Sunday, July 3, 2011

Quo Connubialis?

The infamous arch-enemy of marriage equality and LGBT rights, Robert P. George,  was quoted in a June 28, 2011 interview in the conservative National Review Online, entitled Sex and the Empire State touting a paper he co-wrote with Sherif Girgis of Princeton University’s Philosophy Department and Notre Dame Political Science professor Ryan T. Anderson, simply titled What is Marriage?

The pseudo-scholarly article may be cited as:

Girgis, Sherif, George, Robert and Anderson, Ryan T., What is Marriage?. Harvard Journal of Law and Public Policy, Vol. 34, No. 1, pp. 245-287, Winter 2010.

Now, before anyone gets impressed by the “scholarly” seeming journal name, I’ve read that this journal is not a peer-reviewed journal, and is affiliated with the notoriously right wing Federalist Society.  So when we read Sharif/George/Anderson  article, we have to take into account the bias that is built into the article by the authors, and we also must remember that the reality is that it was intended as a propaganda piece to be used by The National Organization “for” Marriage, a notoriously anti-marriage organization, of which Robbie George is the board chair emeritus.

Unfortunately, we're not going to be able to get to the National Review article in this essay, since it ran 13 pages in Word, just going thrrough a debunking of much of the pseudo-scholarly article.

You might also remember Robbie George as one of the principal authors, with convicted Watergate felon Chuck Colson, of the infamous Manhattan Declaration, which I subject to a scathing analysis in my blog essay entitled Responding to the Manhattan Declaration

So with that as prologue, let’s look at the What is Marriage? Article, and see what we might uncover.


The authors create two “competing views” of marriage, conveniently labeling them as “conjugal view” and “revisionist view” – thus creating an immediate bias in favor of the former and setting up the latter as a straw man to beat up.  Let’s call them the “procreation centric” and “family-formation centric” to create a more level semantic playing field (rather than to provide a naming scheme favoring the latter, such as “breeder marriage” and “equal marriage”).

Many of the concepts and even the phraseology of the argument made by the authors can be drawn from papal encyclicals of Leo XIII (Arcanum, (1880)) and Pius IX (Castii Conubii (1930)).  The buzz words "conjugal union" and as we will later see, "true marriage" come from these documents.

So, if the authors were limiting themselves to marriage as it is conceived by the Roman Catholic Church, we would be a smidgen less critical.  But when they presume to apply Roman Catholic doctrine beyond the constraints of adherents of that religion, they go too far.
The authors place a central focus on what they refer to as “the behavioral part of the process of reproduction,” which seems to reduce the centrality of “procreation centric” marriage to nothing more sacred than simple heterosexual f-cking.  They indicate that the bearing and rearing of children “contributes to its distinctive structure.”  But this sex-act-centered definition, seems to paint a broader exclusion and  is intended to leave out those heterosexual couples in which one or both are infertile, or post-fertile, or choose not to have children, as well as those whose marriage contract is made on a gender-neutral basis in those jurisdictions in which the connubium of the right to marry is available on a gender neutral basis.

The “procreation centric” definition also seems to ignore the fact that gay men and lesbians may adopt, or have children from a prior heterosexual relationship (or even as the result of rape or incest) – what about those families where there are two parents, but they happen to both be the same sex, or one or both happen to be transgender?

Moving to the “family-formation centric” view (what they call “revisionist”), the authors do a fairly credible job in their definitional paragraph of describing a gender-neutral rationale for the connubium, while pointedly leaving out the fact that there are many same-sex relationships in which there are children being reared, a situation that also brings in aspects of the matrimonium concepts of marriage.  Key to this contractual “family-formation centric” view is the idea that the state should recognize and regulate marriage on a gender-neutral basis because “the state has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear.”

I also find no fault with the fact that the authors cite as to the matrimonium not being based solely on religious beliefs – this makes perfect sense, since the care and nurture of children must be a central function of a society that grow and continues to the next generation.  One need only look at the Shaker religious movement, to find a focus on non-procreation to find a societal culture that made nice furniture but died out because none of the members did any procreating.

