government, has enshrined the relationship due to its unique potential of producing children. Not every civilization has had a sophisticated legal bureaucracy to formally acknowledge marriage, yet the institution, as fundamentally a heterosexual union, has been practically a universal idea up until about 15 years ago. It’s this life-giving, species-perpetuating power, the sustaining of the state via its future citizens, that justifies government’s involvement here, as it is clear that we do not want government to regulate every form of human association.
Where I believe Sirius’ bias starts to show is in phrases such as “only way of creating a family in antiquity” and “that’s the only way our society can be perpetuated.” Here, it’s implied that this line of thinking made sense in the remote past when there wasn’t large-scale adoption and artificial reproductive processes like surrogacy or in vitro fertilization. This rendering is incorrect. It’s not that we hold there is one way to promulgate society; rather, what’s known as the “traditional family” is the best way. If government is to have any sort role in the creation and socialization of its future citizens, it ought to promote the ideal. We are aware there are other familial arrangements and there are conceivably other ways for society to sustain itself: The world state in Aldous Huxley’s Brave New World comes to mind. Yet, Huxley’s brilliance was to realize the abandonment of procreative sex and blood ties was pivotal in a society that didn’t have individual autonomy and prosperity. In brief, conservatives believe the biological family, as a mediating institution against the reach of the state, furthers the causes of freedom, wealth and well-being. While diminishing it — e.g. abortion, feminism’s belittling of motherhood and advocacy to normalize feminine promiscuity, the trivialization of sex and the formal relegation of mothers and fathers as optional via a SCOTUS decision in Obergefell v. Hodges — works to undermine “life, liberty and the pursuit of happiness.”
Forgive my pedantry here, but for Sirius to reasonably declare that the procreation argument against same-sex marriage is “untenable,” he must at first understand it and the supporting position. Although he is far from the only person to mischaracterize in this regard, as comments from federal judges illustrate, the remainder of his post is predicated on strawmen.
For instance, he writes,
This idea takes the emotional relationship aspects of marriage and throws them out the window, along with justifications for some of the other ancillary benefits of marriage (like tax breaks). We’re looking at marriage solely for the purpose of creating and maintaining a family here.
But understanding marriage to be essentially defined as a procreative union does not exclude love and emotion from the equation. This simply does not follow. It is entirely possible and happens often for marriage to be both about love and procreation without leaving out the “ancillary benefits of marriage.” How so?
Enter the wonderful world of metaphysics and being philosophers in it by making distinctions. Sirius confuses essential properties with accidental properties as well as natural function/purpose with artificial or user-imposed function/purpose.
Essential property: A property an object, person or thing must have to be what it is.
Accidental property: A property an object, person or thing can have without ceasing to be what it is.
For example, a bachelor must have the property of unmarriedness, for lack of a readily apparent term, to be a bachelor. However, a bachelor can also have the property of being Swedish, French or Cambodian and still be a bachelor.
Natural function/purpose: The goal or directed end an object or thing has by virtue of being what it is. E.g., a squirrel is naturally predisposed to gathering nuts and acorns and burying them to survive the winter because of the fact it is a squirrel. It’s important to note, natural here does not refer to the zoological animal kingdom, as in appearing or existing in habitats found within the likes of African savannah, Australia’s Outback or Himalayan steppe. Rather, it pertains to a thing’s nature and how function or purpose is imbued within that nature.
User-imposed/function or purpose: The goal or directed end an object or thing has by the imposition of some sort of artificer. E.g., the function or end of the twig that’s positioned into the anthill is that of the chimpanzee wielding it for the purpose of procuring ants to eat, but such a purpose is not immanent in the twig itself.
Now, let’s return to the issue at hand, marriage. Sirius seems to think our claims about marriage and procreation entail a user-imposed function. That, as a social construct, the institution is man-made and therefore has a man-made, instrumental end of procreation. But not every marriage produces children, whether by infertility, age, choice or plain dumb luck, yet these couples are still allowed to and are considered married. Likewise, people marry each other because they are in love and not solely to have kids. Therefore, this is a silly excuse to prevent gay couples from saying “I do”.
