Monday, May 23, 2011

And They Shall Be One Flesh: Why Robert George’s “What is Marriage?” May Falter

And They Shall Be One Flesh: Why Robert George’s “What is Marriage?” May Falter


In a Winter 2010 Harvard Journal of Law and Public Policy article, Robert George and co-authors defend the conjugal (man/woman) view of marriage.  The article asserts that same-sex pairings can’t be real marriages, though infertile man/woman pairings may. The authors’ justification centers on the fact that only men and women can engage in vaginal intercourse.  Below, I analyze the soundness of this defense.  This paper's main contribution is to highlight weaknesses in the defense of conjugal view which have not been identified already by Kenji Yoshino and Andrew Koppelman.  Notably, I point out the problems with the authors’ claim that vaginal sex is oriented toward reproduction.

I.       Introduction
II.    Summary of “What is Marriage?”
III. And they shall be one flesh
A.    Organic bodily union
B.     Reproduction
C.     The “biological purpose” problem
D.    The function of sex: reproduction is not a lone target
E.     The function of sex: attachment outcompetes reproduction
IV. Gender, infertility, “an act of the kind,” divorce, and consummation problems
A.    Gender (biological sex)
B.     Infertility
C.     “An act of the kind”
D.    Divorce
E.     Consummation
V.    Conclusion
I. Introduction

In the winter of 2010, well-known conservative scholar Robert George (“this country’s most influential conservative Christian thinker[1]”) released an article entitled “What is Marriage?” in the Harvard Journal of Law and Public Policy[2].  This landmark article opposing same-sex marriage (SSM) has been hailed as “outstanding work” and “one of the BEST arguments there is out there,[3]” amongst other praise[4] by organizations such as the American Principles Project, First Things, and the Love and Fidelity Network.  George and his two coauthors (throughout the paper please assume I refer to all three authors, though I sometime only write “George”) explicitly take on arguments by pro-SSM scholars Andrew Koppelman and Andrew Sullivan.  They also engaged in important post-publication debate about their article with SSM scholars Kenji Yoshino[5] and Andrew Koppelman. 
This paper will:
1)      Summarize key parts of George’s seminal 41-page article
2)      Critique the soundness of the article’s defense of conjugal marriage
II. Summary of “What is Marriage?”
In part I, the authors defend the conjugal view of marriage, which the authors expound as the union of a man and a woman who make a commitment to each other which is inherently fulfilled by rearing and bearing children together, among other elements.[6]  The authors claim that the conjugal view requires organic bodily union,[7] and excludes same-sex couples. 
III. And they shall be one flesh
We now go to the author’s most central and important deduction: that real marriage is only between a man and a woman because only they can and do engage in vaginal intercourse. 
A.     Organic bodily union
The authors’ argument relies on the concept of “organic bodily union” (“bodily union” comes up 27 times in the paper).  At first glance, it might seem like there is no such thing as bodily union: even in coitus, there are two very distinct and separate bodies merely in close proximity.  (By contrast, bodily union does take place on occasion when two embryos fuse before implantation in the uterine wall to form a single embryo, or when egg and sperm fuse during syngamy.)  A greater number of cells are in close proximity when two people spoon or when two lesbians have sex than in many forms of vaginal intercourse- thus, it cannot be closeness or organic merging that constitutes their union.    I think the authors escape these criticisms.  Rather than arguing for a merging of tissues, proximity of cells, or syngamy, they argue for a union of purpose evidenced by coordination for a biological good: reproduction. 
B.     Reproduction
But two men or two women cannot achieve organic bodily union since there is no bodily good or function toward which their bodies can coordinate, reproduction being the only candidate.[8]
But how well do the authors understand reproduction, the function towards which they posit bodies coordinate during vaginal intercourse?  The authors’ contention relies upon the unique orientation of heterosexual sex to reproduction[9]; thus, the argument may fail if the biology of reproduction reveals a contrary reality. 
George’s view of reproduction may be overly simplistic, and may inappropriately stigmatize those who use reproductive technologies to reproduce.  First, they claim that each child has only one mother and only one father: “Children, likewise, can have only two parents— a biological mother and father, there are two sexes, one of each type being necessary for reproduction.” [10]  This leads to the unpalatable conclusion that adopting couples are not true parents.[11]  Putting aside the extant reality of children that result from fusion[12], it will very likely be possible soon for an individual to have three biological parents[13] (e.g. one person contributes an oocyte “shell,” a second a haploid nucleus, and a third the second haploid nucleus).  It is also likely that the technology to support asexual reproduction (e.g. cloning) and same-sex-two-biological-parent reproduction (as was successfully demonstrated in a mouse with two and only two biological parents, two male mice, just a few months ago[14]) will soon be available.  Already some same-sex male couples mix their sperm, fertilize a donated egg, and implant the zygote into a female friend who agrees to gestate the child, resulting in the type of three parent situation courts often struggle with[15].  Because male somatic cells contain all the genetic instructions needed to make a human egg[16], same-sex male couples may be able to reproduce using merely a cheek swab from one partner and sperm from the second.  It is also feasible to fuse two sperm (one from each partner), then place the resulting diploid nucleus into an enucleated totipotent stem cell from one of the men.  Are minority reproduction methods like these “morally illicit,[17]” and do they operate to bring classes of couples in or out of “real marriage?”
