George vs. Rauch on polygamy (Round 2):

Two weeks ago, I posted about an exchange between Professor Robert George and Jon Rauch on gay marriage and polygamy. The exchange between them was prompted by a recent document signed by hundreds of progressive academics and activists calling for health care and jobs for all, universal peace, an end to hunger, and the equal recognition of all relations among sentient creatures. George took this rather stale manifesto as fresh proof that gay marriage will lead to polygamy; Rauch disagreed. Since then, George and Rauch have had another go at it. You can read George's latest on the topic here and Rauch's latest here. Some of the exchange now consists of debaterish points about who-really-said-what, but there is still much of interest in it.

Since George mentions a column of mine in his latest response to Rauch, I'll say a little in response to him here. George, a prominent natural-law theorist and one of the best public speakers I've seen, understands the radical argument for gay marriage. It claims, as he notes, that "love makes a family" and that making any legal distinctions among people who love each other is unjustified. The love-makes-a-family ideology — which also marches behind the more individualistic "families of choice" banner — does indeed entail the recognition of many forms of relationships, including same-sex couples and polygamous/polyamorous groups, since all may love each other. George concludes that this love-makes-a-family premise "is central to any principled argument" for same-sex marriage.

George thus mistakes the most open-ended argument for gay marriage as the one necessary argument for gay marriage. This is a debater's ploy. One could do the same thing arguing against almost any position. For example, I could say that support for restrictions on abortion will lead to restrictions on the use of contraceptives and to the prohibition of abortion even in cases of rape or threat to the mother's life. After all, that is what many abortion opponents have said publicly and the logic of their opposition to abortion (that human sex is for reproduction) must necessarily be attributed to the whole anti-abortion cause. It is, we might say, "central to any principled argument" against abortion.

So while George understands the most open-ended argument for gay marriage — the "radical" one, as he and Rauch refer to it — it does not appear that he has taken the time to understand more careful and restrained arguments for gay marriage, like those advanced by Rauch himself. (George acknowledges not having read Rauch's excellent short book, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.). I have tried, much less elegantly than Rauch, to make a similar limited and cautious case for gay marriage on traditionalist grounds. There are many, many others who have done so as well, going back to Andrew Sullivan's pathbreaking article for The New Republic almost two decades ago making a conservative case for gay marriage. I won't repeat the substance of these arguments here, but suffice it to say they do not easily lend themselves to support for polygamy; they certainly involve more than saying simply, "love makes a family."

I adduce these examples not because I think George will be persuaded by them; I am sure he will not be. He is the kind of writer who cannot even bring himself to type the words "same sex" and "marriage" together without scare quotes. I give these examples because he must know that the radical case for gay marriage is not the only one, or the necessary one.

George complains that Rauch, I, and others have not made what he calls "principled" arguments about why the recognition of same-sex marriages does not entail the recognition of polygamous ones. Instead, we have made what he calls "pragmatic" and "prudential" arguments, emphasizing differences between SSM and polygamy in terms of their respective histories, expected effects on society and marriage, and predicted benefits to the people involved. Notably, George doesn't say that these prudential arguments are wrong; he even concedes that some of them are "strong." In the sense that I think George means "principled" he's probably right that we haven't made principled arguments against polygamy; but his sense of principle is a very specialized one coming from a modern strain of natural-law argument.

When you read modern natural-law writings, you find that by "principle" in the context of the debate over marriage, something like this is meant: "Marriage must be between a man and a woman because only they can procreate; as for sterile male-female couples, they are included because they can have sex of a reproductive kind." Sex "of a reproductive kind" is sex that involves a penis and a vagina, even if it can produce no more babies than could a male and a male or a female and a female. (The argument is longer than this, of course.) The conclusion of the argument is embedded in the "principle" and then offered as if it's an argument.

