Marriage and the Liberal Imagination1

Geo. LJ, 1995

Dame. 1. We hold that marriage, as a one-flesh communion of persons, is intrinsically, and not merely instrumentally, good. In marital acts-that is, sexual intercourse that consummates and actualizes marriage by uniting the spouses in a reproductive-type act, thus making them, in no merely figurative sense, two-in-one-flesh-spouses participate in this intrinsic goodness. Because the biological reality of human beings is "part of, not merely an instrument of, their personal reality," the biological union of spouses in marital acts constitutes a truly interpersonal communion.

Contemporary Political Theory, 2007

What role should the state have in recognizing and regulating marriage? Until recently, liberal political theorists paid little attention to this question. Yet the challenges that the public-private boundary-crossing institution of marriage poses to liberalism are substantial. Tensions in contemporary debates suggest that these challenges remain unaddressed and thus, invite attempts to formulate a coherent and compelling model of the relationship between marriage and the liberal state. This article responds to this invitation. Marriage has long been a concern of at least some liberal thinkers. Typically they focused on the dual (contract/status) character of marriage, or its role in (re)producing gender inequality. While these critical insights are essential to any adequate account of marriage and the state, they are only part of the picture. To grasp the sources of confusion and silences in contemporary debates, and formulate a robust liberal model of marriage and the state, we must examine the functions -intended and effective -of public recognition of marriage. This examination highlights the relevance to the marriagestate relationship of familiar liberal approaches to negotiating the religion-state relationship. Drawing on these approaches and liberal feminist thought, I sketch a model of marriage and the state that aims to expand the area of protected freedom without sacrificing equality, fairness or marriage. Under the model I propose, marriage would be disestablished. The state would neither confer marital status, nor use 'marriage' as a category for dispersing benefits. Legitimate public welfare goals currently treated through marriage would be addressed through an intimate caregiving union status.

In this article I consider whether the legalization of sex-same marriage implies a right to incestuous marriage. I begin by suggesting that the liberal state get out of the "marriage" business by leveling down to a universal civil union or "registered domestic partnership" status. Removing the symbolism of the term "marriage" from political conflict, privatizing it in the same way as religion, would have the advantage of both consistency and political reconciliation. The question is then whether incestuous unions should be both legal and eligible for this status. I argue that the arguments compatible with public reason for prohibiting them outright, or even for excluding them from the permissible types of legally registered partnerships, are quite weak. The objections to allowing such relations are those from (1) child abuse; (2) unfair burdening of society; and (3) the creation of bad lives. I argue that while rape and other forms of child abuse would be no more legal or tolerated than they are now, the concern about any form of weakening a society's legal and political resources to combat such abuses does indeed register on the justificatory scale, but does not prove that such first-degree incestuous sexual relations are inherently bad enough to warrant intervention in their own right. I then argue that the concern about unfairly burdening society with unhealthy persons is not as dangerously totalitarian as we might initially fear, but nor is it strong enough to justify an outright prohibition. Finally, I argue that a concern to dissuade persons from creating certain kinds of lives (children with extreme birth defects) is also not as dangerously totalitarian as we might initially fear, and in fact goes further towards explaining why we might have a legitimate interest in intervening. Nonetheless, I argue that the criminalization of such acts only make sense when they are indicators of other offenses, namely negligence or abuse, and it thus seems that the act of consanguineous reproduction is itself insufficient. One potentially surprising conclusion of this inquiry is that far from creating strong reasons for tolerating these practices, religious or cultural reasons for valuing incest (as well as polygamy) actually seem to count against tolerating them. The reason is that from a liberal perspective, tolerating polygamy and incest involves the assumption that it is possible to disassociate polygamy and incest simpliciter from abusive practices associated with them, including environments where children are raised to devalue their own sexual (and other) autonomy. However, the presence of comprehensive doctrines which include polygyny or incest as part of a good life actually makes it harder to justify disassociating polygamy and incest themselves from the likely abuse and coercion practiced by those who would value polygyny or incest.