Presume for a moment that the authors could establish that organic bodily union is characterized by its orientation toward reproduction as a biological good.  If reproduction is the good aimed for, then polygamy is, for many men, more justified than the sexually exclusive monogamy the authors support.  Women ovulate only once a month, and are normally capable of only one pregnancy per nine months.  The “natural dynamism” of the romantic and sexual drive in many male brains, by contrast, is toward multiple partners no less than the natural dynamism of their always-ready-to-inseminate genitals are toward reproduction via vaginal intercourse with many women during the fertile period of each woman’s cycle.  Polygamy and promiscuity result in an elevated likelihood of successful reproduction, and a man can comprehensively engage in organic bodily union with many women (in sequence).  The authors are partly correct:
Such a union can be achieved by two and only two because no single act can organically unite three or more people at the bodily level or, therefore, seal a comprehensive union of three or more lives at other levels. Indeed, the very comprehensiveness of the union requires the marital commitment to be undivided—made to exactly one other person; but such comprehensiveness, and the exclusivity that its orientation to children demands, makes sense only on the conjugal view.[18]
Yes, sex is only between two people at a time.  However, as many cultures and religions have recognized, men can form marriages with multiple women, even though the women are not united with each other.  Many in America today practice serial monogamy; perhaps “multiple monogamy” would describe those who marry multiple people in concert rather than in sequence (some Mormon apologists take this approach to justify the claim that God has consistently endorsed only conjugal marriage, despite the LDS practice of polygamy).  There is an obvious link between multiple monogamy and children.  A similar argument could be that coitus’s natural dynamism is oriented toward rape, since ejaculation, not willing female participation, is the only behavioral element necessary to reproduction.  Otherwise, why not require a voluntary act from both partners, such as by employing the clitoris in facilitating reproduction or tying female orgasm to reproduction?  Ultimately, there is irony in using reproductive-oriented vaginal intercourse to defend sexually exclusive monogamy.
Let’s return to the question of whether reproduction is properly labeled as the purpose of vaginal intercourse.  The vast majority of coitus incidents are non-reproductive, as females are typically only fertile one-three days out of every 28-day cycle (and even the majority of intercourse during the fertile period does not result in reproduction).  At best, a tiny subset of vaginal intercourses (most narrowly, only the actually reproductive ones) are coordinated toward reproduction.  Some other animals restrict their mating behaviors more narrowly to the fertile period, suggesting an additional purpose for human sex (pair bonding and pleasure constitute two viable alternatives, since dopamine and the bonding chemical oxytocin are released during sex and, particularly, orgasm: more on this later).  Also, nature has made individuals capable of and interested in intercourse far beyond menopause, which terminates the possibility of reproduction (exception duly granted to the world’s Isaacs).  In any case, it is the union of egg and sperm which is proximally needed for reproduction: because a woman ovulates with or without sex, vaginal intercourse is neither sufficient nor necessary to the end of reproduction.  (If implantation is the reproductive “finish line,” rather than conception, then even fewer intercourse incidents result in reproduction, since many times zygotes are sloughed off during menstruation).  How, then, do the authors reach the conclusion that reproduction is the biological good towards which a man and woman are united during vaginal intercourse?      
C.     The “biological purpose” problem
The answer to this question is inadequately addressed by the authors.  The absence of this crucial syllogistic leap is, in my view, the most serious weakness in the authors’ argument. 
The authors may bifurcate (the “either/or fallacy”) by assigning a primary or sole purpose to biological acts or organs in the first place (such as by claiming that coitus is for reproduction, analogizing to the stomach’s purpose being to digest).  Must a biological act or structure have one and only one purpose?  From the article: 
But what is it about sexual intercourse that makes it uniquely capable of creating bodily union? People’s bodies can touch and interact in all sorts of ways, so why does only sexual union make bodies in any significant sense “one flesh”? Our organs—our heart and stomach, for example—are parts of one body because they are coordinated, along with other parts, for a common biological purpose of the whole: our biological life. It follows that for two individuals to unite organically, and thus bodily, their bodies must be coordinated for some biological purpose of the whole… reproduction.[19] 
Some biological realities have no apparent purpose.  The human appendix and the inexplicably long penis[20], for instance, seem inefficient at best, despite the authors’ contention[21]:
[N]atural organs are what they are (and thus have their natural dynamism toward certain functions) independently of what we intend to use them for and even of whether the function they serve can be brought to completion.[22]
Many biological structures and actions, on the other hand, have multiple purposes.  Skin, for instance, both regulates body temperature and prevents invasion by foreign agents into the body’s internal environment (amongst yet other functions, such as providing sensation and reducing desiccation). I call this the “biological purpose” problem - which of the outcomes does one designate as "the" purpose of a structure or act, and what is the basis for that classification?
Perhaps purpose/function is merely the set of proximal consequences of the behavior or structure.  However, natural selection often adapts components used for function A into a novel use, function B.  Kenneth Miller describes, for instance, how snails might have evolved a rough type of blood clotting.[23]  Hemolymph components used to transport oxygen, waste, and nutrients were adapted for aggregated use as clots to plug breaches in the internal fluid barrier.   One could ask whether the function of the components is (1) to transport, (2) to clot, (3) to transport and to clot, or (4) neither.  The authors draw a distinction between the purpose of man-made artifacts and the purpose of natural objects.[24]  However, the authors’ essentialist view[25] fails to account for the key difference between man-made objects that we assign purpose to and natural objects.  Natural selection, which formed our bodies and behaviors, lacks intention and thus can recognize no functions permanent or “essential” to natural organs or behaviors.  Thus, I would somewhat agree with the authors that a penis and vagina do not lose their orientation toward procreation when they can no longer cause conception, but for a different reason: because there is no natural essentialism or orientation of those organs to reproduction in the first place.  Unlike the authors’ composition analogy, “To be a sample of the kind of clear liquid found in lakes and rivers (i.e., water), a substance must be composed of H2O molecules—though it need not boil at 100 °C (since boiling point varies by altitude),” natural organs need not fulfill any particular function, or indeed any function at all, to exist as such.  To return to the author’s example, the stomach functions as a cushion for surrounding organs, a shield for the heart from some external harms, a part of the circulatory and lymphatic systems, and as a filter for potential poisons in addition to being a stop for food in its long journey through the alimentary canal.  It is difficult to determine which of all these, if any, is a primary or essential purpose of the stomach- especially if the stomach eventually loses its digestive function, much as the blood components above eventually lost their transport function[26].  If measured by the frequency that an organ is applied to a particular function, then a penis[27] is perhaps foremost a urinary instrument and second a release canal for excess semen, and only in distant third a conduit for a reproductive payload.  A vagina may become foremost a canal for menstrual sloughing and secondarily an instrument of pleasure, and third a conduit for reproductive material.  In any case, it is unclear what reasoning the authors use to support both (1) the contention that coitus has a primary/single function it is oriented toward and (2) how the authors chose the reproductive function from amongst competitors (more on this subject of competitors in the next section). 