The issues I have with placing primacy on a matrimonium based solely on children conceived within the particular marriage on the basis of heterosexual reproductive sex acts between the parties to the detriment of having marriage in which the connubium is open on a gender-neutral basis to accommodate those whose sexual orientations make them different from the norm, are twofold.

First, not everyone in a marriage relationship can (or should) have children.  There are very real issues of a worldwide human population that is out of control, as we struggle to feed a population fast approaching seven billion people before the end of this year of 2011), in a world that did not reach one billion people from the distant mists of time until somewhere around 1820 (it took nearly 500 years to double population from 1350 until then), and had perhaps 2.5  billion people when I was born in the 1950’s baby boom.  Technically speaking, the human population is a plague that is reaching, or has reached, epidemic proportions, and the authors seem to think that the principal purpose of marriage should continue to be fueling massive population growth.

While I do not think placing the power of the state to make and enforce limits on reproduction, I do believe that we need to recognize that there are limits to human population growth. Continuing an age-old Western societal emphasis on human reproduction that was aimed at building the population size of nomadic desert tribes (the Hebrews) and of warlike empire-building city-states (the Romans) that combined by way of  the adoption of a Hebrew splinter sect as the official religion of the Roman Empire in 325 C.E., is not a moral or effective way to address massive overpopulation.  It does not help that most civilizations, other than the Chinese civilization, don’t seem to have addressed the issue (and the Chinese found it necessary to impose limits as a matter of state policy).

Moving back to the What is Marriage? article, the authors seem to believe that the “procreation centric” view and the “family formation centric” views of marriage are somehow in conflict – and that the adoption of civil laws that complete the legal equality of the sexes in marriage by making the connubium gender neutral, where all the other rights of marriage have already been made gender neutral is somehow detrimental to children.

The authors (and the anti-marriage equality organizations like NOM) take the preposterous position that adopting a ”family formation centric” view of marriage damages the “procreation centric” view.

The authors try to distinguish the anti-miscegenation laws overturned by Loving v. Virginia,  that extended the connubium on a race-neutral basis, from the new laws extending  connubium on a gender-neutral basis.

Incredibly, thay say: “antimiscegenation was about whom to allow to marry, not what marriage was essentially about.”

Stop. Right. There.  Simply put, both the repeal of anti-miscegenation laws and the enactment of gender-neutral marriage laws, both affect the connubium¸ and not the matrimonium that involves the care, rearing and custody of children.

Just as the ban on interracial marriage was designed to enforce and establish white supremacy, the ban on same-sex marriage is designed to enforce and establish heterosexist hegemony.  The argument against gender-neutral marriage literally drips with institutionalized heterosexist bias.

We live in a society that has the medical scientific ability to allow women to conceive without the necessity of having that biological heterosexual sex act going on.  It is possible for both lesbian and gay couples to raise children who are biologically related to one (or both in some cases) of the parties, whether the children are conceived by artificial insemination, in vitro fertilization, surrogacy or other methodology, in addition to those children biologically related to one of the parties from a pre-existing relationship.  It is also possible for lesbian and agay couples to raise children who are abandoned by heterosexual parents for any number of reasons. 

The fact that heterosexual people can make babies by accidentally engaging in certain reproductive heterosexual sex acts at the wrong time of the month does not justify creating or continuing a special limited method of family formation that encourages prolific breeding.

The authors blithely ignore the fact that marriage laws have changed over the years.  In New York, until 1848, the husband controlled the inheritances of the wife, and until 1860, the husband owned and controlled the wages of the wife.  Married women under the common law were not more than the chattel slaves of their husbands, and should their husbands be unhappy with them, the courts would invariably place the children with the husband.
They ignore the many other changes that have been made over the years, changes that started with nearly all the rights of marriage residing in the husband, meandered for a time so that the wife had some rights that were seen as superior, particularly in the context of divorce, and eventually resulted in marriage in which the bundles of rights between the parties have all been made gender neutral.  In most cases in the United States, all but one, and that is the connubium – the right to marry.

