Reply to George: IV. Parallels to Interracial Marriage

[This post is part of a series analyzing Robert George's widely-read article, "What is Marriage", which appeared on pages 245-286 of the Harvard Journal of Law and Public Policy. You can view all posts in the series here.]

Pages 247-250:  In which Robert George explains the structure of his article and makes a claim so outrageous it undermines his basic credibility.

George previews the rest of the article.

George splits his article into two parts.

Part I:

  • Defends the idea that that “the nature of marriage (that is, its essential features, what it fundamentally is) should settle this debate.”
  • “Shows how the common good of our society crucially depends on legally enshrining the conjugal view of marriage and would be damaged by enshrining the revisionist view — thus answering the common question, ‘How would gay civil marriage affect you or your marriage?’”
  • Explains why infertile opposite-sex couples can still have real marriages.
  • Accounts for why the state should enact any marriage law at all.

As for Part II:

But many who accept (or at least grant) our core argument may have lingering questions about the justice or consequences of implementing it. Part II considers all of the serious concerns that are not treated earlier…

All of them? Really? It takes a certain intellectual arrogance to claim with such certainty that you’ve even identified all the serious concerns around an issue, much less dealt with them.

Anyway.

George wanders off track.

At this point, we might reasonably expect Robert George to start explaining his answer to What is marriage. Instead, he detours into bans on interracial vs. same-sex marriage:

Revisionists today miss this central question — what is marriage? — most obviously when they equate traditional marriage laws with laws banning interracial marriage. They argue that people cannot control their sexual orientation any more than they can control the color of their skin. In both cases, they argue, there is no rational basis for treating relationships differently, because the freedom to marry the person one loves is a fundamental right. The state discriminates against homosexuals by interfering with this basic right, thus denying them the equal protection of the laws.

But the analogy fails:  antimiscegenation was about whom to allow to marry, not what marriage was essentially about; and sex, unlike race, is rationally relevant to the latter question. Because every law makes distinctions, there is nothing unjustly discriminatory in marriage law’s reliance on genuinely relevant distinctions.

But — no! Antimiscegenation was not about whom to allow to marry. Whites could marry; so could non-whites. Antimiscegenation was about whom one is allowed to marry. Just like bans on same-sex marriage.

According to George, race isn’t rationally relevant to what marriage is about, while sex is (actually, I don’t know whether by “sex” he means gender, or sexual activity, or both). But he still hasn’t proven that his procreative/conjugal view of marriage is the only permissible view:  until he achieves his own goal of establishing what marriage is, he can’t make claims about what’s rationally relevant to it. And so once again we him sneaking his unproven conclusion into his argument.

George tries sneaking it in again.

George continues:

Opponents of interracial marriage typically did not deny that marriage (understood as a union consummated by conjugal acts) between a black and a white was possible any more than proponents of segregated public facilities argued that some feature of the whites-only water fountains made it impossible for blacks to drink from them. The whole point of antimiscegenation laws in the United States was to prevent the genuine possibility of interracial marriage from being realized or recognized, in order to maintain the gravely unjust system of white supremacy.

By contrast, the current debate is precisely over whether it is possible for the kind of union that has marriage’s essential features to exist between two people of the same sex.

Oh, that slippery use of “conjugal” again. What does he mean? Not “marital,” because that would make his definition of marriage an empty tautology (marriage is consummated by acts related to marriage). Not “procreative,” because later he says that infertile couples can commit conjugal acts. He must mean something as clinical as insertion of penis into vagina.

Now, one thing is certainly true:  Opponents of interracial marriage never denied it was possible for blacks and whites to makes sexual unions — that’s what they were afraid of! But that doesn’t mean they understood such a thing to be marriage. And so here he is, again sneaking in his own definition of marriage:  “marriage (understood as a union consummated by conjugal acts).” But Professor George, you haven’t established that understanding yet. Nor, I think, did the opponents of interracial marriage ever assume such a thing.

George establishes the analogy while trying to wreck it.

In fact it’s easy to argue some of them did deny “real” marriage was possible between the races, even if they didn’t use George’s terminology. This is from original trial judge in Loving v. Virginia who convicted the Lovings for interracial marriage:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

The judge says interracial marriage goes against God’s intent, just as many opponents of same-sex marriage argue that a gay marriage cannot be a real marriage because it violates God’s.

The parallels don’t end there — in fact, we should thank George for pointing them out. Let’s just swap out some of his words, and it’s easy to prove that for many people:

The whole point of antimiscegenation law anti-same-sex marriage law is to prevent the genuine possibility of interracial marriage same-sex marriage from being realized or recognized, in order to maintain the gravely unjust system of white heterosexual supremacy.

