Robert George's recent piece in the Wall Street Journal, "Gay Marriage, Democracy, and the Courts," contains both sense and nonsense-but more of the latter.
George, a Princeton professor of jurisprudence and founder of the American Principles Project, is a preeminent conservative scholar. In the op-ed, he considers the federal lawsuit challenging California's Proposition 8 and claims that a U.S. Supreme Court ruling in favor of marriage equality would be "disastrous," constituting a "judicial usurpation" of popular authority and inflaming the culture wars beyond repair.
First, the good points: George is quite right to insist that the Court's role is to interpret the Constitution, not to make policy. He's also right to argue that marriage law has been, and should be, tied closely to the needs of children. And he exhibits a refreshing "don't panic" attitude, asserting that "democracy is working"-although by democracy, he seems to mean only voter referenda, and not our more complex representative system, with its various checks and balances. On the latter, broader understanding, I'd agree that "democracy is working:" in the last year, five additional states have embraced marriage equality.
But the misunderstandings in George's piece are legion.
(1) George provides a lengthy analogy with the 1973 Supreme Court decision Roe v. Wade, which recognized abortion rights. But while this analogy may be relevant to the culture-war angle, it says absolutely nothing about the legal merits-since rather different issues were at stake in Roe.
What's more, it's not even clear how relevant it is to the culture-war angle. Most abortion opponents believe that abortion involves large-scale killing of innocent babies. Compare that to Adam and Steve setting up house in the suburbs. Whatever your view of homosexuality, there's no comparison in terms of moral urgency.
(2) George also considers-and summarily rejects-an analogy with the 1967 Loving v. Virginia. He writes,
"The definition of marriage was not at stake in Loving. Everyone agreed that interracial marriages were marriages. Racists just wanted to ban them as part of the evil regime of white supremacy that the equal protection clause was designed to destroy."
Seriously? Perhaps "everyone agreed" that they were marriages in some sense-as one could say equally about same-sex marriages-but they certainly didn't agree that they were valid marriages. When the Loving trial court judge declared, "The fact that [God] separated the races shows that he did not intend the races to mix," he expressed the widespread view that interracial marriage violated a divinely ordained natural order.
George's reference to the "evil regime of white supremacy" is also telling. In order to undermine any analogy between racial prejudice and homophobia, right-wingers often paint all those who opposed interracial-marriage as angry KKK types. But most opponents of miscegenation sincerely believed that the Bible condemns it, that it's unnatural, and that it's bad for children. In other words, they cited the same "respectable" reasons as modern-day marriage-equality opponents.
That these two groups cite the same reasons doesn't show that their arguments are equally bad or their motives equally flawed. It does show, however, that religious conviction doesn't secure a free pass for discrimination, and that friendly, well-intentioned folks can nevertheless be guilty of bigotry.
(3) George, a noted natural-law theorist, asserts that marriage "takes its distinctive character" from bodily unions of the procreative kind. By "procreative kind," George doesn't mean that procreation must be intended, or even possible-oddly, sterile heterosexuals can have sex "of the procreative kind" on George's view. He means penis-in-vagina. According to George,
"This explains why our law has historically permitted annulment of marriage for non-consummation, but not for infertility; and why acts of sodomy, even between legally wed spouses, have never been recognized as consummating marriages."
"Historically" is the key word here-as in "not any more." There's a reason consummation laws have been almost universally discarded (and were seldom invoked when present). Such laws reflected, not the law's majestic correspondence with Catholic natural-law doctrine, but an outdated mixture of concerns about male lineage and female purity.
(4) Finally, George asserts the standard false dilemma: Either accept the traditional natural-law understanding of marriage, or else have no principled basis for any marriage regulation:
"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."
No principled basis? How about the fact that polygamy-which historically is far more common than monogamy-is highly correlated with a variety of social ills? Or that the stability provided by long-term romantic pair-bonding is good for individuals and society-far more profoundly than typical "friendships"? Or that the state legally regulates important contracts of all sorts, and the commitment to "for better or worse, 'til death do us part" is a pretty important contract? Here as elsewhere, George seems incapable of recognizing any principles beyond those prescribed by a narrow natural-law theory.
Ultimately, the trouble with George is that his theory-which is supposed to be rooted in "nature"-is in fact divorced from reality. The reality is that gay people exist, fall in love, pair off, settle down, and build lives together-sometimes with children, often without. When we do, we seek the same legal protection for our relationships that other Americans take for granted. If the denial of such protections is not an appropriate subject for judicial scrutiny, I'm not sure what is.
7 Comments for “Robert George’s Reality”
posted by Throbert McGee on
Finally, George asserts the standard false dilemma: Either accept the traditional natural-law understanding of marriage, or else have no principled basis for any marriage regulation:
Thank you for this, Prof. Corvino. I don’t always agree with you, but this one sentence immediately took me back to being a Catholic teenager mowing the lawn on weekends after CCD (“Sunday School”) and seething with anger over the latest lesson illuminating the ramifications of “Thou shalt not commit adultery” and “Thou shalt covet thy neighbor’s wife.”
