Government & Marriage: Answering the Left

Wedding Cake Ornament1959

…marriage—we will show—has enough objective structure apart from spouses’ preferences, to be legally regulated.1

…As we deprive marriage policy of definite shape, we deprive it of public purpose.2

…some on the libertarian Right say that marriage has no public value, and call for the state to get out of the marriage business altogether. Voices on the Left say that marriage has no distinctive public value; they say that the state may work it like clay, remaking marriage to fit our preferences.3

In the last part of chapter three, “The State and Marriage,” from What Is Marriage? Man and Woman: A Defense  Sherif Girgis, Ryan T. Anderson, and Robert George answer the Left on civil regulation of marriage and coin the term constructivist for those who think the definition of marriage is “endlessly malleable.”4

Marriage is for them whatever we decide to make it. There are no criteria that your relationship must meet to be a marriage—to realize the value specific to marriage as a human good….Hence there is no “right answer” for the state’s marriage policy, any more than for that national bird: different proposals are just more or less preferable.5

The constructivist position has several fallacies:

First it is often motivated by the fallacy, easy to dispel, that because social practices are partly constructed, they must be entirely constructed.6

While social customs of marriage may vary from culture to culture, “marriage has an objective core, fixed by our nature as embodied, sexually reproductive (hence complementary) beings; and to deviate from it is to miss a crucial part of this basic human good.”7 I described this core in No Longer Two, But One: The Structure Of Marriage and No Longer Two, But One: Inherent Characteristics of Marriage and wrote that from it flow the inherent characteristics of marriage that are permanent and inseparable elements of marriage—”a special link to children and domestic life, and permanent and exclusive commitment.”8

The next problem with constructivist thinking is:

Second, it can make no sense of major philosophical and legal traditions.9

In their development of this argument the authors write:

The view that we propose has been developing for as long as there has been sustained reflection on marriage. Important philosophical and legal traditions have long distinguished friendships of all kinds from those special relationships that extend two people’s union along the bodily dimension of their being and that are uniquely apt for, and enriched by, reproduction and childrearing….

For hundreds of years at common law, moreover, while infertility was no ground for declaring a marriage void, only coitus was recognized as consummating (completing) a marriages….

The law reflected the rational judgment that unions consummated by coitus were valuable in themselves, and different in kind from other bonds. In short, the conjugal view.10

What Is Marriage bookmarked borderIn an earlier post, Redefining Civil Marriage Guts The Rationale For Civil Regulation, I discussed logical inconsistencies of revisionist thinking mentioned in the first chapter of What Is Marriage? They revisit its incongruity again with this third problem of constructivism:

Third, it also contradicts the spirit of common revisionist arguments, and would imply that many revisionists’ views are, by their own lights, as radically unjust as they consider ours to be.11

and point out:

...if marriage were a fiction designed to promote social utility, there would be no natural right to marriage that marriage laws might violate by being defective…

…it is hard to see how revisionists could by their own principles resist the conclusion that justice requires recognizing polyamorous unions. (In fact, revisionist opinion-leaders, as we will show below, are increasingly endorsing such recognition.)12

Finally, even if constructivism were true, it would provide no good basis for the revisionist view.13

The authors conclude this chapter by reiterating that marriage has an objective structure and a distinctive public purpose.

The firm links between stable marriage and children’s welfare, and between children’s welfare and every dimension of the common good, give the state strong reasons to recognize marriage, libertarian qualms not withstanding. But more liberal critics are also mistaken to think of marriage as merely an artifact of our law and culture. It is a human good with a fixed core that we are equally wise to recognize and unable to reshape.14

__________
My posts on the book, What Is Marriage? Man and Woman: A Defense, are more than a book review or report. Because I think the authors brings so much help and clarity to the ongoing debate on marriage, I’m working through their arguments to support or augment your own thinking on marriage. I recommend buying the book and working through it on your own, and I hope these posts spark your interests. If anything is unclear, please let me know. Any misinterpretations of the authors’ intents are obviously my own, and I will correct any that I discover. Previous posts on What Is Marriage? and references for this post are listed below the fold.

Ceramic ornament used on the top of a wedding cake in Birmingham, England in August 1959, Andy Mabbett, Creative Commons Attribution-Share Alike 3.0 Unported license.
1,2,3,4, 5,6, 7,8,9,10,11.12,13,14Sherif Girgis, Ryan T. Anderson, and Robert George, What Is Marriage? Man and Woman: A Defense (Encounter Books, New York NY: 2012) 16, 21, 37, 46, 46, 47, 48, 36, 47, 49–50, 47, 50–51, 47, 52.

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