Will George deny some people worry that marriage equality sends a message that being gay is just as acceptable as being straight? If so, that would just betray a lack of research. Of course, he might deny that such a thing same-sex marriage is even a “genuine possibility” (which would have him sneaking in his conclusion again) or that heterosexual supremacy is “unjust” (which would have him sneaking — oh, you know the rest).

George says two things that just aren’t true.

Moving on:

Revisionists do not propose leaving intact the historic definition of marriage and simply expanding the pool of people eligible to marry. Their goal is to abolish the conjugal conception of marriage in our law and replace it with the revisionist conception.

Stop. We are not expanding the pool of people eligible to marry, and this points up a key difference between same sex marriage on the one hand and marriage with animal or a child on the other. With same-sex marriage, no one new is being added to the pool. Our opponents’ insistence ignoring this difference shows up the glibness of their thinking when they posit a slippery slope to bestiality and child marriage.

George’s second-sentence above is flat-out wrong. Do marriage equality activists want to abolish the conjugal/procreative view of marriage. Most of us simply want to recognize the fait accompli that this procreative view is not the only view active in our laws and customs, and hasn’t been for some time. The revisionist/common conception is already in place — legally, culturally, historically, and in the everyday practice of marriage as it exists in the real world.

George gets slippery with “discrimination.”

Here’s where George really gets into trouble:

More decisively, though, the analogy to antimiscegenation fails because it relies on the false assumption that any distinction is unjust discrimination. But suppose that the legal incidents of marriage were made available to same-sex as well as opposite?sex couples. We would still, by the revisionists’ logic, be discriminating against those seeking open, temporary, polygynous, polyandrous, polyamorous, incestuous, or bestial unions. After all, people can find themselves experiencing sexual and romantic desire for multiple partners (concurrent or serial), or closely blood-related partners, or nonhuman partners. They are (presumably) free not to act on these sexual desires, but this is true also of people attracted to persons of the same sex.

So what’s going on with this paragraph? George accuses us of defending marriage equality by opposing every possible form of discrimination. Then he calls us out for hypocrisy based on our willingness to discriminate against people who want to marry children or beasts.

There is a mountain of error here, most of it because George shifts between two different meanings of discrimination.

  1. George errs in saying the analogy to miscegenation relies on the assumption that any distinction is unjust discrimination. We don’t need to assume — in fact, we don’t assume — that any distinction is unjust. Rather, we rely on the argument (not the assumption) that banning interracial and same-sex marriage both constitute unjust discrimination, and for much the same reason. As Olson and Boise make the case:  this particular distinction is harmful to many people and serves no good purpose. George might disagree with them, but Olson and Boies don’t require the assumption that every conceivable distinction is unjust.

In fact, this first sentence in George’s paragraph is so thoroughly wrong that it wounds the credibility of the whole article. I have to admit, though, some gay activists confuse the issue when they claim right to marry anyone they love and have the marriage recognized. That’s sloppy rhetoric (I don’t support the right to marry kids, for instance). But it’s not a cornerstone of our argument.

  1. George errs — or is at best misleading — when he says according to revisionist logic we discriminate when we ban unions that are incestuous, bestial, etc. It’s not just according to revisionist logic but according to George’s logic, too. From page 249:  “Because every law makes distinctions, there is nothing unjustly discriminatory in marriage law’s reliance on genuinely relevant distinctions.” In other words, we can all agree it’s discrimination, and most of us can agree it’s not unjust. There’s no gap here between the conjugal/procreative and the revisionist/common view.
  1. George errs — or is being slippery — when he drops “unjust” from his comments about discrimination between his first sentence and his third. The only way this paragraph makes sense is if he’s assuming revisionists view all discrimination as unjust. But for instance, it’s easy to argue that laws against pedophilia justly discriminate against pedophiles.
  • Pedophilia by its nature requires a participant who lacks the mental and emotional ability to give consent or act as an equal partner.

  • This means that sex with children is unjust exploitation of those children.

  • Therefore laws to prevent it justly discriminate against pedophiles.

I’m perfectly happy to support laws that discriminate against pedophiles, murderers, rapists, and thieves. It’s ludicrous to assert that any opposition to discrimination requires one to oppose all forms of discrimination, all forms of making legal distinctions.

