Squashed

A blog of politics, law, religion, and the tricky spots where they collide.

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There is (still) no secular case against gay marriage

Elijah Lain noted that I have written before on the weak efforts to construct a secular case against gay marriage. He asked for my thoughts on the article, What is Marriage? by Sherif Girgis, Robert P. George, and Ryan T. Anderson. Harvard Journal of Law and Public Policy, Vol. 34, No. 1, pp. 245-287, Winter 2010. He mentioned that this article was cited as the best case against gay marriage. Judging by the pedigree of the authors and the publishing journal, it is, without doubt, the most prestigious. But … it’s still not a very good argument.1

As a guy whose primary qualification consists of having opinions and a blog, I can’t really speak on equal footing with such illustrious academics. But I have one thing the authors of the article don’t have. I have this dog:

Caboo and I on the front stoop

Caboo is the platonic ideal of dogs. I will discuss why this is relevant later. First, I want to talk about the arguments raised in the article.

The article strives to answer the question, “What is marriage?”

It’s a curious question. The legal answer is pretty straightforward. Marriage is whatever the law says it is. A historical answer brings a variety of answers—many of which do not match the authors’ vision of the conjugal marriage. Neither inquiry is particularly interesting. Instead, the article tries to pinpoint an essential definition of marriage—as if the question had a single and static answer.

The authors make this mistake a few times. They assume that anything that is not essentially, objectively, and universally true is wholly malleable and arbitrary. They miss the reality that between solids and gasses you have liquids. Water is malleable. Its shape depends on what contains it. Nevertheless, you can float a boat on it. Social constructs work the same way. They may change from one society to the next, but they have enough substance to be real and useful. We can’t change them at a whim.

The other problem with the article is that it simply wraps fancy academic language around the same tired claim that marriages are only marriages if one person has a penis, one has a vagina, and they can do it and try to make babies. The authors count the marriages of infertile couples on the grounds that they can try (in vain) to make babies. But they don’t seem to permit marriages that aren’t attempting to make babies. So … apparently if one partner is impotent marrigae is impossible. Until they invented viagra, the marriage pill. (Presumably the pills that prevent babies are anti-marriage pills.)

It doesn’t matter how many times you say “coitus” or “generative act” or “organic bodily union.” Makin’ babies the old-fashioned way is not essential to marriage any more than marriage is essential to making babies. The authors chase their principle of sharing everything in marriage (“comprehensive union of spouses”) to an ultimate conclusion that requires married partners to have vaginal sex with no birth control in order to be truly married.

In their haste to reach the conclusion that they presumably set out to reach, they ignore any of a thousand other things that certain couples may or may not share who would still, presumably, remain “married” in the eyes of the authors. Can people be married without sharing a bank account? Without sharing a bedroom? Without sharing a wardrobe? The same plate? The same toothbrush? If marriage is a binary thing, how many boxes do you have to check for it to count? If you just met yesterday and totally plan to be together forever and have a bunch of unprotected sex, are you more married than a couple that has shared their lives for ten years but consistently used birth control because they both carry a recessive gene that could lead to a serious and horrific illness for their children?

The authors have, to their credit, come up with a functional definition of marriage. But it’s unduly restrictive. It doesn’t match our common conception of what constitutes a marriage. While we would all recognize what they describe as marriage, almost all of us would recognize quite a few other things as marriage too.

That’s where we get back to Caboo.

Caboo on his porch

He’s an Akita. He has four long legs and pointy ears. He scrupulously keeps his white feet clean. He is exceptionally, though not fawningly, loyal. He weighs about seventy-five pounds and has a long, pink tongue. He is most comfortable when it is twenty to thirty degrees. When it drops below zero, he puts his tail over his nose.

So far, we all agree that I have an awesome dog, right? But take this where the authors of the article in question go. Akitas are the only kind of dog. If your pet does not share the characteristics of my Akita, your pet is not a dog. If the county dog warden starts recognizing any breed other than Akitas as a dog, the species will weaken, the word “dog” will become meaningless, and you will impinge on my freedom to own a dog. Do you see the gray hairs around Caboo’s nose? He gets a new one every time somebody calls a Pomeranian a dog. It’s like kicking a puppy. Unless you hate dogs, stop immediatly.

See the problem? Sherif Girgis, Robert P. George, and Ryan T. Anderson apparently don’t.


  1. The article tries to build a secular case against gay marriage. There have also been efforts to build a religious case. I find those similarly unpersuasive

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    Boom
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