Comments on: “Traditional” marriage or a break with tradition? http://blogs.ssrc.org/tif/2008/06/02/traditional-marriage-or-a-break-with-tradition/ Secularism, religion, and the public sphere Sat, 21 Nov 2009 03:44:04 -0600 http://wordpress.org/?v=2.8.4 hourly 1 By: Tom Spencer http://blogs.ssrc.org/tif/2008/06/02/traditional-marriage-or-a-break-with-tradition/comment-page-1/#comment-2828 Tom Spencer Fri, 20 Jun 2008 19:31:54 +0000 http://blogs.ssrc.org/tif/?p=251#comment-2828 I am concerned about what appears to be an anachronistic teleology in this argument. The author claims that the shift to monogamy signals an abandonment of the reproductive criterion of marriage in favor of a less exclusive criterion of intimacy. This feels, however, like a retro-active genealogy constructed to give same-sex marriage a positive continuity with the past and thereby an added measure of historical legitimacy. Whatever occurs in its legal language, historical Christianity’s view of marriage cannot be dissociated from the ideal of the procreative union. On a mythical level it is inescapable. In Genesis, God creates a man and a women (not two “individuals”) whose first commandment---the first of all commandments---is: “multiply and replenish the earth.” I think the author ignores this overwhelmingly important doctrinal/mythological background when she looks at the history of marriage’s legal status in the West. A merely legalistic reading of the history of marriage is bound to miss what “goes without saying” in the context of marriage. Even so, the doctrinal/mythological context does assert itself in the legal language, as Pruss (see previous response) makes clear in the Catholic Canon Law’s language of “conjugal relations” and sex as an act “suitable in itself” for reproduction. The key point is that procreative union is a form given by (Aristotelian) nature or by divine decree on which to model human behavior. A relationship in which one partner is sterile could still be procreative “in spirit,” since sex would still follow the form of heterosexual reproduction. Such a relationship could remain valid in the Church’s eyes, not simply because it was sex, but because it was formally, if not effectively, procreative. By contrast, a marriage in which impotence prevents sexual intercourse could be overturned, since it does not achieve the form of reproduction. For these reasons, I find the author’s contention that gays’ and lesbians’ right to “demand access to marriage [is] supported by the Western legal and religious tradition, which has never made ability to procreate a precondition for marriage” to be less than accurate. The “ability” to procreate was perhaps not necessary, but the form of procreation was. The author seems to imply that the religious tradition betrays itself at the historical point where the “original” Christian religion would have accepted same-sex marriage. I find this profoundly unconvincing. The more limited argument that the Western legal tradition---which is different from the “legal and religious tradition”---unwittingly anticipates an expanded notion of marriage that includes same-sex relations is more defensible. All this sounds like a “negative” response to the author’s post, but that is only because I don’t think the “historical legitimacy” argument is the right way to approach the issue of same-sex marriage. A more convincing approach would be to argue directly from liberal principles. The state, as we theorize it today, is a collection of individuals, not of men and women. For the state to take sexual identity into account in its recognition of intimate relations is a theoretically unwarranted exception to the principle of individual equality before the law. The argument for same-sex marriage is thus the same argument for equal opportunity. If sexual equality before the law is a good all-around policy, then why not extend it to the legal recognition of all responsible, intimate relationships of care? In arguing for same-sex marriage, it is the new values of a better, liberal society that should be stressed, not a covert and questionable continuity with the past. To be sure, the reconceptualization of marriage in liberal terms may, in breaking with the “venerability” of the past, diminish in some degree the aura of marriage as a “sacred” bond. What is gained, however, is a social bond equally available to all individuals in responsible forms of consensual intimacy. In the end, I think that that the most consistent position in relation to same-sex marriage is that proposed by <a href="http://www.ssrc.org/blogs/immanent_frame/2008/06/18/the-race-to-marriage/" rel="nofollow">Tey Meadow and Judith Stacey in another posting</a> in this series. The state should get out of the business of marriage definitions altogether, and instead focus pragmatically on supporting the “multitude of relations of care” in our diverse society. I am concerned about what appears to be an anachronistic teleology in this argument. The author claims that the shift to monogamy signals an abandonment of the reproductive criterion of marriage in favor of a less exclusive criterion of intimacy. This feels, however, like a retro-active genealogy constructed to give same-sex marriage a positive continuity with the past and thereby an added measure of historical legitimacy. Whatever occurs in its legal language, historical Christianity’s view of marriage cannot be dissociated from the ideal of the procreative union. On a mythical level it is inescapable. In Genesis, God creates a man and a women (not two “individuals”) whose first commandment—the first of all commandments—is: “multiply and replenish the earth.” I think the author ignores this overwhelmingly important doctrinal/mythological background when she looks at the history of marriage’s legal status in the West. A merely legalistic reading of the history of marriage is bound to miss what “goes without saying” in the context of marriage. Even so, the doctrinal/mythological context does assert itself in the legal language, as Pruss (see previous response) makes clear in the Catholic Canon Law’s language of “conjugal relations” and sex as an act “suitable in itself” for reproduction. The key point is that procreative union is a form given by (Aristotelian) nature or by divine decree on which to model human behavior. A relationship in which one partner is sterile could still be procreative “in spirit,” since sex would still follow the form of heterosexual reproduction. Such a relationship could remain valid in the Church’s eyes, not simply because it was sex, but because it was formally, if not effectively, procreative. By contrast, a marriage in which impotence prevents sexual intercourse could be overturned, since it does not achieve the form of reproduction.