Obviously, George is also being slippery with the term “discrimination.” Compare these two definitions:

  1. to make a distinction in favor of or against a person or thing on the basis of the group, class, or category to which the person or thing belongs rather than according to actual merit
  2. to note or observe a difference; distinguish accurately

While #2 allows the existence of “just discrimination,” #1, which reflects the term’s popular usage, makes it an oxymoron. George is sliding back and forth between technical definition and popular understanding in these sentences, and that adds no clarity to the discussion. Clearly, when we condemn bans on same-sex marriage because they discriminate, we mean the popular definition of discriminate. George is just being silly when he claims we mean it as opposition to making any sort of distinction at all.

We can discuss George’s “open, temporary, polygynous, polyandrous, polyamorous, incestuous, or bestial unions” at some other time. For now, it’s enough to point out that the first sentence of his paragraph is patently untrue, and any arguments built on that first sentence fail as well.

What does this add up to?

Let me summarize, and we’ll see that George is almost entirely wrong in this section.

  • George has no right to say gender is relevant to marriage while race is not, because he still hasn’t established his answer to What is marriage?

  • The bans on interracial and same-sex marriage are analogous:

    • The bans do not address who can marry, but whom one is allowed to marry.

    • Some banners think such marriages are contrary to God’s intent and cannot be “real” marriages.

    • Some banners hope to perpetuate their own societal supremacy at the expense of a minority.

    • Both bans constitute unjust discrimination in that they harm the targets of the law for no good reason.

  • Marriage equality proponents can still support bans on other forms of marriage as long as we can show they make just distinctions (e.g., bans on marriage with children may distress pedophiles, but the bans serve to protect children from exploitation and abuse; also our society has long held that children lack the capacity to consent to contracts, a distinction that long precedes the debate on same sex marriage).

Did I miss anything?

Next: George defends the existence of “real” marriage as something independent of the government’s laws on marriage, and I (sort of, kind of) agree.

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16 comments to Reply to George: IV. Parallels to Interracial Marriage

  • 1
    Hanoumatoi says:

    I think you should point out the hypocrisy in one of the first sentences up there more: “Revisionists today miss this central question — what is marriage?”  Given that he has entirely missed the question, and is just trying to draw distinctions which are inapt, or presupposing that he has adequately answered it.

  • 2
    Regan DuCasse says:

    The sad thing is, pedophiles, rapists and murderers CAN get married, ven while incarcerated. On’e criminal status isn’t a cause for discrimination. Pedophiles can get married, even to their victims.
    Mary Kay LeTourneau, a pedophile…eventually married her underage victim after her release from jail. He was old enough to marry by consent at that point.
     
    But it’s certainly true that CONSENT, and the ability to form a mutual bond, and also form a relationship of mutual and equal benefit and responsibility is the point. A gay couple, ISN’T different from an op sex one in that regard. In short, his assertions are assuming INFERIORITY in gay people and couples. He’s trying to reinforce this through sophistry, and it is as unfair to gay people as assuming inferiority and incompatibility in mixed couples.
     
     

  • 3
    Neil says:

    The big problem for all these marriage Cassandras is that we’re not talking about a hypothetical case. Unqualified, fully equal same-sex marriage is a reality in ten countries now. As far as I know, the legal adjustment was seemless in every case.
     
    It would appear evident and already proven that the so called revisionist idea of marriage is the commonly held one and that it is yet inclusive of any more conservative, conjugal, procreative, or just plain ejaculation into cervix idea.George does indeed present a false dichotomy.
     
    The principle form of marriage still today apprears to be about the melding of two individuals into a single entity for the purpose of handling income and property arrangements and any other ensuing familial responsibilities resulting from the coupling, like conceiving or adopting children. The love aspect is all very nice but I don’t see the state having much interest in it. The sacrements traditionally performed over a marriage ceremony have always been in addition to any change in status of two persons to form a union.
     
    The God stuff and casting fears about the fate of children are very useful for emotional appeal and demagoguery, however. It neatly circumvents a calm appreciation as to what is actually happening in the world.

  • 4
    mike/ says:

    in a nutshell, his argument is conjugal/procreative marriage is the only thing acceptable; maybe the solution should be anyone who marries and does not procreate, say, within 2 years the marriage is automatically null & void! and anyone who cannot procreate cannot marry, like anyone over the age of 70!
    how would this fit into his ‘discrimination’ argument?
    in his argument, it is not “whom to allow to marry…. [it] was about whom one is allowed to marry.”
    if they can’t procreate, then they should not be allowed to marry whom they want unless it fits his definition.
    could we complicate his argument more by asking about in-vitro or surrogacy? how would he explain that? would these be allowable exceptions? there is no conjugal/procreativeness to this so they shouldn’t be allowed using his logic.