Because it was apparent to me even then that 80% of everything the Catholic Church taught about anything remotely related to human sexuality was a long parade of logical fallacies whose formal names I didn’t in all cases know yet, but that I had intuited just by being a smarter than average kid. I did know, from being a high school Latin geek, the word “Procrustean,” and it was the word that came into my head one day to describe Catholic teachings on sexuality, as I was mowing the lawn. And it outraged me to the point of driving me out of Catholicism altogether, by the time I started college, that Vatican theologians and natural-law theorists like George push their Procrustean nonsense and then expect to be patted on the backs for their intellectual prowess just because they couch their bullshit in polysyllabic Latinisms.
What frauds!
posted by TS on
George indeed strayed far from his simplest argument to the point of spouting any nonsense to support his position. His simplest argument is the only one I agree with, and it is enough for me to concur with his conclusion that the supreme court should not strike down state anti-gay marriage laws. The rest of his argument is 9/10ths bunk. Corvino already dealt with the bunk, so let me explain my concurrence with the conclusion.
The constitution grants the federal government a surprisingly small jurisdiction. There is no right to privacy in the constitution. I am not only pro-choice, I am pro-abortion. I would not only tell my state representative I don’t want him or her to vote to ban abortion, I would tell my friend that if she didn’t mean to get pregnant and doesn’t want to be a mother, to get an abortion. But there is no right to privacy in the constitution! The supreme court erred when it said there was. Likewise, the argument that letting gay people get gay married is a simple matter of “equal protection” is flimsy. To allow gay marriage would be a change in the law… a good change that should happen, but a change.
The federal Constitution specifies that all powers not listed as belonging to the federal government belong to the state governments or to the people. The federal government does not have any authority to set social policy in any situations except interstate and international. And there is nothing in the Constitution for the supreme court to use to force the federal government to recognize gay marriage even in those situations. Arguments to the contrary are rightly made but wrongly accepted.
posted by Throbert McGee on
But having gotten that rant off my chest, to the extent that Robert George recognizes same-sex civil unions as a valid “positive right,” although reserving marriage for the ideal of lifelong monogamous heterosexual pair-bonding — in other words, to the extent that he endorses the current status quo in California, after “Prop H8” — then I agree with him, and not with the apparent majority of my Rainbow Flag comrades.
posted by Stefano A on
“Ultimately, the trouble with George is that his theory?which is supposed to be rooted in ?nature??is in fact divorced from reality.”
Ultimately, the trouble with George is the same “trouble” as with most “natural law” theorists. The conflation of natural law with normative law. Treating them as if they are one and the same.
posted by tavdy79 on
“the argument that letting gay people get gay married is a simple matter of “equal protection” is flimsy” – TS
I think it’s an extremely strong argument – the strongest we have. When a straight person dies, their spouse automatically has certain rights and abilities relating to their lover’s property and corpse; these rights and abilities are denied to gay couples in most states, and can result in the survivor losing their home. The gay couples are denied equal protection of the law.
London, Amsterdam and other European cities have hundreds if not thousands of mixed-nationality couples where one partner is American and unable to sponsor their husband or wife for immigration because their homeland refuses to recognise their marriage. Again, these couples are denied equal protection of the law – whereas a straight mixed-nationality couple would have a choice of which country to live in, gay couples don’t. In some cases they may need to live in a third country to live together.
If a person falls ill, even with proof of power of attorney their same-sex partner may be denied the right to decide appropriate medical treatment or even the right to stay with the person. If there are specific medical needs, such as allergies or medical conditions, which the partner is aware of but blood relatives (who may be estranged) aren’t, that can result in serious risks to the person’s well-being. To disclose those issues may be a breach of privacy for the couple. Yet again, gay couples are denied equal protection of the law.
And I haven’t even had to mention children so far.
posted by John on
Agreed. I prefer the argument made by Randy Barnett 6 years ago after the Lawrence decision of the “presumption of liberty” found in the 9th & 14th Amendments.
http://www.nationalreview.com/comment/comment-barnett071003.asp
The 14th Amendment argument is sound, but in addition to this is the 9th Amendment and Article IV of the Constitution. DOMA violates even the 10th Amendment by usurping power from the States and liberties from the People the Federal Government is not entitled to. If the Feds remained neutral and only recognized same-sex marriages from States where it is legal, that would satisfy the 10th Amendment, but we’d still have the problem of Art. IV as well as the 9th & 14th Amendments being violated.
posted by Regan DuCasse on
There may not be a privacy clause in the Constitution, but there SURELY is regarding protecting a minority from the tyranny of a majority. Homosexuals not only represent a minority in the national sense, but in the global and human history sense as well.
Gay people can’t be anything else, by choice or geography. This is a perpetual status, AND coupled with a legacy of discrimination and suspicion on them, a popular vote could hardly be called a ‘working democracy’.
When one enters a ballot booth, one’s party affiliation can be changed at will, so can one’s religious belief (none of these are enforceable) in our laws nor socially.
In ignoring this vital aspect of Constitutional protection, gays and lesbians are literally vulnerable to all kinds of OTHER exclusion from Constitutional access and rights.
The Bill of Rights does have a laundry list, but I can think of nothing more tyrannical against gay people than not being able to legally marry another gay person.
And the opponents out there simply don’t know or care that in using the anti discrimination document like the Constitution, to do just that and selectively…perverts it’s intention and purpose utterly.