How about human completeness?  The authors claim:
That sort of union is impossible in relation to functions such as digestion and circulation, for which the human individual is by nature sufficient. But individual adults are naturally incomplete with respect to one biological function: sexual reproduction.[28]
Most biological functions, and indeed all biological individuals whether they reproduce or not, are mere instruments in the selfish probability-based scheme of individual genes[29]- rendering the “completeness” of individuals difficult to ascertain.  If bearing and raising children invokes more costs than benefits to the bodies of its parents (sapping of resources and increased mortality risk the independent, genetically unique child will now affect), can reproduction be a biological good common to the parents as a whole?  Would it not instead be a biological evil common to the pair, but a biological good to individual alleles whose interests are advanced (called inclusive fitness) by sacrificing the bodies of parents to the extent that progeny’s chances of reproductive success are advanced?  Senescence (programmed cell death) and sexual reproduction are merely evolutionarily stable strategies for competitive success at the level of individual alleles.  Death, obviously, cannot be said to be a good or benefit to an individual.  However, the combination of reproduction and senescence, rather than the perpetual life our bodies would be capable of but for senescence, guarantees death for all.  Because offspring compete for resources with parent generations and because adaptation to environmental changes requires “rolling the genetic dice” more rather than less, reproduction is no more an individual biological good than is death.
The “whole” described by the set of genes found in {a copulating man + his female partner} is a world removed from the “whole” that is a human organism’s biological life.  In fact, the two whole’s have a substantial conflict of interest[30].  This distinction is crucial.  It is difficult to say how reproduction is common to the couple as a whole- the product of the roll of the dice we know as sexual recombination, a genetically distinct person, is severable from the body (e.g. IVF), and always takes place away from the body of the man[31] and after ejaculation.  Neither parent’s body (and thus neither parent) is directly benefitted from the experience, since a novel body is thus created (though arguably at least one of their genes might be benefitted, if a telos can be ascribed to a gene).  The whole loses half its genetic material (goes from a combined 92 chromosomes to a mere 46) and both unique allelic sequences- which is nearly all that differentiates an individual from the Schnauzer next door (or from his host, Neighbor Jones).  No tissue created by the body is as different from somatic (self-cells) as gametes- yet this is the only part of an individual that goes into the reproduction race.  The reproduction result will compete with the whole for resources and increase the whole’s collective or individual risk of death during and after pregnancy.  Though reproduction benefits the set of genes found in “one flesh,” or the aggregate genome of a copulating female and her male partner, it is distinctly disadvantageous to the good of either or both individuals.[32]  Thus, reproduction may not suffice as a basis for organic bodily union.
Even if adult human biological completeness could be established, the authors’ claim that individual adults are naturally complete with respect to only one biological function may be factually erroneous.  Individual adult women, for instance, are naturally incomplete with respect to one additional biological function: breastfeeding.  But wait- breastfeeding is necessary for the baby, and not the mother, whereas adult humans are independent except for when it comes to reproduction, right?  Individual adults need not reproduce to be complete if being complete means surviving with the potential for a reasonable degree of fulfillment- both adults who do and adults who do not reproduce invariably perish, and many live reasonably fulfilled and complete lives without reproducing.  Their potential children, on the other hand, traditionally rely on the union of one gamete from each of two parents- but then, an actual child traditionally relies on a mother for breastfeeding, which makes the mother’s act of breastfeeding as dependent as contributing a gamete shortly after vaginal intercourse.  Similarly, both men and women rely on a pheromone from the scalp of infants to induce temporary feminizing effects.  They rely on others to fulfill biological needs for the functions of touch and sex.  For some, reproductive promiscuity is as tailored toward human completeness as is marital fidelity.  Penultimately, women rely on pregnancy to initiate and manage neurological changes to a “mommy brain.”  Last, women rely on a baby to form an oxytocin/dopamine-induced mother-child pair bond neurochemically similar to the one which typically exists between spouses (women quite literally go through a romantic love phase with the baby, reinforcing the baby-mom bond through oxytocin and dopamine release associated with nursing, rather than sexual activity).  Other multi-party biological functions might be proposed here as well to further populate the list on non-independent biological functions begun by reproduction, breastfeeding, the mommy brain, infant pheromone-induced feminizing, touch, sex, promiscuity, and mother-child bonding[33].  All of these indicate goods towards which two (or more) people can experience organic bodily union. 