  • 5

    Please e-mail me at the address I’ve provided for this comment.  I don’t understand what’s going on, but your messages are not getting to me at work.

  • 6
    Hanoumatoi says:

    Oh, if you could edit “George tries sneaking in it in again.” to remove one of the “in”s.

  • 7
    Bonefish says:

    Exactly.  This debate isn’t about whether or not to draw a line.  It’s about where to draw the line.  Do we draw it in a place that is logical and just?  Or do we draw it in a place that is arbitrary, based on superstitions, and does real harm to innocent people as a result?
     
    The slippery slope argument is almost comically weak; its very existence nearly serves (ironically) as a case FOR gay marriage.  Why?  Because if there were actually something wrong with gay marriage itself, nobody would have to bring up the harms of these other, hypothetical types of marriage.
     
    We ban child marriage because it is harmful to the child, what with the absence of consent and all.  If the only reason to ban gay marriage is to ban all these other hypothetical applications of marriage (bestial, pedophilistic, incestuous, etc), then PROBLEM SOLVED– just legalize gay marriage and REFRAIN from legalizing these other, actually harmful forms of marriage.  Just as we currently draw a line between gay and straight marriage, we are capable of drawing a line between gay and child marriage.
     
    And if there IS a reason to ban gay marriage, beyond the hypothetical existence of those other actually-harmful marriages, then let’s hear it!  But listing bestiality and pedophilia as reasons to ban gay marriage is just an aversion tactic.  It’s like banning people from owning kittens as pets because rattlesnakes exist, and those would make very dangerous pets, so no kittens!  If we allow one non-human species in the house, we have to allow them all!

  • 8
    MadHatter says:

    Dear Rob, thankyou so for taking Robert George on with such clear reasoning and for pointing out so succinctly where he fails. He certainly seem intimidating, and his credence in conservative circles is quite high as I understand it, but you have done a great job of giving me some ammunition with which to carry on logical and sustained conversations with people in my life who rely on his arguments, or arguments like his. Without your articles I would have been a little to afraid to address the topic, and then my friends/family (who I believe are well intentioned but are ignorant) never get to hear anything that might challenge them to grow, or to accept me. So please accept my sincere thanks!

  • 9

    [...] of how George’s use of the word “discrimination” is slippery on the blog Waking Up Now. Share on Facebook Share on Twitter More Sharing Options Print This [...]

  • 10
    Blinn Combs says:

    Again, generally quite good.  You’re right to press back on his characterization of the “revisionist view.”  At this point, I’d say that it is at best a straw man, for the simple reason that there’s no reason to think that proponents of marriage equality suppose any form of essentialism.  That said, just to be charitable, it’s worth emphasizing the structure of George’s argument here.  Remember that according to his characterization of the revisionist view, it treats the existence of a loving, committed relationship as the essential feature of marriage.  He simply points out, then, that if that is the *only* essential feature of marriage–and this is where the view derails–then it would obviously allow for many forms of marital relationship (i.e. incest, polygamy, etc.) which are commonly deemed either illicit or immoral.  Of course, this is a red-herring, since nobody’s making the claim that the existence of a loving, committed relationship is the *only* relevant feature of marriage.
    To put a slightly finer point on it, you could turn the tables on George:  If an opponent gave the same sort of strict reading to his “conjugal” view, that the raising of children and fostering of fidelity are the *only* things relevant to marriage, that view would face the *same* problem, since in theory one could foster these values via, e.g. plural marriage, or the marriage of a father to his step-daughter, etc.  What he has snuck in, then, without justification, is the idea that his conjugal view implicitly endorses all of those common legal restrictions on marriage.  His own essentialist framework, and especially the way he uses it with respect to the revisionist view, suggests that this path isn’t open to him.

  • 11
    Blinn Combs says:

    Quick follow up. You’ve missed a really important footnote to the quotation you treat.  George writes:

    Revisionists do not propose leaving intact the historic definition of marriage and simply expanding the pool of people eligible to marry. Their goal is to abolish the conjugal conception of marriage in our law and replace it with the revisionist conception.