Brigham Young University Journal of Public Law, 2003

Although the Constitution embraces some liberal principles, such as freedom of religion, it does not mandate the entire liberal program, although the Supreme Court sometimes imposes liberal standards to the Constitution of its own volition. Lawrence v. Texas, 3 for example, applied a right of privacy analysis that the Court itself fabricated to strike down criminal sodomy statutes. The constitutional rationale for Lawrence was pure fiction, but the decision squares with liberal principles because the states had no persuasive justification for those statutes other than that homosexual acts are immoral. In liberal theory this rationale is not a legitimate basis for criminal punishment. Nothing in the Constitution should bar a state from denying recognition to same-sex unions simply because the state considers them intrinsically immoral. However, that justification will not persuade anyone who doesn't already accept it. Accordingly, this Article makes the case for traditional marriage in terms of conventional social goods and without regard to the intrinsic morality of same-sex unions. II. NORMS AND THE EXPRESSIVE FUNCTION OF LAW "Legal scholars have rediscovered social norms." 4 People's norms (or values) are crucial to society's success. 5 The collapse of the Soviet empire, for instance, left populations without a stable set of norms. 6 The result was disorder and decline. Further, for economic growth a modern REV. 1515, 1518 (1993) (stating that "neutrality liberalism" requires the state to be "neutral among different conceptions of the good life"). Liberalism is not morally neutral. See Patrick Neal, A Liberal Theory of the Good?, 17 CANADIAN J. PHIL. 567, 567 (1987) ("liberalism is not neutral with regard to the question of the good life"); Stephen Macedo, Liberal Civic Education and Religious Fundamentalism: The Case of God v. John Rawls, 105 ETHICS 468, 477 (1995) ("Even a suitably circumscribed political liberalism. .. will in various ways promote a way of life as a whole."). Indeed, moral neutrality is impossible. Government must affirm some norms and not others; it cannot support incompatible moral doctrines. Some liberals admit this. See Michael Perry, Religious Morality and Political Choice: Further Thoughts-and Second Thoughts-on Love and Power, 30 SAN DIEGO L. REV. 703, 708 (1993) ("the resolution of many of the political controversies that engage and divide us. .. requires recourse to moral beliefs that are inadmissible under the neutralist ideal") (emphasis added);

Florida State University Law Review, Vol. 25, p. 705, …, 1998

Abstract: Liberalism, both contemporary and classical, rests at heart on a theory of human nature, and at the center of that theory lies one core commitment: all human beings, qua human beings, are essentially rational. There are two equally important implications. The ...

The anthropologist Mary Douglas, in her book Natural Symbols, boldly states:

This article concerns the morality of sexual acts. Why, the reader may ask, should it appear in a journal of jurisprudence? The law of marriage has long embodied the understanding that marriage, as a moral reality, is an inherently heterosexual institution. Nowhere is this more evident than in the legal rules regarding the consummation of marriage by, and only by, sexual acts which are reproductive in type. These rules, and the understanding of marriage from which they flow, have been called into question by people who propose the revision of marriage law on the ground that acts traditionally condemned as sodomitical may, in some cases, be the moral equivalent of reproductive-type acts. In particular, advocates of "same-sex marriage" claim that sound moral analysis demonstrates that homosexual sex can unify the whole lives of people as committed partners in just the way that the reproductive-type acts of spouses actualize and enable them to experience their true marital union. In this article we shall show that sexual acts are morally right only within marriage. Understanding this will enable one to see why nonmarital sexual acts, including homosexual acts, are intrinsically incapable of actualizing true marital union, and why the law ought not to treat such acts as equivalent in human significance to marital acts. Indeed, we shall argue that nonmarital sexual acts are always and in principle contrary to an intrinsic personal good, and as such harm the character of those freely choosing to engage in them. It is often assumed in treatments of sexual ethics that the central argument from natural law theory against nonmarital sexual acts is simply that such acts are unnatural, that is, contrary to the direction inscribed in the reproductive or procreative power. This argument, often described as "the perverted faculty argument," is easily disposed of. [FN1] It is then assumed that *136 only prejudice motivates the conviction that homosexual acts, for example, are morally wrong. [FN2] Some contemporary natural law theorists, however, have articulated much more powerful arguments in sexual ethics. In this article we present a natural law argument for the proposition that sexual acts are morally right only within marriage, an argument first developed in detail by Germain Grisez, [FN3] and subsequently presented by others influenced by his thought. [FN4] The argument we propose centers on the choice to engage in a nonmarital sexual act, and the relationship between this choice and what is genuinely fulfilling for the persons involved in that act. We argue that in order for a choice to engage in sex to be respectful of the basic, intrinsic goods of persons, this choice must (1) respect the integration of the person as bodily with the person as intentional agent, and (2) constitute a choice to participate in the real and basic good of marital union, rather than to induce in oneself and one's partner(s) a merely illusory experience of interpersonal unity. We shall argue that chaste marital intercourse [FN5] is really and literally love-making, that it really consummates or renews the marriage, that is, the two-in-one-flesh unity of a man and a woman. And we shall argue that if sexual acts do not consummate or renew marriage, they involve either self-alienation (and so violate the first requirement) or constitute the pursuit of a merely illusory experience (and so violate the second requirement). So, if our view is right, sex offers a unique and profound human possibility, a possibility denied, incidentally, by liberationists who claim to have a more enlightened and appreciative view of sex. At the same time, the abuse of sex is a degradation of persons, justifying the cautious attitude toward sex adopted by some of history's most profound thinkers. Under what conditions is a sexual act morally right? There are, basically, three positions contending for dominance in the contemporary debate. First, some hold the "liberationist" position that as long as no other, more general moral norms are violated, such as those prohibiting lying, deception, exploitation, and so on, sexual acts are morally good (or, at least,

