As the Supreme Court prepares to hear Hollingsworth v. Perry and United States v. Windsor, opponents of same-sex marriage have scrambled to answer the central question: What is the government’s rational interest in preventing gays from marrying? The standard argument from moral disapproval was revoked by Romer v. Evans and Lawrence v. Texas. The argument that gay marriages undermine the family has been debunked by a decade of same-sex marriage in several countries. So, as Proposition 8 and DOMA wound their way through the courts, gay marriage opponents lit upon a more durable argument, seemingly grounded in science rather than animus or religion. Their case, presented most comprehensively by Princeton professor Robert P. George, is that only sex acts with a “dynamism toward reproduction”—that is, penile to vaginal intercourse—create true marriages and lead to legitimate child-rearing. Same-sex marriages, by this theory, are not “real” marriages, because they do not involve “organic bodily union.”
This argument puts gay marriage opponents in an awkward position. For years, they said gays were too libidinous and licentious to create stable marriages. Now, as proponents of gay marriage emphasize love, fidelity, and commitment, the right is fetishizing coitus.
The debate between marriage-as-love and marriage-as-coital-vehicle permeates the amici briefs that have flooded the court. George’s amicus—an abridged version of his book—pits the hallowed “conjugal” view of marriage against the destructive “revisionist” view. According to George, the revisionist view sees marriage as “essentially an emotional union, accompanied by consensual sexual activity.” The conjugal view, on the other hand, sees marriage as “begun by commitment and sealed by sexual intercourse.”
What’s so crucial about heterosexual intercourse? According to George, it’s “completed in the acts by which new life is made” and therefore “is especially apt for and deepened by procreation, and calls for that broad sharing uniquely fit for family life.”
That objective—the broad sharing uniquely fit for family life—is embraced by both sides of the marriage debate. Briefs in favor of same-sex marriage speak of “commitment” and the “stability” of a “multifaceted intimate relationship.” What’s in dispute is how you get there. According to opponents, to achieve this sharing, commitment, and stability, a penis must ejaculate in a vagina.
“A conjugal union,” George asserts, “is, on the whole, the most appropriate environment for rearing children.” To sustain this claim, he appeals to traditional red-herring arguments (“mothers and fathers have different parenting strengths [and] their respective absences impede child development,” and “girls are likelier to suffer sexual abuse ... if they do not grow up with their father”), which are drawn from single-parent families and broken heterosexual marriages, not same-sex households. But his primary point is that same-sex marriage would destroy the whole culture of the family. The “social motivations” for “permanence and exclusivity” in marriage “depend on the conjugal understanding” in which “a man and woman form a unity by coordination (coitus),” he writes. “There is no reason of principle why emotional union should be permanent.”
What a base view of commitment this is. In George’s primitive understanding, marriage isn’t about love or raising children. It’s about copulation.
Ostensibly, copulation is crucial because it leads to procreation. But that pretense collapses when George gets to the problem of straight couples who can’t procreate. He writes that “an infertile man and woman can together still form a true marriage” because “an act of sexual intercourse is organic bodily union whether or not it causes conception.” The couple’s “bodies are still united in coitus,” he reasons, and “the behavioral part” of their coupling “remains ordered to reproduction even when nonbehavioral factors ... prevent conception.” In other words, you should copulate with your opposite-sex spouse not to make a baby, but to behave in a way that would make a baby if you were fertile. Coitus is sacred not as a means, but as a performance.
How did George end up in this ridiculous position? By trying to ground anti-gay views in biology. In a previous book, Embryo, he made a similar attempt to drain religious arguments from a hotly contested topic, abortion. There, he used the mechanics of procreation to argue that life begins at conception. Here, he seems to think the definition of marriage can be resolved in the same way. But it can’t. Supporters of gay marriage aren’t questioning the biology of procreation. They’re questioning its relevance. Reducing marriage to intercourse isn’t scientific. It’s just coarse.
George’s argument is now the official legal defense of the anti-gay marriage movement. “Marriage’s importance,” the GOP House DOMA defenders claim, “is derived from its intrinsic connection to procreation.” The fixation on marriage as a procreative tool also reverberates in the myriad amici filed by gay-marriage opponents. By contrast, pro-gay-marriage amici argue that gays seek to marry “to create a stable foundation for having children, to deepen and enrich their commitment to each other, and to bind their extended families together into a new community.”
In a sense, George is correct: Perry and Windsor are not simply about who gets to marry, but what marriage is. Is it fundamentally rooted in a sex act? Or is it a means of securing two people’s love and commitment to each other and their children? That, as much as any legal doctrine, is the question the court now faces.