New York is the sixth state to make the connubium gender neutral.  Several other countries around the world have also taken this more elightened and non-heterosexist viewpoint.

Nothing in the law recently enacted in New York, or previously enacted in those other places, has taken a single iota away from opposite sex marriage, not even the matrimonium or the idea that a heterosexual marriage should be “procreative.”

That does not mean that if world population continues to rise exponentially, something will not have to be done – if heterosexual people cannot remain continent on their own, or at least start using effective forms of birth control to slow down the growth, the governments may have to trample on individual liberty for the public good.

The authors pull out the hoary arguments based on incest – that despite having legitimate reasons to discourage incest, that the connubium should be allowed to those with close genetic relationships.  (New York is a state that, unlike some other states, does allow first cousins to marry.)  (They might as well raise polygamy and the various fetish object and animal arguments of traditionalist marriage opponents).

The public policy argument, though, bears a look – with rampant breeding leading to massive overpopulation, there is possibly a draconian public policy argument to be made in favor of the notion that perhaps heterosexual  connubium be limited only to the eldest child of a married couple, with younger children and all children born out of wedlock being required to have birth control implants to prevent the possibility of impregnating or becoming pregnant.

(Of course, this is the kind of thing that one nation couldn’t necessarily do without finding itself at a reproductive disadvantage against competing nations which could have a desire to expand territory at the expense of the less-densely populated but morally superior neighbor.  Thus the idea of social control being imposed by one nation-state, other than China, with the hugest problem, is one that may carry detrimental consequences in the event of war, where there are fewer bodies to throw into uniform on one side than the other.  Perhaps technological advantages can maintain some parity or superiority for the less-reproductive nation, but there is no guarantee of this.

At some point on page 250, the authors start meandering toward an Equal Protection argument on page 251, where they diddle with the idea of polyamory.

Of course, there are arguments in favor of permitting various kinds of polygamous family formation, but such relationship recognition has to wait for the law to be revised in such a way to make them possible.

In the 1950’s and 1960’s, the idea of same-sex marriage wasn’t even on the drawing board.  People with minority sexual orientations were persecuted by the heterosexist majority, with so-called “anti-consensual sodomy” laws (which by name completely misrepresent the nature of the inhospitable patriarchist macho misogynist men of Sodom, who weren’t gay, but were rather people who hated strangers and people who were different from them (much like the American right wing, with its anti-immigrant and anti-LGBT positions are the true heirs of Sodom).  Transgender people were persecuted by laws such as New York’s “three articles of clothing” law.

In those days, the legal rights of husbands differed greatly from the rights of wives – and that made marriage a sort of “sour grapes” proposition for lesbian and gay people who might have wished to form families.  It is the oppressive laws that encouraged the development of the idea of “alternative lifestyles” to people for whom the idea of marriage was too high up on the arbor to reach.

But when the laws became gender neutral, the idea of connubium came within reach.  The striking down of the anti-sodomy laws in 2004 in Lawrence v. Texas made it even more attainable.

The authors introduce the concept of “real marriage” into which they place their heterosexist notions and deny reality to non-heterosexual unions.  Let’s call this what it is – no need to be polite, and call it “heterosexist marriage.”  That is, marriage that does not extend the connubium on a gender-neutral basis.  When the civil marriage laws are fully gender-neutral, nothing is lost to opposite sex marriage, and all familypforming relationships are enhanced.

On page 252, the authors pronounce that only marriage between a husband and a wife can be “real marriage.”

They make an example of two people pledging to monogamously play tennis with each other and only each other, until death parts them.  Is that a marriage?

They didn’t have to go far to be in reductio ad absurdum. 