In his scholarship, George has asserted that male-female marriage (and no other kind) is a good in itself; it is not a good because it is instrumental to the attainment of other goods, like pleasure, expressing feelings, or even procreation. In an article co-authored with Gerard V. Bradley, George has written that male-female marriage, and only male-female marriage, has an "intrinsic value" that "cannot, strictly speaking, be demonstrated." "Hence, if the intrinsic value of marriage . . . is to be affirmed, it must be grasped in noninferential acts of understanding." George and Bradley, Marriage and the Liberal Imagination, 84 Geo. L. J. 301(1995). This "noninferential understanding" that "cannot be demonstrated" is unavailable to some people, argue modern natural-law theorists. Bradley adds that, "In the end, one either understands that spousal genital intercourse has a special significance as instantiating a basic, non-instrumental value, or something blocks that understanding and one does not perceive correctly." Gerard V. Bradley, Same-Sex Marriage: Our Final Answer?, 14 Notre Dame J. L. Ethics & Pub. Pol'y 729, 749 (2000).

This amounts to saying: "Same-sex marriage is not 'marriage' because only male-female marriage can be 'marriage.' Trust me." The modern natural-law argument against same-sex marriage at bottom thus appears to rest on revelation of some pre-cognition reality to the initiate and only to the initiate. This seems to me very close to saying that marriage just is the union of one man and one woman and cannot, no matter the arguments, be defined any other way. Same-sex marriage is always same-sex "marriage." Thus, for George as for other natural-law writers, every attempt to expand marriage beyond their "principle" is mere pragmatism and prudence, and as George puts it, "lets the cat out of the bag."

But advocates of a logical slide to polygamy need to show the necessary "principle" uniting the causes of same-sex marriage and other unions, like polygamous ones. Yes, you can imagine such a principle ("love makes a family") and even find support for it in slogans and in the writings of some academics and activists who say they favor gay marriage but also favor many other reforms. The manifesto that has George so excited actually says very little about polygamy (I missed the one oblique reference on a first read), but prominently calls for an end to "militarism," and repeatedly for a wide range of government social-welfare measures. Must gay marriage advocates who didn't sign the manifesto produce position papers and principles against state-controlled universal health care, too? Same-sex marriage is no more necessarily tied to polygamy than it is to all of these other proposals.

And when it comes to crafting public policy, why don't pragmatic and prudential considerations count as serious arguments? If same-sex marriage will benefit the individuals involved, any children they're raising, and their communities, all without plausibly harming marriage or any existing marriages, does this not matter as against a claim that a conclusory principle stands in the way? All of these claims are contested, of course, but the point is that we should be debating them.

And if polygamous/polyamorous marriage raises a host of different questions about harm, practical administration, and about historical experience, none of which depend necessarily on how we've resolved the debate about gay marriage, why must gay-marriage advocates definitively address it?

The way we frame the debate about gay marriage matters not just for the ultimate outcome, but for the shape and attributes of that outcome. Those of us who have been making a conservative case for gay marriage do so, fundamentally, because we believe in marriage. We do not want to see it harmed and we do not think that this reform means every proposed reform of marriage, including potentially harmful ones, must be accepted. Ironically, George and the Gang of 300 manifesto-writers agree that gay marriage means anything goes. I don't expect that George will hold to that position when gay marriage is actually recognized (indeed, he'll strongly resist the supposed slippery slope to polygamy then), but the damage he is doing now by making a tactical alliance with them and arguing the line cannot be held will not have been helpful.

UPDATE: Maggie Gallagher has now added her views to this discussion, in a post at Marriagedebate. I have significant disagreements with Maggie about gay marriage and how radical a change it would be, see here, and therefore with some of the points she makes now. I also think she overstates the influence of the manifesto writers on actual national family policy. They have an entire agenda on family law (not just gay marriage), and a host of other matters, but I see very little constituency for many of the changes they advocate and very little legislative or judicial movement in their direction. The forgotten causes of academics and activists fill whole graveyards of ideas.

However, I am pleased to have Maggie acknowledge that if procreation is the principle that keeps us from SSM it is not a very good principle for keeping us from polygamy. Oddly, the constant emphasis of some gay marriage opponents on procreation as the be-all-and-end-all of marriage opens the door to arguments for polygamy. It is this reductionist opposition to gay marriage that risks the logical slippery slope.