D.    The function of sex: reproduction is not a lone target
The authors state:
[A] husband and wife's loving bodily union in coitus and the special kind of relationship to which it is integral are valuable whether or not conception results and even when conception is not sought. But two men or two women cannot achieve organic bodily union since there is no bodily good or function toward which their bodies can coordinate, reproduction being the only candidate.  This is a clear sense in which their union cannot be marital, if marital means comprehensive and comprehensive means, among other things, bodily.[34] 
In the footnote, the authors debunk pleasure as a candidate alternative purpose:
Pleasure cannot play this role for several reasons. The good must be truly common and for the couple as a whole, but pleasures (and, indeed, any psychological good) are private and benefit partners, if at all, only individually. The good must be bodily, but pleasures are aspects of experience. The good must be inherently valuable, but pleasures are not as such good in themselves—witness, for example, sadistic pleasures.
This contention is problematic, since the authors earlier claim that the mind/ consciousness is integrated with, rather than inhabiting, the body.[35]  Also, because the authors intuit purposes toward which organs manifest natural dynamism[36], one might naturally ask what the clitoris’s purpose is, if not for partner-instigated pleasure[37]. 
Thus, in our example, 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. Something analogous is true of sexual organs with respect to reproduction.[38]
The homologous structure to the penis, this sexual organ does not aid in reproduction, but instead seems to be oriented only toward giving pleasure to a woman during intercourse with a man.  Because stimulation takes place partly from inside the vagina, this act is practically guaranteed to pleasure the man as well, in advance of ejaculation.  This results in a dependent good towards which the couple can coordinate (sexual pleasure), the prerequisite deemed necessary for the authors’ organic bodily union[39], wholly independent of any reproductive impact.  Dopamine (a pleasure neurochemical) release is associated with both man-man, man-woman, and woman-woman sex.  Regional brain uptake of glucose, imaged by fMRI, is associated with the report of experienced bodily pleasure.  Dopamine release is pleasurable because we have dopamine receptors in our brains and perceive a consequence of dopamine-receptor binding as pleasure, regardless of what induces the pleasure.  This reality contradicts the authors’ claim that “Pleasure does not have its own value, considered as a state of mind independently of its object; it shares in the moral quality of that object.’[40] Alternatively, the authors’ view of experience supports pleasure as bodily- especially marital, loving, intercourse-induced pleasure, which is never schadenfreude. 
The good of pleasure could be inherently valuable in one of two ways- first, by defining away “sadistic pleasures” as non-pleasures, thus salvaging pleasure as a viable purpose[41].  Second, one could acknowledge the limited utility that comes from sadistic pleasure, yet contend that, on balance, such is always net negative in utility because of the magnitude of harm the victim experiences in addition to negative consequences that accrue to those who derive the sadistic pleasure.  Alternatively, one could argue against reproduction as a universal good using similar reasoning, (1) reproduction-via-rape and (2) reproducing with intent to increase a woman’s chance of death via childbirth being two candidate illustrations.
Contrary to their assertion, pleasure is a bodily good toward which bodies can coordinate.  Attachment, which will be discussed next, is another competitor.  Even if reproduction is “more” the function or purpose of vaginal intercourse than competitors, the author’s claim that reproduction is the only good toward which a copulating pair’s bodies can coordinate is defeated.    
E.     The function of sex: attachment outcompetes reproduction
Attachment is an arguably superior alternative to reproduction as a function or purpose that coitus is oriented towards.  Oxytocin, often called the love hormone, is associated with a number of non-independent behaviors such as orgasm, social recognition, pair bonding, and sexual arousal.[42]  Like reproduction, oxytocin-caused attachment typically requires a partner.  Because our very bodies are built for love and attachment to a partner, “individual adults are naturally incomplete with respect to [this] biological function,” to borrow from the authors’ language.  Reproduction is not the only biological function that requires a partner.  Like reproduction, oxytocin-induced bonding is a frequent consequence of sex (a much, much more frequent consequence, in fact).  Like reproduction, oxytocin-induced bonding provides a source for norms of permanence and exclusivity.  Like reproduction, oxytocin-induced attachment is important to child welfare; reproduction gets the child into the picture, while attachment helps stabilize the bond between the couple raising the child (whether or not the raising couple is also the biological parent pair).  This is an important point, as the social science evidence the authors cite points to “intact homes” and “low conflict marriages” and “wedded parents” alongside biological parentage as important predicates of positive child outcomes.  Thus, “the marital relationship's natural orientation to children[43]may be due to the bonding outcome of sex, rather than or in addition to its reproduction outcome- and this route can include, rather than exclude, same-sex couples, from the point of view of at least a species of the conjugal view of marriage the authors support.  Pair bonding benefits the authors’ described whole[44], by magnifying the wholeness of the two.  To illustrate, look at how the author’s argument reads with “reproduction” replaced with “pair bonding:”  “Marriage, valuable in itself, is the kind of commitment inherently oriented to the bearing and rearing of children; it is naturally fulfilled by reproduction pair bonding. This orientation is related to the fact that marriage is uniquely embodied in the kind of act that is fulfilled by reproduction pair bonding: coitus.”  Sex results in oxytocin release much more regularly than it does reproduction; indeed, almost all sexual activity and orgasm results in oxytocin release in both men and women, which in turn facilitates the trusting, emotional intimacy, attachment, and bonding of the pair:
[T]wo people in love, when they collaborate in really wonderful sex, frequently do feel they’ve become one flesh in a significant (although metaphoric) fashion. They feel increased closeness, lowered barriers, and valuing the other as much or more than the self. For most couples, this fosters an important way in which the two do become one — the two people become a couple, the individuals become an “us.”[45] 
Thus, there is a strong case to be made that intercourse (whether same or opposite sex) is either pluralistically oriented or, if a primary purpose must be chosen, oriented toward bonding.  Either alternative vitiates the strength of the author’s claim, which only operates to exclude same-sex couples while including opposite-sex ones by relying on reproduction rather than bonding as the “function toward which their bodies can coordinate”[46] during sex. 
