I’d planned on doing another longish post, continuing to take apart Robert George’s natural law arguments for “traditional marriage.” But shortly after I entered my first post on George, Andrew Sullivan took effective aim at some of the central problems I’d planned on discussing. There’s no sense repeating what he said, but I do want to add to the dialogue with a few observations, some of which relate directly to Sullivan’s points. Much of what follows is borrowed from a longer academic article I wrote ten years ago. It’s amazing how much of it applies to George’s arguments, underscoring the point that there’s nothing new here.
First, the natural law argument is driven by assumptions that can hardly be called the neutral products of pure reason. (Partly because, in my view, there’s no such thing.) The linchpin of his seemingly complex defense of traditional marriage is that one of the central “goods” of marriage is its union of the two sexes, which are naturally complementary, in the procreative act. And gay couples can’t achieve this “good” and therefore, it (supposedly) follows, shouldn’t be allowed to marry. Nor should male-female married couples engage in any sexual activity that isn’t procreative, unless such activities are instrumentally related to the procreative act. So: foreplay, yes; contracepted sex, no — because such sex is, by definition, not open to procreative possibility.
This is weirdly restrictive, and at odds with reality. Plenty of opposite-sex couples (legally married or not) make themselves more sexually available and attractive to each other because some or most of their sexual activity can’t and doesn’t result in procreation. Instead, it cements their mutual love, affection, and friendship (if they’re lucky). Friendship has no place in George’s definition of marriage, but his disaggregation of the lives of actual people into what I might call “marriage-related activities” (sex, but only of a certain sort) and “other” (like friendship) is an abstraction that most couples won’t find descriptive of their lives. George should try reading Savage Love for a few weeks.
George would of course reply to my suggestion that the state might not want to police the activities of (at least most of) Savage’s readers, but that it must continue to send out a strong signal about marriage. What signal, though? That marriage is for procreation only? We don’t have to read Savage, or talk about infertility, to know that this isn’t true today, and never was. And to the extent it’s about something else — which George concedes, in talking about the state’s interest in preferring the institution that supports families — the limits of George’s views become apparent. Because then the state should consider all kinds of issues, including: whether and how extensively to privilege marriage; who should be able to marry; and how to support all families (and people).
Natural law arguments can perhaps provide some descriptive insights, but can’t and should not direct public policy. In my earlier article, I sketched out a more appealing, Rawlsian (and closer to reality) approach to the issue of access to marriage. The comments were focused on marriage equality, but they apply more generally. I’ll close with this public argument:
Natural law – even if we could all agree as to what it says – should not govern legal issues….[T]here is a danger in relying exclusively on some comprehensive doctrine of morality. [I]n The Idea of Public Reason Revisited, Rawls sets forth a workable and plausible model of how a democratic society should decide difficult political issues. The terms of public reason require adherence to a basic principle of reciprocity: “Citizens are reasonable when, viewing one another as free and equal in a system of social cooperation over generations, they… offer one another fair terms of cooperation according to what they consider the most reasonable conception of political justice.”
[T]his approach demands a certain modesty. One’s own religious or secular moral views, while relevant to deciding issues of political rights and justice, cannot be wholly relied upon, because they are too broad. The narrower issue is whether the outcome considered is true to “the principles and values of the family of liberal political conceptions of justice.” These are peculiarly public matters, so that the comprehensive moral or religious doctrine to which one subscribes should be invoked only if supported by “properly public reasons.”
In [the same-sex marriage context], the state’s interest is seen as maintaining the family “in a form that is just,” as well as “arranging for rearing and educating children, and … public health generally.” These interests, of course, are in thrall to the political society’s overall imperative of “maintaining itself and its institutions and culture over generations.” Thus, any restriction on the form of the family would have to be justified by its negative impact on “the orderly reproduction of society over time[,]” and not by “religious or comprehensive moral doctrines” which are “improperly specified.”
This still seems right to me.