Kenji Yoshino responds to Robert P. George' second attempt to justify banning gay marriage.

The law, lawyers, and the court.
Dec. 21 2010 4:40 PM

Lose the Baseball Analogy

My response to Robert P. George's second attempt to justify banning gay marriage.

Two men holding hands.
If marriage is about only "common procreation," aren't infertile couples the same as gay couples?

Last week, I critiqued the argument against same-sex marriage, set forth by Robert George, a prominent conservative professor at Princeton, and two co-authors. In essence, their argument is that same-sex couples can be excluded from marriage because the core purpose of the institution is procreation internal to the union. I asked whether the extended defense they gave succeeded and argued that it did not because of a simple flaw at its core.

The flaw is that the principle of "common procreation," as this idea is known, is overinclusive. It demeans the marriages of many opposite-sex couples who do not give birth to biological children, including infertile couples, couples who have chosen not to have children, couples who have adopted, and couples who have used reproductive technologies to create their families. My critique concluded that the capacity (or desire) to procreate is not a principled ground on which to define same-sex couples out of the institution of marriage while pretending to keep all opposite-sex couples inside it.

George and his colleagues have published a response to my critique. They contend that I have "[1] ignored their central arguments, [2] made unwarranted linguistic associations, [3] indulged in pejorative labeling, and [4] studiously ignored every challenge [they] pose." I believe I understand why they feel I have missed their arguments, as my interest (stated in my critique) was in whether they had propounded a better version of the "common procreation" argument than the one offered in court by the proponents of Proposition 8, California's gay marriage ban. This interest led me to focus on one part of their argument more than on others. To be clear, however, I am not making an analytic concession—the common procreation argument is so central to their thesis that rebutting this part undermines the whole. I now take the opportunity to elaborate on this point by taking up their four objections.

In their response, George and his colleagues state that "[t]he central argument of our article is that equality and justice are indeed crucial to the debate over civil marriage law, but that to settle it—to determine what equality and justice demand, one must answer the question: what is marriage?" Their answer to this question is that marriage is "conjugal marriage," a pre-legal reality consisting of the union of one man and one woman. The co-authors note that "in making our case for conjugal marriage, we consider the nature of human embodiedness; how this makes comprehensive interpersonal unions sealed in conjugal acts possible; and how such union and its intrinsic connection to children give marriage its distinctive norms of monogamy, exclusivity, and permanence." Each and every one of these dimensions relates to the principle of "common procreation." According to the co-authors, the salient aspect of human "embodiedness" is the fact that "individual adults are naturally incomplete with respect to one biological function: sexual reproduction." The orientation toward procreation is also the quality that differentiates the sexual activity of opposite-sex couples from that of same-sex couples and affords opposite-sex couples a distinctive relationship to their biological children. Opposite-sex couples, the co-authors say, engage in "the kind of activity that is by its nature fulfilled by the conception of a child."

Given this reliance on common procreation as the foundation of heterosexual marriage, George and his colleagues must provide an answer for why opposite-sex couples who do not engage in common procreation still have what they call "true marriages." They attempt to do so but fail. Consider the case of infertile couples. The original article reassures infertile couples that their marriages are "real" by observing: "A baseball team has its characteristic structure largely because of its orientation to winning games; it involves developing and sharing one's athletic skills in the way best suited for honorably winning . . . But such development and sharing are possible and inherently valuable for teammates even when they lose their games." As I have already observed, this ostensible rescue still demeans the marriages of infertile couples by comparing them to baseball teams that not only do not win games but also cannot win games.

George and his colleagues state that I mischaracterized the core of their analogy (this is what they call "unwarranted linguistic associations"). They argue that I mistook an analogy (X is like Y) for an identity (X is like Y along all dimensions), noting that they make an appropriate qualification in the article "only a few sentences after drawing this analogy." To look at their actual qualification, however, is to see that the core of the analogy is precisely as I described it. The article states: "Although marriage is a social practice that has its basic structure by nature whereas baseball is wholly conventional, the analogy highlights a crucial point: Infertile couples and winless baseball teams both meet the basic requirements for participating in the practice (conjugal union; practicing and playing the game) and retain their basic orientation to the fulfillment of that practice (bearing and rearing children; winning games), even if that fulfillment is never reached." The qualification is that marriage and baseball are not fully analogous in that one draws its structure in part from nature while the other is wholly a social construct. Having made that distinction, the article notes convergence on a "crucial point": "infertile couples and winless baseball teams" are similar because both engage in a practice to which their organizations have a basic orientation, "even if that fulfillment is never reached."

In their response, George and his colleagues now enter a different qualification, observing that sports, unlike marriages, are "a competitive activity in which having winners and losers is inherent to the practice." (This cannot be read as a restatement of the article's original distinction between partially and wholly conventional activities, as both partially and wholly conventional activities can be competitive.) But even this freshly minted comeback is unavailing—infertile couples are still not fulfilling the supposed core purpose of marriage. Regardless of whether infertile couples are characterized as "winless" or as not having "fulfilled" the core purpose of marriage, such couples must compare unfavorably to couples who have fulfilled the supposed central object of marriage. This problem also stands as an impediment to the separate argument made in the article that infertile couples are still engaged in "conjugal" sexual activity because their "coitus" leads to a special kind of union. Why deem the sexual intimacy of an infertile couple to be a totally separate activity from the sexual intimacy of a same-sex couple, when neither results in procreation? Again, even if we accept the co-authors' answer (consummation is a symbolic "sealing" of the relationship "oriented" toward procreation), the infertile couple is still not fulfilling the core purpose of marriage. In addition, it might surprise many couples who cannot have children (or choose not to do so) that the validity of their marriage rests on its "orientation" toward procreation.