    The second sentence is footnoted, though:  “Throughout  history,  no  society’s  laws  have  explicitly  forbidden  gay  mar?
    riage. They have not explicitly forbidden it because, until recently, it has not been thought  possible.”  This sentence is really key, because what it amounts to is the admission that our *law* has *never* enshrined any ban on homosexual marriage prior to the legislation of the last decade.  In fact, noticing this was a key part of the activism behind marriage equality.  So George’s comment about the revisionist goal is a non-starter.  There was no “conjugal” conception of marriage enshrined in our law–whatever our various preferences, predilections, or conceived possibilities might have been.  The law was simply silent on the topic.

  • 12
    Chairm says:

    Rob, I do not think that you have correctly read this part of the argument.
    For example, the meaning of discrimination is the same throughput the article. The question, what is marriage, grounds the context on consideration of just and unjust discrimination. Distinctions are discussed by way of determining which distinctions are relevant both within the conjugal view and within the revisionist view.
    You brought up consent as a relevant distinction and that was touched on in the discussion of both views.
    The experience of sexual or romantic desires is part of both views. As is consent. The consent part is clearly not simply a question of capacity to consent but the deeper query about that to which consent might be given. And not just the consent given by the direct participants but also the consent of society (which implicitly entails consent on behalf of children born to this generation, in the conjugal view though perhaps not so much in the revisionist view). That goes to the discussion of goods and the common good.
    The desires part is very clearly the basis for the revisionist disagreement with the conjugal view. If such desires are the great equalizer then further distinctions are needed at the level of the foundational query, what is marriage, before the positive law is brought forth in terms of what would be just and unjust discrimination.

    When discussing plural marriage the presence of adult consent is assumed. Likewise with adults who are related (to whatever degree). If sexual desire is also present then is the issue refined to a question of banning types of real marriages? If yes, then, that starting line needs to become much brighter than it has been in the revisionist vew.

    The interracial marriages were real marrages but they were outlawed. How do we know these were real marriages? The question was not decided on the basis of sexual desires. The basis was not merely a set of distinctions between racialist categories but rather more deeply the basis was the supremacy of racist identity politics. That made the ban on real marriages a concrete instance of unjust discrimination. But this did not go to the query, what is marriage?

    It did entail societal consent and not simply the consent of the participants. It did so both during the ban and after the abolition of that ban. The right to marry pre-exists the law of any given society. That would be the foundation for the claim that the law recognizes real marriage and not entitled to use marriage for nonmarriage purposes such as white supremacy.

    The revisionist view would claim that there is a type of real marriage that is currently banned. At least there are some who are revisionists who make that claim. Some do not. Instead they would consider marriage to be a legal and social construct and so it is whatever the law says it is. Real marriage is only legal marriage and vice versa. Arbitrariness seems built in. And so the question of just and unjust discrimination is much weaker even if it holds some merit.

    Now, this is one of your blogposts in a series but I think, having read the entire argument and your entire response to it, that you have caricatured rather than accurately represented that argument and have correspondingly overstated your objections o the reasoning of that argument.
    Your enthusiasm for the topic is admirable. But in many ways you have not hit the target. I will make the time to blog about your series further at Opine Editorials.
     
    Cheerio,
    Chairm Ohn

  • 13
    Chairm says:

    I had no luck editing soI will correct here: in the third last paragraph “not entitled to use marriage for nonmarriage purposes such as white supremacy”.

  • 14
    Rob Tisinai says:

    Chairm, that’s a lengthy response, but not a sound one. You start off by disagreeing with my analysis of George’s multiple and slippery uses of the word discrimination, but you don’t address what I actually said. You simply assert your disagreement.
    Then you go on to contradict yourself — and George — thoroughly.  You say that societal consent is consent is a key facet of marriage, and you underscore that by saying, “Real marriage is only legal marriage and vice versa.” Obviously this contradicts George, who believes that marriage is a real thing, existing independently and apart from the laws that society sets forth around. And it also contradicts your own statement, “The interracial marriages were real marriages, but they were outlawed.” Unless you are saying that the relationship of an interracial couple could not be characterized as marital once it was made illegal — in which case, you’re back to contradicting George’s own view of marriage.
    I know you’re promising to write more on your blog, but that’s the third time you’ve made the promise. And every time you accuse me of caricaturizing George’s views, but you never specify how. Try a structure like this:

    Rob, you described George’s argument as “[insert quote from me]” but George actually said, “[insert quote from George].” Your description is inaccurate because [insert a careful analysis of how my description varies from what George said].

    Perhaps that will help me understand your arguments better, because as I’ve said before, I rarely understand them well. And, as I’ve also said before, that’s reflects poorly on one of us, though I imagine we’ll disagree about which one.

  • 15

    [...] IV. Parallels to Interracial Marriage [...]

  • 16
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