The authors write:
If human beings reproduced asexually, then organic bodily union—and thus comprehensive interpersonal union—would be impossible, no kind of union would have any special relationship to bearing and rearing children, and the norms that these two realities require would be at best optional features of any relationship. Thus, the essential features of marriage would be missing; there would be no human need that only marriage could fill.[47] 
Again, the human need for a pair bond would be filled by marriage even in a world of asexual reproduction.  What about attaching together to help in a hunt?  Humans need food, right?  Two-is-better-than-one reasoning says a pair is more likely to survive than an individual.  They can fend off an assailant in concert more effectively than alone, they can care for each other when sick, and stably rely on one another to problem solve the many threats to their survival that occur over a lifetime.  Some of these benefits decline when additional individuals are added. 
More significantly, though, our bodies are wired for, and generally need the object of all three built-in motivation systems: romantic, companionate, and sexual.  Only marriage lies at the confluence of the three human love drives: companionate (long term), sexual, and romantic.  Oxytocin initiates maternal behaviors and solidifies pair bonds in a way likely to stabilize a household.  Because rearing children is independent of bearing children in this hypothetical, and because as the authors assert low-conflict, stable married families rear children better than high-conflict, unwed, and single-parent homes, there may still be a relationship between a permanent, sexual, committed marital union and rearing children.  (Although admittedly the authors’ hypothetical presumes self-sufficiency of offspring).  Coincidently, this construct of marital union can include same-sex couples.
IV.       Gender, infertility, “an act of the kind,”
divorce, and consummation problems   

Here we address five related problems dealing with the consistency of the authors’ defense of the conjugal view.
A.     Gender (biological sex)
The conjugal view the authors support excludes many married couples from the institution (presuming, of course, that marriage is what is currently legally and socially recognized as such).  The authors included the sealing and renewing of their union with conjugal acts as a part of the conjugal view of marriage.  Thus, where one or both parties lack the requisite genitalia or control over the same such that coitus is impossible, theirs is not a real marriage, even though most people and the law regard them as married.  Examples include (1) a coitus-incapable minority of quadriplegic couples, (2) marriages where the male’s penis is absent due to injury, and (3) marriages between an androgen insensitivity syndrome individual and that individual’s spouse (where the vagina, penis, and/or clitoris developed abnormally or not at all). 
In this same vein, a reader is left to wonder which is a “real marriage:” an intersex (gender indeterminate) person and a man, or an intersex person and a woman?  Perhaps neither or both?  Would the determination turn on the intersex person’s sexual behavior, genitalia, gamete production, genes, neither, or some combination?  The revisionist view which merely adds same-sex couples to marriage holds more potential for answering these questions than the traditional one, as same-sex or perhaps even genderless pairings may be appropriately recognized as marriages.  Because it requires a male and a female, it is less clear how the authors’ conjugal view would or should resolve these questions, since some would classify at least some subset of intersex persons as being both male and female, while others would classify that same subset as neither male nor female.  This is a serious blow to the authors’ claim for the discernibility of real marriage- a difficulty not experienced by some competing constructions.
B.     Infertility
The authors ask: “[W]hat is it about sexual intercourse that makes it uniquely capable of creating bodily union? Coitus … the first step of the complex reproductive process.”[48]  Because infertility is often inherited (e.g. through a recessive allele frustrating meiosis), for at least some opposite sex couples that have intercourse, their union cannot be said to be inherently oriented towards reproduction.  Consider a postmenopausal woman seeking to marry: her infertility is a direct consequence of inherited senescence, and her marital coitus is not oriented towards reproduction, though pleasure and pair bonding persist as candidate bodily functions. 
[B]odily union involves mutual coordination toward a bodily good—which is realized only through coitus. And this union occurs even when conception, the bodily good toward which sexual intercourse as a biological function is oriented, does not occur. In other words, organic bodily unity is achieved when a man and woman coordinate to perform an act of the kind that causes conception.[49]
Might there not be other acts of the kind that causes conception?  The drive home by a woman which brings her gametes within intercourse distance of her male partner’s gametes, is another necessary-but-insufficient step in the reproductive process (example one).  The masturbation of a man to produce sperm used in IVF (whether by himself or via a male or female partner), the journey of a woman to the lab for egg extraction, and the act by a lab technician of injecting sperm into an ovum (examples two, three, and four) also belong on the list next to coitus.  Because all the genetic instructions needed to create a human egg are found in the mouth cells of an adult male, a cheek swab may soon join the list as example five[50]. 
If reproductive capacity is not necessary for the organic bodily union the authors describe, then might not mutual masturbation or anal sex by a man/woman or by two men fit the authors’ explanation for why infertile couples’ sex makes their union a real marriage? 