On the other hand, for multiparty marriages, what better example than to look at an existing Roman Catholic phenomenon,, that of certain religious orders of men and women.  These bear, in a group sense, many of the indicia of marriage – in which nuns or sisters say their final vows in a white wedding gown, wear a plain gold band, and profess themselves to be “brides of Christ,” making them the celibate equivalent of Mormon “sister wives” who don’t have reproductive sex with each other, and have a husband who is conveniently unable to engage in reproductive sex with them.

The close-knit relationships of the members of these religious orders are, to me, certainly indicative of family formation, in relationships that are not based on sex, relationships that involve groups and governance much like business organizations.

(Similarly, male members of religious orders are similarly brides of Christ in a same sex union without sex being involved as a necessary incident.)

For many straight married couples of advanced age, sex is often an absent part of their relationship – should they then no longer be allowed to be married to each other?  No – there are so many other benefits, burdens, rights and responsibilities in the bundle of rights that are appurtenant to legal marriage, that it would be unconscionable to deny them on the basis that reproductive sex is no longer possible for them.

Sex, whether it is reproductive or not, may make a couple “one flesh” but love makes them “one soul.” 

One can argue that loveless arranged or dynastic marriages are not true marriages.  While it is true that the two may become “one flesh” for the purpose of reproduction of heirs, but without becoming “one soul” their relationship is only a parody of marriage, even if the union is legal.  Perhaps in this, we might discern the true nature of what the authors are trying to identify as “real marriage.”  But the reality is based on love, not sex – and that is something the authors should have considered.

Marriage should not be a property transaction to seal the alliance of one family with another, for business or for the ruling of nations.  Marriage should not be a matter in which an immigrant from a small Sicilian village seeks out a “paisan” from the same village so he can marry a daughter of the paisan, right off the boat, who has never met him before – but it has been at times such a sham, even with children having been produced.

The procreation-centric view is not even good Catholic theology.  Robbie George should familiarize himself with Casti Comubii, and encyclical written by Pius IX, in 1930, which I cite in my June 17, 2011 Marriage v. Civil Unions  essay.

Much of Casti Conubii  could easily be adapted to read in a gender-neutral manner without losing any of its moral force.(At the same time, much of it could easily be pared down with Jefferson's Razor to eliminate the parts that make it seem as if God actually had something to do with the civil institution of marriage for people who do not adhere to the mythological structure of Catholic Christianity or of Bible-based Christianity)

To Pius IX, the primary reason and purpose of marriage is that of a determined effort on the part of the spouses to perfect each other, by giving their entire beings to the relationship.  He saw it not in the restrictive procreative sense, but for the blending of life as a whole.

This is something that does not require opposite gender parties to work,  This is what family formation is all about, and this is why marriagelaws, including the right to marry, must be gender neutral.

However, it should also be clear that the Roman Catholic encyclicals do not and should not represent the totality of our understanding of the civil institution of marriage,

For example, one passage in Casti Conubii gives us the authors' source for the idea of "true marriage" only being the "conjugal" kind.

"For each individual marriage, inasmuch as it is a conjugal union of a particular man and woman, arises only from the free consent of each of the spouses; and this free act of the will, by which each party hands over and accepts those rights proper to the state of marriage, is so necessary to constitute true marriage that it cannot be supplied by any human power."

There are references in the text to the Roman Catholic code of Canon Law.  Canon Law applies to the Roman Catholic Church and has neither force nor effect as the law of the United States or of the several states.
I have not even gotten through a third of the What is Marriage?  Article, and its clear already that there is almost nothing that the authors write that cannot be refuted, and the things that they write that are actually true are things that are not objectionable in the first place.

Soldiering on, we move to the special parental relationship with children – and this is something that gay and lesbian couples can share just as well and just as effectively as opposite-sex couples.

The authors address the idea of consummation on page 257, and define it in the “traditional” sense – but the idea of David and Jonathan, married husbands,  kissing in the field while David goes “amplio” is completely lost on them.

The authors turn to references to studies on parenting of children.  The thing about this is that if there really were competent studies of the nature they put in this non-peer-reviewed article, the sources would almost certainly have been used by the defense in the California Proposition 8 case.  The fact that the only experts that the opponents of marriage could find in that case actually helped make the case for marriage lends credence to the idea that I should not waste time trying to address these bits of biased research.

