As promised, here is the first part of my commentary on the two essays mentioned in Andrew Sullivan's post, on which I commented yesterday. As soon as I realized that Robert P. George's piece against same-sex marriage was an OpEd for the Wall Street Journal, I had a strong feeling about which way it would go. Let me put it as succinctly as possible: George is presenting, once again, all the tired, nonfunctional arguments of "marriage as breeding license" that we've seen before from such luminaries as the Pope, David Blankenhorn, and other right-wing shills. He's basically arguing Christian dogma here, not civil law. He spends the opening paragraphs pooh-poohing the idea that marriage is a fundamental right for gays -- for everyone else, but not for gays -- because marriage is about the conception of children.
Opponents of racist laws in Loving did not question the idea, deeply embodied in our law and its shaping philosophical tradition, of marriage as a union that takes its distinctive character from being founded, unlike other friendships, on bodily unity of the kind that sometimes generates new life. This unity is why marriage, in our legal tradition, is consummated only by acts that are generative in kind. Such acts unite husband and wife at the most fundamental level and thus legally consummate marriage whether or not they are generative in effect, and even when conception is not sought.
He's already attempting to dodge the problem of childless heterosexual marriages: marriage "sometimes" generates new life. From a secular point of view, can you see the big gaping hole here? Making love is only real if there's the possibility of children -- not the desire, not the intent, but only the possibility. The dodge here is in that last clause: "even when conception is not sought." Can I call bullshit? If you're taking steps to avoid conception, how can the union be generative in nature? Just because you're of opposite sexes? So that a man and a woman, even if they are practicing birth control, have "bodily unity," while me and my (sadly, at this point only theoretical) husband are only having animalistic sex. (Which does have its place, after all.) Sorry, no -- I've had sex with men I loved and it was just a deeply spiritual and unifying as anyone else's, and I defy anyone to tell me differently.
The stinky brown stuff gets deeper:
Only this understanding makes sense of all the norms-annulability for non-consummation, the pledge of permanence, monogamy, sexual exclusivity-that shape marriage as we know it and that our law reflects.
No. Simply not true. This is another case of a right-wing apologist making up a "definition" of marriage that he doesn't want to change. Of course not, it's his baby -- if you'll pardon the expression. There are other understandings that make sense of all the norms, particularly the one that has been a primary understanding throughout history: the basic idea has been marriage as a contract to produce heirs, which is the main reason for annullability because of non-consummation, monogamy, sexual exclusivity: it's a property arrangement, and always was. Making up some spiritual mumbo-jumbo doesn't change that. Ah, you say, but what about permanence? Well, everyone wants love to last forever, don't they? I would be thrilled to meet Mr. Right and live happily ever after.
He's managed a double whammy here:
If marriage is redefined, its connection to organic bodily union-and thus to procreation-will be undermined. It will increasingly be understood as an emotional union for the sake of adult satisfaction that is served by mutually agreeable sexual play. But there is no reason that primarily emotional unions like friendships should be permanent, exclusive, limited to two, or legally regulated at all. Thus, there will remain no principled basis for upholding marital norms like monogamy.
Let's take his first sentence for what it is: an unprovable assertion. Then we can go on to the whammies:
One: "emotional union fo rthe sake of adult satisfaction that is served by mutually agreeable sexual play." Let's undercut the emotional and spiritual aspects of a love relationship and reduce it to sex -- after all, we're talking about gays here, and that's all they're interested in, right?
Two: same-sex "marriage" (got to have the "fake" quotes at least once) is simply "friends with benefits," so there's no need to give them legal recognition as marriage. This is because, you see, two men or two women cannot possibly share the deep emotional and spiritual connection that a mixed-sex couple automatically does -- even if it's only for 55 hours. That also clears the way to further demean same-sex relationships by equating them to housekeeping arrangements between elderly nuns -- who I'm sure have some regard for each other, and probably a deep and abiding friendship, but it's not the kind of love that I've been fortunate enough to share with a couple of men in my life. And do note that George quite deliberately equates love between two men or two women to "friendships."
And then he goes on to the "it's going to lead to polygamy" argument. We've done that one before. No, it won't, unless we want it to. No one's advocating it, in spite of his "citation" of activists -- his list starts off "over 300 lesbian, gay, and allied activists" -- and he doesn't name one lesbian or gay. I know there are some who are against marriage, but they are nowhere near the mainstream of the gay civil rights movement.
He ends up where he started:
Because marriage has already been deeply wounded, some say that redefining it will do no additional harm. I disagree. We should strengthen, not redefine, marriage. But whatever one’s view, surely it is the people, not the courts, who should debate and decide. For reasons of both principle and prudence, the issue should be settled by democratic means, not by what Justice Byron White, in his dissent in Roe, called an “act of raw judicial power.”
There's another dodge in here that is as far as I can see a fundamental flaw: no one has so far explained, without recourse to "mystical unions" in the service of "procreation" -- oh, excuse me, that's now "the possibility of procreation" -- how including another group in the institution of marriage weakens it. It's all tied up in this "definition" that seems made of equal parts wishful thinking and Ozzie and Harriet reruns.
This man is a professor of jurisprudence at Princeton, and doesn't want to recognize one central fact of American jurisprudence: fundamental rights are not subject to plebiscites. That, it seems, is too inconvenient to mention. In point of fact, it has always been the courts who have decided questions of fundamental civil rights. Sometimes they've decided poorly, but things work out -- in fact, it's often at the courts' insistence that legislatures (and please note that in his earlier paragraphs he dismissed the role of legislatures, which are, after all, the representatives of the people, selected by the people to pass laws on these and other issues) have acted at all. The thing about legislatures is that they're always going to take the easier route. Referenda are entirely dependent on who can buy the most air time and whether those groups are at all constrained by fact (usually not, in the case of same-sex marriage).
In fact, he doesn't address the fundamental issues here at all. His lead-in dicussion of the role of the courts in this is spun so heavily it's a wonder he wasn't too dizzy to finish the essay. (Or maybe he was -- that would explain the caliber of his "argument.") In fact, he dismisses the idea that gays are entitled to the same fundamental rights as straights. I certainly wouldn't want him representing me in court.
Sullivan is much too respectful of this drivel. And it is drivel, nothing more.
Rowe's post looks, if anything, even worse, but I'm too tired to dissect it now. Tomorrow, or maybe later today.
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