[T]he behavioral parts of the process of reproduction do not lose their dynamism toward reproduction if non-behavioral factors in the process—for example, low sperm count or ovarian problems [insert absence of an ovary here, the typical condition of males]—prevent conception from occurring, even if the spouses expect this beforehand. As we have argued, bodies coordinating toward a single biological function for which each alone is not sufficient are rightly said to form an organic union.[51]
If sex is oriented toward reproduction—which could be inferred by the fact that in males such ends in ejaculation of sperm, a necessary-but-insufficient component of reproduction—then anal sex, which necessarily requires two people whose parts fit, is no more nor less oriented towards reproduction than necessary-but-insufficient-intercourse by an infertile male and his female partner (be their intercourse anal or vaginal).  Anal sex is well evidenced historically[52] and has taken place in both man-man and man-woman pairings.  Like the vagina, the anus has multiple functions, and some of these cannot be solely individual any more than vaginal ones.  Anal sex requires a partner, and when it takes place between men, the “non-behavioral factor” that the receiving male’s germline cells (which contain all the genes needed for both a sperm and an egg) undergo spermatogenesis rather than oogenesis does not suffice to make the necessary-for-reproduction ejaculation lose its dynamism toward reproduction.  Similarly, because of their infertility, infertile couples’ sex (and indeed most sex by fertile couples outside day 14ish of the menstrual cycle) cannot be said to be coordinated towards the biological function of conception any more or less than anal sex between two men.  “Dynamism toward”[53] reproduction is not very meaningful outside the biological reality of reproduction, which in its natural form always necessarily includes non-behavioral biological factors, most especially the actual union of gametes, plus the behavioral factor of ejaculation.  Conception is oblivious to how the gametes came to be in proximity; similarly, the absence of conception is equally assured whether it is an infertile woman-woman or an infertile woman-man couple copulating.  Said Jonathon Rauch in response to proponents of a similar argument:
Their real position is that the possibility of procreation defines marriage when homosexuals are involved, but not when heterosexuals are involved.  To put the point more starkly, sterility disqualifies all homosexuals from marriage, but it disqualifies no heterosexuals.  So the distinction is not pro-procreation (much less pro-children) at all.  It is merely antihomosexual.[54] 
Kenji Yoshino agrees on one point: “the capacity (or desire) to procreate is not a principled ground on which to define same-sex couples out of the institution of marriage while pretending to keep all opposite-sex couples inside it.[55]    
C.     “An act of the kind”
The authors claim: “[O]ganic bodily unity is achieved when a man and woman coordinate to perform an act of the kind that causes conception.[56]  How does one differentiate acts of the kind that cause conception from acts not of the kind that cause conception?  For instance, one could assert that vaginal intercourse by an infertile couple is of the kind that causes conception; another might counter and say that such a finding is nonsense, since sex by infertile couples never causes conception.  Rape, by comparison, is far more coordinated toward the good of reproduction than infertile opposite-sex intercourse- “Whatever their thoughts or goals, whether a couple achieves bodily union depends on facts about what is happening between their bodies,”[57] and the natural dynamism[58] of genitals towards reproduction, if it exists, cares exactly zero for the consent, commitment, or intent of the participants (especially of women, since ovulation is less voluntary than ejaculation).  It may be rational to conclude that all participants in vaginal intercourse participate in an act of the kind that causes reproduction.  On the other hand, one could draw the line at sexual intercourse between two sexually mature adults, and by the same token say that both opposite-sex and same-sex couple intercourse is reproductive. 
The main problem with this type of logic is that it may be too inclusive to exclude male-male couples.  Because a small percentage of ejaculations (and no other volitional act) directly contribute to conception, gay sex is an act of the kind that cause conception.  (The female counterpart to ejaculation, ovulation, is involuntary.  Thus, lesbian sex doesn’t qualify, female orgasm and the clitoris being unnecessary for conception.)  Consensual coitus is neither necessary (witness rape) nor sufficient (high proportion of non-reproductive sex); whether the masturbation is via a vagina or a mouth or a hand is immaterial.  Because infertile sex and male-male intercourse are equally reproductive (i.e. totally ineffective while both ejaculatory), the nature of the intercourse does not suffice to include the one while excluding the other. 
D.    Divorce
One could ask if divorcees can achieve marriage under the authors’ conjugal view:
Ronald marries Jane. They consummate their marriage. They later divorce. Ronald marries Nancy. Are Ronald and Nancy married?  Not according to [George et. al], since real marriage is exclusive and permanent.[59]
Most of us would consider divorcee marriages real, though the authors are not alone if they are so arguing.  Some anti-divorce activists have likely made similar claims. 
Also, the authors claim that sexual union is necessary to marriage, as a necessary element of marriage is its comprehensive union, including union along the bodily dimension[60].  A union where one party has a skin condition prohibiting any kind of sexual contact would not then be a real marriage- a result counterintuitive and indeed offensive to many.  Also, if comprehensive union is required, couldn’t one build this syllogism[61] using similar logic?
(1) Marriage is a comprehensive union between two people.
(2) To be comprehensive, this must include a spiritual union.
(3) The only valid spiritual union is one oriented toward pair worship of God.
(4) Joint membership in God’s true church is the only valid expression of pair worship.
(5) Therefore only joint members of God’s true church can have real marriages.

Why esteem bodily union above other candidate planes as necessary for comprehensive[62] union?    
E.     Consummation
Though I doubt that consummation has proven a highly conserved requirement for completing a marriage historically and cross-culturally, Catholic canon law at least states:
[S]pouses have performed between themselves in a human fashion a conjugal act which is suitable in itself for the procreation of offspring, to which marriage is ordered by its nature and by which the spouses become one flesh.[63] 
Understandably, some Catholic scholars such as Fr. John A. Hardon, S.J., reason that intercourse with contraception does not consummate a marriage.[64]  Wouldn't sex outside the fertile period, or man-woman intercourse where at least one partner is infertile (say, a post-menopausal woman), fail similarly as consummation?  Wouldn’t a better consummation standard be the first intercourse between two non-infertile couples during the woman’s fertile period, if possibly reproduction-oriented intercourse is the relevant discriminator?  Also, it is not clear whether those who are incapable of intercourse (say, an extreme aversion to intercourse resulting from previous sexual abuse, or loss of a penis due to a work injury) are marital candidates.[65]
The authors’ conjugal view cannot require actual exclusivity as an essential element, as marital couples can have sex with partners in addition to the spouse; it is unlikely that the authors would claim that adultery converts a marriage into non-marriage.  Also, to the extent that sexual complementarity means genital complementarity (though anal sex would arguably qualify male-male partnerships as sexually complementary), it would seem that couples that can’t copulate would not be marriage candidates[66].  I am told by my friend, who asked Mr. George this question in January 2011, that George indicated that such unions would be true marriages, though annullable and not complete.  This defense comes dangerously close to merely begging the question.  If vaginal intercourse isn’t necessary for true marriage, but instead merely being a male-female couple suffices, then the proposition (only male-female marriage is “real marriage”) becomes true merely by definition.  The Perry opinion suffices to rebut the “only two persons” claim; orgasm-related pair bonding, amongst other reasons, answers the criticism against robust reasons for legally recognizing marriage in the first place. 