At page 260, they start addressing the idea of harm being done to opposite sex marriage by extending connubium on a gender-neutral basis.  They talk about “abolishing” the procreation-centric view of the matrimonium  as if that would actually be adversely affected by gender-neutral connubium.  These are separate aspects of marriage, and their conclusions do not follow.

Their explanations are institutionally cissexist, and unfortunately, they can’t see it.  Citing to Maggie Gallagher and the US Conference of Catholic Bishops as being authoritative is rather sad.  We well know the bias of both sources, which are worthless.

They argue that gender-neutral marriage would :obscure the value of opposite-sex parenting” as an ideal, without understanding the notion that children are the center here.  Opposite-sex couples will still have heterosexual relationships, and children.  Same sex couples with children would see their children enjoying the benefits of marriage.  Single-parent families might see a societal encouragement to form a family with someone of their own sexual orientation, rather then resisting the idea because they cre not compatible with someone else.

On Page 263 they get bolder with the heterosexist supremacy argument, seeming somewhat like racists who would assert that white parents make better parents than parents of other races, without taking into account the many disparities in things like legal recognition.  If someone unbiased did a study of people in Massachusetts with marriages and children, who got married after marriage was made gender-neutral in that state, such a study would be worth consideration.

One can make a comparison of divorce rated in states that have fair marriage laws as opposed to states with heterosexist marriage laws.  The states with marriage fairness have significantly lower divorce rates than the other states.  This says a lot about the positive aspects of marriage equality on even opposite-sex marriages.

Lower on the page, they turn to the false argument of a threat to “moral and religious freedom.”  As I pointed out in my criticism of the Manhattan Declaration, Robbie George only sees religious freedom as belonging to people who share religious beliefs similar to his own.

Proponents of marriage equality have no problem with traditional marriages, which would certainly not be abolished.  But let’s call a spade a spade – only a heterosexist supremacist would hold to the view that heterosexual marriages and families are morally, spiritually and otherwise better than same-sex marriages and families, just as a white supremacist would se white marriages as superior to any others.

The lie about the Catholic Charities adoption service in Boston appears on page 264.  It is well known that Catholic Charities voluntarily gave up it operation rather than give up on state financing of their operation.  The Latter Day Saints still discriminate on the basis of their own religion in their adoption agencies in Massachusetts becaseu they take no state money.

Disruptive students who use religion as a cudgel are properly disciplined.  In the public square, gays are legally just as good as straights, and to hold otherwise does not injure religion, it is biased, bigoted and prejudiced people who flock to religions and images of God that reflect their own biases, prejudices and bigotry.  Religion should be a shield and not a sword – no one should require Catholic priests to perform sacramental marriages for two Jewish straight people, for example – gender-neutral marriage isn’t even a necessary component toward showing how silly the authors’ argument is.

No one is forcing straight people to enter into gay marriages.  But Robbie George and his co-authors feel free to deny Unitarians the right to perform same-sex weddings.  The authors are willfully blind on this issue – their heterosexism obfuscates any real argument they might find – and they just do not have any realistic religious argument.

The bigotry of people who deny that LGBT people are equal is an objective fact, and their religion is not an issue.  No real Christian would oppose same sex marriage.  Only Christianists do that – and while many Roman Catholics are Christians, the Roman Catholic Magisterium itself is an immoral body that on this issue attempts to require Catholics to reflect the evil in their hearts.

There is a huge difference between “proponents of conjugal marriage” (what I have been calling “procreation-centric”) and the cissexist  opponents of making marriage laws gender-neutral.  Referring to NOMbies like Brian Brown, Maggie Gallagher or Robbie George as “proponents of conjugal marriage” (Robbie’s term” without taking into account the bigoted half of their position, is at the least disingenuous, and certainly misleading. 

