I have come across a truly bizarre debate about whether the State ought to recognize same-sex marriages. (Anti-SSM side here; pro-SSM side here and here.) What’s strange about it is that it occurs between some superbly credentialed people – people, presumably, who have soaked in the intellectual cutting-edge – but its terms are Neanderthalic. The dialectical strategy of the anti-SSM side was last current around the time of St. Anselm, and (even more egregious) the pro-SSM side is not up on its Geuss.
Start with the anti-SSM side. Its argument, familiar enough in the outline, is that marriage is not a social construct and so the relationships that count as marriage cannot be changed by law. What, then, is marriage? It is:
[A] pre-political form of relationship…a union of persons along every dimension of their being. As such, marriage is uniquely embodied and sealed in the coition of husband and wife. Our law historically recognized that, too. For coitus alone unites spouses along the bodily dimension of their being and is, like the relationship that it seals, inherently oriented to procreation.
Though you’d be forgiven for thinking otherwise, the suggestion is not that marriage is a relationship between a man and a woman for the purpose of having sex and raising children. While, it is ambiguously said, “[o]nly such bodily union and its connection to children provide principled grounds for core marital norms (exclusivity, monogamy, a pledge of permanence)” (emphasis added; note how obviously false, or, at least, unimaginative, this claim is; note, also, that it does not speak in favor of marrying any of its authors), the real distinguishing characteristic of marriage is the sex:
Marriage is distinguished from every other form of friendship inasmuch as it is comprehensive…[B]ecause our bodies are truly aspects of us as persons, any union of two people that did not involve organic bodily union would not be comprehensive.
Of course, organic bodily union = coitus.
[I]n coitus, but not in other forms of sexual contact, a man and a woman’s bodies coordinate by way of their sexual organs for the common biological purpose of reproduction. They perform the first step of the complex reproductive process. Thus, their bodies become, in a strong sense, one—they are biologically united, and do not merely rub together [!]—in coitus (and only in coitus), similarly to the way in which one’s heart, lungs, and other organs form a unity: by coordinating for the biological good of the whole. In this case, the whole is made up of the man and woman as a couple, and the biological good of that whole is their reproduction.
In short, the anti-SSM argument on offer has three lemmae. (1) Conceptually, only comprehensive interpersonal unions count as marriages. (2) A comprehensive interpersonal union is only achievable by coitus. (3) Coitus is only possible between a man and a woman.
This argument is carefully engineered to avoid a standard reductio of arguments that deny the possibility of same-sex marriage on the basis that it cannot produce children: what about sterile couples? The response this argument permits is that sterile couples can coordinate for the biological good of reproduction even though they fail to achieve it, much like “a stomach remains a stomach—an organ whose natural function is to play a certain role in digestion—regardless of whether we intend it to be used that way and even of whether digestion will be successfully completed.” Because it is the comprehensiveness of the relationship between man and wife – a comprehensiveness that is achievable through coitus even where it doesn’t result in children – that this argument flags, not the reproductive function of marriage per se, the sterile marriage counterexample fails.
There is a continuum of ways in which an argument can be confuted that ranges from internal critique to external critique. The pure internal critique shows that the argument entails something its proponents do not accept. The pure external critique demonstrates that the argument fails because it entails a falsehood, even though its opponents accept that falsehood. There are also middle cases that are neither fully internal nor fully external: for example, demonstrating that the argument implies something (false or controversial) that its proponents seem not to have considered at all. A nice, comprehensive, approach to attacking an argument (one that Robert Paul Wolff self-consciously deploys in an excellent paper (which I cannot now find) on Nozick) is to start with the pure internal critique and work one’s way outward. It’s not always the case you can find an argument bad enough to work over in this fashion, but I’m going to do it to this one.
II.B. A Pure Internal and External Critique
The pure internal critique is simple – erectile dysfunction – and I have two points to make about it. The first is that it clearly is a pure internal critique. Nobody pre-theoretically thinks that a man with erectile dysfunction, and so incapable not just of reproducing, but of joining coitus in the first place, cannot get married. Additionally – why this makes erectile dysfunction a pure internal critique – the anti-SSM argument on offer implies the contrary. (Recall: (1) “[m]arriage is distinguished from every other form of friendship inasmuch as it is comprehensive,” and (2) “any union of two people that did not involve organic bodily union would not be comprehensive.”)
The second point – which is, in essence, an external critique – is that there’s something instructively absurd about having to confute a conception of marriage by generating counterexamples involving our sex organs. It is jarring, and base, and ridiculous to have to raise (heh) the reminder that “people with erectile dysfunction can get married too” precisely because our concept of marriage has everything to do with being in love and nothing immediately to do with having sex. You can only get married if you can fuck is a schoolyard taunt utterable only by someone who doesn’t get (or is pretending not to get) what marriage is about.
II.C. The Middle Critique
The middle critique, in many respects the least persuasive (but also the one on which most ink seems to have been spilled), focuses on how lemma (1) (that “conceptually, only comprehensive interpersonal unions count as marriage”) is supported. It is supported via an argument that marriage isn’t a social construct because it is a “pre-political form of relationship.” But this is a total non sequitur. The concept marriage may extend to a “pre-political form of relationship” without its being the case that marriage isn’t socially constructed (in the sense that what the concept consists in at any given time depends on a complex syndrome of shifting social facts).
The pro-SSM side’s (external critique-y) response – “I don’t think that marriage is a prelegal reality. I think it’s just a construct that has developed over time, and that therefore can be changed by human beings if that seems best” – equally contains a non sequitur. Just because a concept is socially constructed doesn’t mean that humans can consciously coordinate to change it. To be sure, humans could resolve to use a word that denotes some concept (e.g. “State”) to refer to another concept. But this would not change the concept of State – that process occurs over time as we emphasis different aspects of the State and deemphasize others. (Raymond Geuss makes this point well in History and Illusion in Politics.)
The proper response is that the fact that the concept marriage is socially constructed (in the sense I specified) means that indiscriminately adverting to how history has treated marriage is a lousy way to adduce evidence for a particular conception thereof. Thus, this – “our civilization (like others) has long recognized a human good with just these contours. Consistently and for centuries, our law (a) required coitus—and accepted no other act—for the consummation of any marriage, but (b) never treated infertility as an impediment to marriage” – loses its force when the reality of “concept-drift” is recognized. Because the anti-SSM argument does not directly consider the arguments for and against “concept-drift,” pointing to concept-drift amounts to proffering a middle critique.
(But notice, why I say this middle critique is least persuasive, that it at best entails that some of the evidence adduced by the anti-SSMers is inapposite. Unlike the internal and external critiques, it does not directly contradict the anti-SSM conclusion.)
There are other points to be made about the general form of anti-SSM argument I’ve considered. One, which builds from the insights of the middle critique, is that the fact that we can intelligibly disagree over whether to permit same-sex couples to get married means that giving such permission isn’t a conceptual impossibility (by contrast, nobody disagrees over whether to permit same-sex couples to become Ireland). And Koppelman – the pro-SSMer – makes some excellent points about what motivates anti-SSMers. But the bottom line is that even the most epicyclically sophisticated biological argument against same-sex marriage is a non-starter.