Theological Studies, 2008

The authors, replying to criticisms of the Catholic Church's teaching on homosexual acts presented by Todd Salzman and Michael Lawler in an article in this journal, argue that marriage is a multileveled personal union, essentially including the bodily as well as the emotional and volitional levels of the human self. Only sexual acts between a man and a woman who have consented to the kind of union that would be fulfilled by conceiving, bearing, and raising children together (that is, marriage) can consummate or actualize marital communion. S CRIPTURE, THE POPES, BISHOPS, PASTORS, and authorized Catholic teachers have for centuries proclaimed as a significant part of Christian moral teaching that homosexual acts are intrinsically morally wrong. In recent years, however, some have challenged this teaching. For example, in a Quaestio disputata in this journal in 2006, Todd Salzman and Michael Lawler (hereafter, S/L) say that this teaching is incorrect. 1 They argue that what they refer to as merely "the magisterium's teaching," is based on the mistaken tenet that heterogenital complementarity is a sine qua non of a PATRICK LEE received his Ph.D. in philosophy from Marquette University and is the John N. and Jamie D. Professor of Bioethics and director of the Institute of Bioethics at the Franciscan University of Steubenville, Ohio. With a focus on ethics and bioethics, his recent publications include "The Papal Allocution Concerning Care for PVS Patients: A Reply to Fr. O'Rourke," in Artificial Nutrition and Hydration: The New Catholic Debate (2008); and with Robert P. George, Body-Self Dualism in Contemporary Ethics and Politics (2008). In progress is an article on same-sex unions for the Monist and a book with Robert P. George on marriage. ROBERT P. GEORGE, with degrees from Harvard University (J.D.) and Oxford University (D.Phil.), is McCormick Professor of Jurisprudence at Princeton University. His areas of special competence are philosophy of law, moral and political philosophy, and bioethics. In 2008 he published two studies: Body-Self Dualism in Contemporary Ethics and Politics (with Patrick Lee) and Embryo: A Defense of Human Life (with Christopher Tollefsen).

Marriage As A Conjugal Reality ~ From the Frontlines to the Sublime: Why Man & Woman?, 2018

Marriage as a Conjugal Reality is a resource for those called to promote and defend the Catholic understanding of marriage as the joining of one man and one woman. The first section recounts the Marriage Battle of Massachusetts (1997-2007) from the author's frontline perspective. The story of the heroic witness of those Catholics and their allies is told to inspire and encourage future witnesses. The second section offers a theological reflection on why sexual difference matters to marriage as the means for understanding who God is, who we are, and what is the nature of the bond of love that exists between God and humanity. That bond of divine love is conjugal because by it God has become one flesh with us--and thus the conjugal, one-flesh union of man and woman, joined as husband and wife, is uniquely capable of reflecting and making present this supernatural reality. Removing sexual difference from the definition of marriage eliminates marriage's capacity to be the principle sign of the intimacy that God desires with each one of us. Recognizing marriage as a conjugal reality is thus central to conveying the entirety of the Good News of Christianity.

Roczniki Filozoficzne