For these reasons, I find the author’s contention that gays’ and lesbians’ right to “demand access to marriage [is] supported by the Western legal and religious tradition, which has never made ability to procreate a precondition for marriage” to be less than accurate. The “ability” to procreate was perhaps not necessary, but the form of procreation was. The author seems to imply that the religious tradition betrays itself at the historical point where the “original” Christian religion would have accepted same-sex marriage. I find this profoundly unconvincing. The more limited argument that the Western legal tradition—which is different from the “legal and religious tradition”—unwittingly anticipates an expanded notion of marriage that includes same-sex relations is more defensible.

All this sounds like a “negative” response to the author’s post, but that is only because I don’t think the “historical legitimacy” argument is the right way to approach the issue of same-sex marriage. A more convincing approach would be to argue directly from liberal principles. The state, as we theorize it today, is a collection of individuals, not of men and women. For the state to take sexual identity into account in its recognition of intimate relations is a theoretically unwarranted exception to the principle of individual equality before the law. The argument for same-sex marriage is thus the same argument for equal opportunity. If sexual equality before the law is a good all-around policy, then why not extend it to the legal recognition of all responsible, intimate relationships of care? In arguing for same-sex marriage, it is the new values of a better, liberal society that should be stressed, not a covert and questionable continuity with the past. To be sure, the reconceptualization of marriage in liberal terms may, in breaking with the “venerability” of the past, diminish in some degree the aura of marriage as a “sacred” bond. What is gained, however, is a social bond equally available to all individuals in responsible forms of consensual intimacy.

In the end, I think that that the most consistent position in relation to same-sex marriage is that proposed by Tey Meadow and Judith Stacey in another posting in this series. The state should get out of the business of marriage definitions altogether, and instead focus pragmatically on supporting the “multitude of relations of care” in our diverse society.

]]> By: Alexander R Pruss http://blogs.ssrc.org/tif/2008/06/02/traditional-marriage-or-a-break-with-tradition/comment-page-1/#comment-2598 Alexander R Pruss Wed, 04 Jun 2008 14:39:07 +0000 http://blogs.ssrc.org/tif/?p=251#comment-2598 Thank you for this careful and informative piece. Here are a few supplementary remarks. 1. I noticed not long ago while browsing the web that here in Texas you still count as legally married as long you "agreed to be married," "held yourselves out" as married in front of others, and lived in the state "as husband and wife" (http://www.co.travis.tx.us/dro/common_law.asp). 2. At least within Christendom, there have always been necessary conditions on marriage going beyond the couple's consent. For instance, for the marriage to be valid, the members of the couple had to be sufficiently non-consanguous, not married to someone else, etc. 3. While you are correct that during Christian times, the ability to reproduce has not been essential while the ability to engage in conjugal relations (you use the term "sex," but that term is anachronistic) has been, this should be supplemented by the understanding of conjugal relations as, basically, an "act which is suitable in itself for the procreation of offspring" (this is the formulation that current 1983 Catholic Canon Law uses; the 1917 used the same formulation). For an act to be "suitable in itself" for reproduction, the act must be the same kind of act as a successfully reproductive one would be (using the same organs in the same way, etc.). Thus, if the woman lacked a vagina, the marriage would have been held invalid, even though oral and anal sex would still have been possible---oral and anal sex wouldn't have been seen as conjugal relations, but as species of "sodomy." Likewise, oral and anal sex would not have counted as consummation, and (according to a 1995 article by George and Bradley in the Georgetown Law Journal), this is how a number of U.S. states see it, too (or at least did in 1995). Thus, on the standard understanding of conjugal relations in Christendom, persons of the same sex would be unable to marry because they would be incapable of consummation. Thank you for this careful and informative piece. Here are a few supplementary remarks.

1. I noticed not long ago while browsing the web that here in Texas you still count as legally married as long you “agreed to be married,” “held yourselves out” as married in front of others, and lived in the state “as husband and wife” (http://www.co.travis.tx.us/dro/common_law.asp).

2. At least within Christendom, there have always been necessary conditions on marriage going beyond the couple’s consent. For instance, for the marriage to be valid, the members of the couple had to be sufficiently non-consanguous, not married to someone else, etc.

3. While you are correct that during Christian times, the ability to reproduce has not been essential while the ability to engage in conjugal relations (you use the term “sex,” but that term is anachronistic) has been, this should be supplemented by the understanding of conjugal relations as, basically, an “act which is suitable in itself for the procreation of offspring” (this is the formulation that current 1983 Catholic Canon Law uses; the 1917 used the same formulation). For an act to be “suitable in itself” for reproduction, the act must be the same kind of act as a successfully reproductive one would be (using the same organs in the same way, etc.).

Thus, if the woman lacked a vagina, the marriage would have been held invalid, even though oral and anal sex would still have been possible—oral and anal sex wouldn’t have been seen as conjugal relations, but as species of “sodomy.” Likewise, oral and anal sex would not have counted as consummation, and (according to a 1995 article by George and Bradley in the Georgetown Law Journal), this is how a number of U.S. states see it, too (or at least did in 1995).

Thus, on the standard understanding of conjugal relations in Christendom, persons of the same sex would be unable to marry because they would be incapable of consummation.

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