The authors write: Marriage is a comprehensive union of two sexually complementary persons who seal (consummate or complete) their relationship by the generative act—by the kind of activity that is by its nature fulfilled by the conception of a child.[67]  Sexual complementarity is construed by the authors as the complementarity between bodily structures rather than complementarity of sexual orientation.  However, sexual orientation is a subset of the sex determination of the brain[68].  If this is true, on what basis does the author’s choice of biologically determined structure (penis/vagina) succeed over biologically determined orientation as the basis for complementarity, especially when both are subsets of sex determined traits?  Indeed, the complementarity of orientations in marriage (each partner is oriented toward the sex of the other) is a highly conserved traditional aspect, if perhaps somewhat less conserved than opposite-sex vaginal intercourse[69].  Orientation complementarity (where each partner in a couple is oriented to the other partner’s gender) is arguably as oriented toward bearing and raising children as genital complementarity, for two reasons.  (1) When orientation complementarity brings together men and women, it often results in children via natural reproduction.  (2) Complementary orientation couples (both mixed and same gender) form and maintain more stable/lower conflict households, on average, than their mixed orientation couple counterparts; and as the authors note, low conflict is a significant predictor of positive child outcomes.
[S]ame-sex partnerships, whatever their moral status, cannot be marriages because they lack any essential orientation to children: They cannot be sealed by the generative act. Indeed, in the common law tradition, only coitus (not anal or oral sex even between legally wed spouses) has been recognized as consummating a marriage.[70]
The common law tradition, by itself, cannot suffice to establish the moral truth of marriage, being a logical fallacy (appeal to tradition)[71].  If anal and oral sex do not consummate, is it not because such acts are non-reproductive?[72]  If so, then, couples which have non-reproductive sex, such as infertile couples, couples who use contraception, and couples incapable of intercourse are neither more nor less marital candidates than same-sex couples. 
Let’s take the example of a common-law marriage where the opposite-sex couple only engages in anal sex (say the woman has an injured vagina), or where the husband lacks a penis.  Would the two situations be marriage properly subject to annulment, marriage not properly subject to annulment, or non-marriage?  Some revisionist views (such as that in Perry) do not suffer from ambiguity in answering these questions.
V. Conclusion
To summarize, the authors claim that only man-woman marriage is real marriage, because only man-woman sex is reproductive.  Their defense fails for a number or reasons, most ostensibly because it seeks to retain non-reproductive man-woman pairings as marriages, and because it relies on the insufficiently supported deduction that reproduction is the function of sexual intercourse.  Instead, same-sex couples are marital candidates for the exact reasons the authors posit for infertile opposite-sex couples:
“Why, in other words, should we legally recognize an infertile same-sex marriage?  Practically speaking, many couples believed to be infertile same-sex couples end up having children, who would be served by their parents' healthy marriage; and in any case, the effort to determine fertility sex would require unjust invasions of privacy[73]…. More generally, even an obviously infertile same-sex couple—no less than childless newlyweds or parents of grown children—can live out the features and norms of real marriage and thereby contribute to a healthy marriage culture. They can set a good example for others and help to teach the next generation what marriage is and is not. And as we have argued and will argue, everyone benefits from a healthy marriage culture.”[74]

[1] David D. Kirkpatrick, The Conservative-Christian Big Thinker, The New York Times, December 16, 2009 (available at
[2] Sherif Girgis, Robert P. George, & Ryan Anderson, What is Marriage?, Harvard Journal of Law and Public Policy, Vol. 34, No. 1: 245-287, (Winter 2010). 
[3] E.g. Love and Fidelity Network, see and
[4] See
[5] See e.g. Robert P. George, Ryan T. Anderson and Sherif Girgis, The Argument Against Gay Marriage: And Why it Doesn’t Fail: , A response to NYU Law Professor Kenji Yoshino, December 17, 2010 (available at
[6] Supra note 2, at 246. 
[7] Id. at 253.
[8] Supra note 2, at 255.
[9] Id. at 257.
[10] Id. at 273.
[11] Andrew Koppelman, That elusive timeless essence of marriage, December 31, 2010 (available at  Also, Kenji Yoshino, Lose the Baseball Analogy: My response to Robert P. George's second attempt to justify banning gay marriage, Dec. 21, 2010 (available at
[12] Two independent sets of gametes fuse downstream, resulting in a single person with two sperm and two eggs contributing to its genes.
[13] Babies Could Soon Have THREE Biological Parents!, March 11, 2011 (available at
[14] PZ Myers, My mouse has two daddies, December 11, 2010 (available at, Study: Deng JM, Satoh K, Chang H, Zhang Z, Stewart MD, Wang H, Cooney AJ, Behringer RR (2010), Generation of viable male and female mice from two fathers, Biology of Reproduction DOI:10.1095/biolreprod.110.088831.
[15] See for comparison, Elizabeth Marquardt, When 3 Really Is a Crowd, July 16, 2007 (available at, and (
[16] Because males are the heterogametic sex, and because the second X of chromosome 23 in females is lyonized into an unused Barr body, in follows that all the genes needed for oogenesis are necessarily contained in adult male cells. Given the proper hormone/nutrient/ transcription factor cocktail, totipotent cells [which as the name implies can become any of the several hundred distinct types of human cells, including eggs] harvested from gay partner A could be stimulated to become eggs. The sperm of partner B could fertilize the eggs from partner A .  See Jeffery Barrow, current faculty in the Physiology and Developmental Biology Department at BYU, for elaboration. 