No one, except perhaps the folks at Zero Population Growth (and honestly anyone else worried about rampant overpopulation), have any issue with the procreation-centric concept for those who believe in it.  It’s the opposition to gender-neutral marriage laws that comprises the prejudice that people of good will find objectionable.

Believing in “procreation centric”  marriage is not “hate.” Opposing the human rights issue of extending the connubium on a gender-neutral basis is – it is that simple, it is a wonder that the authors can’t seem to grasp that their arguments are so weak that they have to rely on lying in their article to try to make their lame points.

And now we’re about half-way through this mess.

I don’t have to argue anything about infertility – I don’t have any problem with gay or infertile couples marrying, so this isn’t going to bother me.  Their attempt to use heterosexist arguments to make a distinction is still objectionable.

At page 269, we get to a section on challenges for “revisionists.”

Anyone who has seen the way marriage laws have changed over the centuries should have some idea that the idea of making one last step toward making the entire marriage law gender neutral by adding the connubium to the gender-neutral aspects is just one more step on the arc of history bending ever-so-slightly toward justice.

Their challenges seem to be based on heterosexist assumptions.

I am not going to defend those who are subversives – I recently had a direct encounter with people of that mind-set over at the Joe.My.God. site comment area on an entry entitled Homoquotable - Dan Savage

(There are 227 comments at the time I am writing this, so it may take a while to find my comments)

I wrote (in part):

“Marriage should involve a commitment of mutual trust, support, and fidelity.”

One response (in part):

‘Says who? Where is the Marriage Policy and Procedure Book that outlines this? You made it up, didn't you? C'mon - confess.”

O which I reply (again in part):

“This somewhat exasperated lawyer (who admittedly does title insurance for a living these days, but has in the past handled a number of matrimonials) suggests that you take a look at a nice law book called "The Domestic Relations Law" of the State of New York. (assuming that since Dan was speaking of the recently signed Marriage Equality Act, that we are talking about New York law). Perhaps also looking at the many cases over the years that interpret the law.”

I suggest that readers of this article go take a look at Joe.My.God. – it is a great source for the news of the day on LGBT issues.

Robbie George and his co-authors mention Michaelangelo Signorile on the subversion topic, and the article I commented on quoted Dan Savage in a post New York marriage vote article on marital fidelity.

All I can say is that the existence of people who would abuse the institution of marriage is not something one finds exclusively in gay circles.  Any time a heterosexual married man, like a Donald Trump, a John Edwards  or a Newt Gingrich (mentioned only because they have been in the news,, steps out on his wife, he is abusing the dignity of marriage. (And this is not an exclusively Republican or straight phenomenon.  Disrespect for marriage comes from many sources – but advocating for extending connubium on a gender-neutral basis is not one of them.

They go on to raise absurd arguments not worthy of even a response.  I’ll issue a challenge to the authors, if I haven’t addressed something in this pretty much “stream-of-consciousness” response to the pseudo-scholarly article – point it out here and I will provide an answer. 

The authors seem to not know tha basis for same sex attraction.  I have a hint, it is not different from opposite-sex attraction, only reverse-polarized.

Their analysis suggesting that same-sex attraction in a small minority of the population is “undesirable” is just more cissexist supremacist tripe.  One might just as easily think of heterosexuality as undesirable in a world threatened by rampant overpopulation – but I’m not doing that, it’s just as logical an assumption to make as the cissexist one.

Even their thought experiment at the end is a narrow-minded cissexist one.  I can only point out, once again, the development of Catholic religious orders of nuns. sisters, brothers and monks, priests, etc. as exemplifying family-like institutions very much similar to marriage that don’t require sexual relationships as a basis.

Reason is on my side, it seems – and the chink in Robbie George’s armor is still there.  His morality is flawed, as is his logic. Gathering like-minded othes to co-author the article does not provide any improvement at all.

Perhaps I might at some other time get to the National Review interview that was New York-specific.  But this essay has been so long in response to the principal arguments in the pseudo-scholarly article, that I don’t feel justified forging any farther ahead.

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