This is the third in a five-part debate series on same-sex marriage between James W. Doig and Robert P. George. It originally appeared on The Witherspoon Institute's Public Discourse. You can read Part One here and Part Two here.
Thanks for your thoughtful response to my initial comments. In your opening paragraphs, you ask that I provide a general account of what marriage is. To me, it is a continuing relationship between two individuals who commit their lives (including their sexual lives), their futures, and their fortunes to each other. The two individuals may be of opposite sexes or the same sex. If they have children-natural or adopted-that commitment extends to the children as well.
Some observers may want to extend the term marriage to other patterns of human relationships; I would not. However, I believe, as I understand you do, that some legal protections (filing joint income-tax returns, etc.) might be extended to individuals in some non-marital but stable relationships.
As in the case of Ann and Ellen, whose marital relationship I described in my first essay, marriage between two individuals can be "fulfilled by family life." Your effort to limit the term "marriage" to two individuals who are joined by an "inherent orientation to procreation" fails, in my view, because marriage, as you (and I) understand it, can refer to opposite-sex relationships even if (due to advanced age or other reasons) procreation is not possible.
Later in your essay, you list five critical features of marriage. I believe that these five are essential and that the concept of marriage, so defined, can properly be applied to both HSM and SSM. These features do provide, I think we agree, the "principled basis" for stabilizing norms. I do not accept the different views held by Brake, Steinem, Savage, Brownworth, or Gessen, and I see no reason why I should. In my view, as in yours, two individuals commit themselves as I indicated above. I am sure there are many other and odd views about marriage that can be found in the land, but they are not mine, nor do I believe I am compelled to embrace them.
One way of understanding the "principled basis" on which your argument rests is to focus, as I think you do, on the bodily "complementarity" of a woman and a man. That focus, however, would permit polygamy, and in some cultures-now and in the past-polygamy is or has been accepted. To get beyond the physical complementarity, we need to introduce other important concerns, such as the disadvantage (especially to women) of polygamy and the disadvantage (to those who are physically attracted to others of the same gender) of prohibiting same-sex marriage. I believe that you and I agree in opposing polygamy, but we disagree on SSM. However, the "principle" you introduce beyond physical complementarity is, I believe, a statement of your own preference ("sexual exclusivity"), which is not shared by some in other societies. I happen to share your view, and I believe it properly applies to both SSM and HSM.
Your narrower view of marriage-which is limited to opposite-sex couples-carries with it socially destructive elements. Until the most recent cases, those same-sex couples that wished to remain together had to hide their preference and their exclusivity from others. In such a situation, it is not surprising that some gay persons have had unstable relationships. Social norms and legal risks make that outcome more likely than it is when the union is legally embraced. Even though Lawrence and Windsor provide support for permitting those who wish to marry someone of their own gender, substantial penalties still may follow for those who express honestly and openly their sexual preference. Notably, highly regarded teachers and administrators in Catholic schools have recently been fired under these conditions. The Catholic Church has the right to engage in that kind of discrimination (though the net result may be harmful to the Church and its schools), but I do not believe governmental bodies should discriminate in that way.
More important, perhaps, as you indicate in the final pages of your essay, you believe that state legislatures and Congress should be permitted-and perhaps strongly encouraged-to enact and enforce laws that block single and married individuals from buying contraceptive products (Griswold), from exercising any abortion rights (Roe), and from engaging in any sexual contact with a member of the same sex (Lawrence).
In this country, as in Nigeria and other countries, there are individuals in positions of power, including police officers, who are passionate about their desire to stop homosexual activity. There are others ready to abuse and demean those whom they identify as "gay." The Matthew Shepard murder reminds us that this element of society stands near the gates of legitimacy, and the recent debates in Africa on the advantage of using the death penalty for homosexual acts underscores the fact that activities unprotected by law are likely to generate "legitimate" coercion as well as vigilante violence.
I am sure that you would condemn vigilante behavior, but you seem insensitive to the reasonably clear implications of your support for Bowers v. Hardwick and your opposition to the majority opinion in Lawrence v. Texas. Justice Anthony Kennedy captures much of the argument for permitting and indeed encouraging marriage of same-sex couples, based on principles that you and I share:
When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought into question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.
I look forward to your further thoughts on this important issue.
PS: I would like to add a comment that may seem only tangentially related to our main subject. Even before Pope Francis was selected and expressed his concerns about his Church, I had concluded that the overwhelming emphasis of senior Catholic prelates on abortion and homosexuality as evils to be condemned was an error. The error is not, perhaps, that the Church continues to condemn such practices (as well as contraception), but that Church leaders have fought to penalize those with whom they disagree (for example, by denying communion to those who do not condemn abortion) while those same Catholic leaders embrace politicians who work aggressively to reduce the ability of poor children and others to survive.
In contrast with those Catholic leaders, who break bread with conservatives and share stories of the evils of abortion while they neglect those in poverty, Pope Francis speaks with sharp criticism of a free-market system that perpetuates inequality. The Catholic Church in the United States seems to me "caught up in a web of obsessions" (I borrow here from Francis's Evangelii Gaudium) in its inability to put a high priority on problems of the homeless and others in poverty. There are exceptions, as in Los Angeles and, for many years, in the South Bronx. But much of the public stance of the Church in America seems far from the "social justice" described in the Catechism of the Catholic Church:
There exist also sinful inequalities that affect millions of men and women . . . Their equal dignity as persons demands that we strive for fairer and more humane conditions. Excessive economic and social disparity between individuals and peoples of one human race is a source of scandal and militates against social justice, equity [and] human dignity.
I do not expect that you need to defend, in this exchange, all the weaknesses that some may find in the attitudes and behavior of Catholic prelates and other leaders. But you are viewed as an important voice in expressing positions that derive from your Catholic upbringing and beliefs. I would like to see you and your colleagues who oppose same-sex marriage devote less of your energy to arguing that case and more to attacking the inequities that are persuasively set forth in the Catechism and to building alliances with those who devote their lives to that important concern.