This analysis brings me to the co-authors' next objection—that I "indulged in pejorative labeling" when I stated that the common procreation argument "demeans" and "denigrates" opposite-sex couples who do not procreate. The authors interpret words like "demean" and "denigrate" to be forms of rhetoric "designed to exploit caricatures of conservatives as mean-spirited bigots out to thwart those not like themselves." This interpretation confuses an argument about dignitary harm with an aspersion directed at them. Resting marriage on a common procreation argument tells some people within an institution (marriage) that they have a right to be there even though they are not fulfilling its core purpose. In doing so, it ranks their marriages below the marriages of those who are fulfilling its core purpose. When I describe that as demeaning, I am making a substantive point about the subordination entailed by the article's logic.

Similarly, I stand by my view that the common procreation argument, as elaborated by George and his co-authors, "denigrates" parents who have adopted children. As I observed in my critique, the original article states: "Children, likewise, have only two parents—a biological mother and father." The direct implication of this statement is that an adoptive parent is not the parent of his or her child, as he or she is neither the biological father nor the biological mother of that child. So I disagree with George and his colleagues when they state that they "neither said nor implied ... that adoptive parents are not real parents." In their response, George and his colleagues say that I have so misrepresented their position that it would be "fruitless to respond in kind." Given that I have simply quoted a statement they make, I remain interested to know why they believe individuals who adopt can be the parents (much less the "real parents") of their children. For if married couples who adopt are truly the parents of their adoptive children, it becomes less clear why the special biological link between parents and children can be a ground for defining the nature of marriage to exclude same-sex couples.

Finally, George and his colleagues accuse me of "studiously ignoring every challenge" they pose, particularly the challenge to advance my own definition of marriage. Given the context in which I joined the fray—an examination of the argument made in the California lawsuit—I thought the answer would be intuitive: I want the institution of marriage to widen to permit same-sex couples to enter it. George and his colleagues have ready-made objections for such a statement. First, they say that permitting same-sex couples to marry would distort the institution, such that this debate cannot be framed solely in terms of increasing access. Second, they assert that permitting same-sex couples to marry would lead us down a slippery slope that would press us to recognize polygamous relationships as marriages. I take up each argument in turn.

George and his colleagues draw a stark distinction between laws barring inter-racial marriage, which they unequivocally oppose, and laws excluding same-sex couples from marriage, which they unequivocally favor. They state that "antimiscegenation was about whom to allow to marry, not what marriage was essentially about." Yet when anti-miscegenation laws were being litigated, prominent players in the debate said they were both about the question of "who can marry?" and the question of "what is marriage?" For example, the trial court in Loving v. Virginia (the case in which the Supreme Court later struck down state bans on interracial marriage in 1967) made a natural law argument against interracial marriage: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." In upholding that opinion, the Supreme Court of Virginia said that the state could legitimately seek to prevent "a mongrel breed of citizens." At stake was the purpose of marriage, which was viewed as the state's vehicle "to preserve the racial integrity of its citizens." Today, all these arguments seem ludicrous. But they were made by courts, not fringe figures, only a half-century ago. 

The obvious rejoinder is that marriage has worked itself pure—that we have cleared away what marriage is not to arrive at a true understanding of what marriage is. But those who have propounded trans-historical, much less eternal, definitions of marriage have often been time's fools. Fifty years from now, I expect new challenges will be made to the definition of marriage. Yes, such challenges could take the form of challenges to recognize polygamous marriages (in fact, such challenges would not be new, as they were made on grounds of the free exercise of religion in the 19th century). Currently, I would distinguish polygamous marriage primarily on the intuitive ground that one can give one's full self to only one other person—that is, that the "undivided commitment" the co-authors praise can be valuable even in the absence of common procreation. But I would prefer to test such intuitions if and when such debates become live national controversies. I do not purport to know where future challenges will arise, or how those challenges might require us to reassess the purposes of marriage. I refuse to answer the question "What is marriage?" by saying "Marriage is one thing, always and everywhere, for all people." I regard that refusal as a strength, rather than as a weakness, of my position, as I do not think we stand at the end of history today.

Traditionalists often speak in terms of a timeless "ideal" family. George and his co-authors speak in this vein when they ask in their response if I "deny that children deserve to be raised, wherever possible, by a mother and father—that this is worth promoting as an ideal?" The answer is yes, I do deny that claim. As I noted in my critique, "the research comparing the kids of gay adoptive parents to the kids of straight birth parents shows that the first group fares just as well as the second." More broadly, when people in the marriage debates ask whether I would not wish to promote an "ideal," I find myself asking "which ideal?" Liberty, equality, and justice are also ideals, and only time will reveal what they require of us. The co-authors evade the force of these ideals by defining marriage according to the unsustainable common procreation rationale. Once this argument is properly retired, marriage returns to the field on which these larger ideals can shape it. For me, for now, it is enough to say those ideals require the recognition of same-sex marriage.

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