That’s pretty sound reasoning except that those who raise the procreation objection to same-sex marriage don’t subscribe to the above description. Marriage is not a mere instrumental means to the end of procreation as extrinsically imposed by society. Rather, marriage is essentially related to procreation as intrinsically mandated by its natural foundation in human sexual complementarity, which is what society recognizes in matrimony. Marriage is procreative by its own nature not social fiat. According to us, being procreative, which means being predisposed toward the biological end of procreation and reproduction, is an essential property of marriage in order for it to be marriage. It’s fundamental to what it is, imbued in its essence and thereby essential. It’s not an accidental property like being in love or having the legal benefits that are recent Western additions to the institution. There are, unfortunately, many loveless marriages out there today, as well as the proverbial arranged marriage that were common in the past and still exist today in many parts of the world. Yet, these cases don’t cease being marriages because the individuals involved are not in the emotional throes of love. In other words, the legal standing and amorous feelings are both historically and metaphysically accidental properties of marriage.
What about those old couples that are infertile by nature? They’re still married. As Sirius puts it: “Currently there are no requirements that parties to a marriage must be able to procreate in order to get married” and “What this means, though, is that infertile couples couldn’t get married. Additionally, if there is some tragedy where one person has to become sterile, that could be grounds for dissolving the union.” Summarily, this is no reason to exclude gay couples who are also infertile by nature.
However, once again, Sirius is mistaken and conflates legal requirements with metaphysical ones. The infertility of an old heterosexual couple is not the same sort of infertility of a homosexual couple. Marriage, as a union of persons, is not essentially grounded in singular characteristics of one of the persons involved in it. Otherwise, it’s a fallacy known as pars pro toto, a composition error in reasoning that erroneously infers the parts for the whole. The union is what’s important and not whether one of the people taking part in it is a good person or infertile. This is relevant in that the the old nonprocreative heterosexual couples, whose unions are recognized, are infertile in the likely sense that the singular females members have undergone menopause, while homosexual couples often involve two potent males and two fertile females. So, the opposite-sex couple that can’t procreate is most likely because one of parties involved is infertile, but the same-sex couple that can’t procreate is always because the nature of the relationship makes procreation a default nonstarter.
Why does this distinction matter? It’s not only that marriage refers to a union of person and is not defined by one of the singular members within it. Rather, bear in mind that we are comparing two categories of comprehensive unions. The issue surrounding same-sex marriage ultimately comes down to whether same-sex couples are meaningfully no different than opposite-sex couples. Those for “marriage equality” assert yea — they are the same — while the “traditional marriage” side says nay — they are different. Here though, we have a disparity that philosophically one can drive a mack truck through. In other words, same-sex relationships are essentially and categorically infertile; opposite-sex relationships are essentially fertile even if procreation, gestation, pregnancy and birth doesn’t occur and children don’t always obtain. The relationship is still apt for procreation and is naturally fulfilled when it happens. The elderly pair is just the exception to a very fecund rule; Adam and Steve and Lilith and Eve, though not exceptions, are nevertheless irrevocably bound to it.
Hardly arbitrary, it’s not the law that excludes same-sex couples from marriage, but instead its the constituent individuals’ freely-enacted choice in partner and the essence of such companionship that precludes them from the institution. That’s no more unfair than a nonprofit charity receiving tax breaks instead of a for-profit corporation. Though similar, as they are organizations of people, they are inherently separate types of entities. Likewise, although a same-sex relationship approximates an opposite-sex relationship in some respects, they too are inherently distinct in the same manner a triangle, which although comes close to having four sides, just simply in no possible world can be a square.
Moreover, we proponents of this conjugal view of marriage view the institution comprehensively, and as such, realize the coital act, although critical to marriage, is not everything that marriage is. So, yes, love is still very much in play and helps make sense of and enhances our understanding of marriage instead of diminishing it. To show this is not just subject to me and a bunch of uneducated bigots, I’ll let esteemed Princeton legal scholar Robert P. George describe our position. Writing for The Public Discourse, he summarizes:
Historically, and, in my view, rightly, marriage has been understood as the distinctive and distinctively valuable form of human association that is oriented to procreation and would naturally be fulfilled by the spouses’ having and rearing children together. It is a comprehensive (and thus conjugal) bond inasmuch as it unites persons not merely at the level of hearts and minds, but in the bodily dimension of their being as well. In this way, it differs from ordinary friendships and other non-marital forms of companionship. And it requires commitments of exclusivity (“forsaking all others”) and permanence (“till death do us part”).
Bodily (“one-flesh”) union is possible in virtue of the sexual-reproductive complementarity of male and female. It does not consist, and has never been regarded as consisting, merely in the juxtaposition of flesh. It consists, rather, in the capacity to combine to form a reproductive unit. Thus, marriages are consummated (i.e., completed) by coitus; and marriage is inherently, and not merely incidentally, a sexual bond (and not just an emotional one). Sexual-reproductive union, as an integral aspect of the conjugal relationship, is—like the relationship itself in its totality—intrinsically and not merely instrumentally valuable. Although the marital bond is inherently oriented to procreation, it is not the case that procreation is an extrinsic end to which marriage or the marital embrace is valuable merely as a means. Rather, marriage is indeed a “one-flesh union.” And this explains why, in virtually all cultures throughout history, (a) marriage has been understood as a child-centered institution, yet (b) infertility has not been regarded as an impediment to marrying or a nullifier of existing marriages.
To be honest, George articulates a much stronger version of how comprehensive marriage is than I do above. I make a point to identify and separate procreation and love — one as essential and other as accidental in how they relate to marriage — while George better synthesizes them together. George completely follows through on the natural law basis of marriage, inserting value while I just describe what is the case. These differences, however, are more rhetorical than ideological. Furthermore, George being George and I being a nobody influenced by him means his iteration is superior. In addition to his eloquent prose, it is more palatable to the average American, who strongly equates love with marriage, and also more extensive because he and his colleagues go on to show that this conjugal account also demonstrates why we have marital norms like monogamy and permanence that the “revisionist” view — marriage is merely a social contract centered around intense emotional attachment — simply cannot provide.
Finally, I suppose one could read all these abstract distinctions, chalk it up as mere semantic word games and object as to what does philosophy and metaphysics have to do with the legal case for and against same-sex marriage. Well, in a word, everything. Metaphysics, broadly speaking, is the study of what is the case. The social justice crusaders who wield the slogan of “marriage equality” are making a claim that presupposes certain metaphysical assumptions for legal application. Namely, same-sex and opposite sex couples are virtually the same and should be treated accordingly via 14th Amendment-inspired “equality under the law” considerations. Therefore, it’s only rational to examine these underlying assumptions and our understanding of what is a marriage. After all, law operates with certain presumptions about what is the case, and notions of fairness and justice can only be meted out from a basis found in real states of affairs.
In my view and experience, advocates for same-sex marriage utterly avoid the nitty-gritty here. Whether this is just a mere act of hasty misunderstanding and overlooking one’s biases, agenda-driven subterfuge or a combination of both, as I suspect, pausing to expose its position’s supposedly sound metaphysical assumptions to greater public scrutiny is something Human Rights Campaign, GLAAD and the horde of courted social justice fodder seemingly don’t have enough interest in to halt their inexorable romp through our judicial system. Instead, they advance convoluted legal arguments that sneak in controversial theses like a same-sex relationship is applicable to marriage, and it’s people like George who question these implicit assertions.
The argument from procreation is fundamentally a metaphysical argument not a legal one. Therefore, when those like Sirius, who has a background in law, responds to it from a purely legal framework that just reasserts the same contentious claims that are being contested, as he does throughout his commentary, it amounts to just talking past, or more accurately, over what is being argued, as questions of law and issues of legality are ultimately rooted in the primacy of philosophy and its metaphysical considerations. For instance and more specifically, “Remember, the whole point of this idea is to show that the state has an interest in how new citizens come about to the exclusion of other marriages” is a prime example. If you start from the premiss that a same-sex relationship is already a marriage and marriage is just an emotional union, as Sirius implies here, his reasoning is insurmountable, but this is heavily begging the question in his favor. It is whether or not that it is a marriage that the procreation argument, in large part, challenges.
George and company (Ryan T. Anderson and Sherif Girgis) actually do more than merely argue from a procreative definition, as people do have varying conceptions of marriage. As noted earlier, they compare and contrast their conjugal view with the “revisionist” one that belies the push for same-sex marriage. They basically conclude that the former can account for other marital norms like monogamy and permanence. The latter, on the contrary, is not only insufficient in this regard but undermines these norms and ultimately entails and engenders the abandonment of the institution. The social repercussions of such a collapse are very much among the state’s concerns if SCOTUS carves in stone a right to same-sex marriage: rising out-of-wedlock births rates, an increase in poverty and greater numbers of children growing up without one or more of their biological parents. All these consequences are foreseeable and plausible if the court formally recognizes marriage as merely an emotional, adult-centric union. Moreover, making it far less probable that these three are outliers who boast an “untenable” argument motivated by animus against same-sex couples, more than 100 academics from a variety of disciplines agree with them.
For whatever it’s worth, so do I,