[17] Andrew Koppelman, That elusive timeless essence of marriage, December 31, 2010 (available at
[18] Supra note 2, at 272.
[19] Supra note 2, at 253.
[20] See Jared Diamond, The Third Chimpanzee (1992).
[21] Sherif Girgis, Ryan T. Anderson and Robert P. George, Marriage: Real Bodily Union, a response to FamilyScholars Blogger Barry Deutsch, December 30, 2010 (available at (they say: “But far from disproving our point, these examples support it. For it is clear that hair, skin tags, and benign tumors—though contiguous with our bodies—are not biologically united with them in just the way that, say, a heart and lungs are.”  However, contiguity + natural occurrence is the best basis for determining what is a natural organ- a functional basis is counterintuitive (i.e. is an appendix or coccyx an unnatural organ?  How about a kidney or lymph node or tonsils that can be removed without tipping the scales of organic function?). 
[22] Supra note 2, at 267.
[23] Kenneth Miller, Only a Theory (2008) or Finding Darwin’s God (1999).
[24] Sherif Girgis, Ryan T. Anderson and Robert P. George, Marriage: Merely a Social Construct? A response to Northwestern Law Professor Andrew Koppelman,  December 29, 2010 (available at
[25] Sherif Girgis, Ryan T. Anderson and Robert P. George, Does Marriage, or Anything, Have Essential Properties?  A reply to Northwestern Law Professor Andrew Koppelman’s second critique of “What is Marriage?”, December 29, 2010 (available at (the authors successfully defend essentialism; however, their application to natural organs and behaviors such as genitals and coitus are insufficient).
[26] Compare also to the mouth.
[27] A longer discussion of the evolution of penis predicates is relevant here, but excluded to save space.
[28] Supra note 2, at 254.
[29] Richard Dawkins, The Selfish Gene (1976) (the primary concepts articulated in this book, such as gene “selfishness” and inclusive fitness, are vital to this discussion of the purpose of sex and sexual organs).
[30] Id.
[31] Arguably it takes place away from the woman as well.  Most food we eat never truly enters our body, since the alimentary canal is essentially open on both ends (mouth and anus), and only portions of food are ever internalized.  By comparison, ovulation releases an egg into a tube which is essentially external (picture the female reproductive tract as an internalized balloon-like cavity with the vagina the opening to the external environment).  Only after conception takes place does the embryo, like a parasitic tapeworm, implant itself into the tissues of its host.
[32] Id. 
[33] Depending on the definition of biological function applied, acts such as holding a baby, communicating with others, or feeding a child are all necessarily dependent aspects of individual adult completeness, especially to the extent that potential or actual members necessarily rely on certain biological functions of adults. 
[34] Supra note 2, at 255.
[35] Id. at 253.
[36] Id. at 267.
[37] Breasts/breast fondling begs the same question. 
[38] Id.
[39] Id.
[40] Sherif Girgis, Robert P. George, & Ryan Anderson, “A male-female pair as a whole,” The authors’ Marriage: Real Bodily Union, a response to FamilyScholars Blogger Barry Deutsch, December 30, 2010 (available at
[41] Utilitarian John Stuart Mill so argued, see
[42] For more on oxytocin, see Helen Fisher, Why we love: the nature and chemistry of romantic love (2004); Susan Kuchinskas, The chemistry of connection: how the oxytocin response can help you find trust, intimacy, and love (2009); and LouAnn Brizendine, The Female Brain (2006).
[43] Supra note 2, at 257.
[44] Sherif Girgis, Robert P. George, & Ryan Anderson, “A male-female pair as a whole,” The authors’ Marriage: Real Bodily Union, a response to FamilyScholars Blogger Barry Deutsch, December 30, 2010 (available at
[45] Barry Deutsch, “What Is Bodily Union? (A response to What Is Marriage?),” 12.21.2010.
[46] Supra note 2, at 255. 
[47] Id. at 287.
[48] Supra note 2, at 253-254.
[49] Id. at 254.
[50]  At that point, a same-sex couple may be capable of becoming the two and only two biological parents of a child.
[51] Id. at 267.
[52] See e.g. Rafael Larco Hoyle and Dr. Francisco Guerra, quoted in Tannahill, Reay (1992) Sex in History, p. 297-298.
[53] Supra note 2, at 267.
[54] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 112.
[55] Kenji Yoshino, “Lose the Baseball Analogy: My response to Robert P. George's second attempt to justify banning gay marriage, Dec. 21, 2010, available at
[56] Supra note 2, at 254. 
[57] Id. at 266.
[58] Id. at 267.
[59] John Corvino, What Marriage Isn’t (available at
[60] Supra note 2, at 253.
[61] My friend who thought of this prefers anonymity.
[62] Similar criticisms of George’s use of “comprehensive” at Waking Up Now (available at
[63] Canon 1061, section 1.
[64] Hardon, S.J., John.  Consummated marriage.  Pocket Catholic Dictionary, 21.
[65] Id. 
[66] John Corvino argues this as well in What Marriage Isn’t (available at
[67] Supra note 2, at 256.
[68] See e.g. Simon LeVay, Gay Straight, and the Reason Why (2011).
[69] Since historically it is likely that (1) most pairings have been between two straight partners and (2) many homosexually oriented people have married and engaged in coitus.
[70] Supra note 2, at 257.
[71] The authors carefully avoid reliance on the fallacy, e.g. Sherif Girgis, Ryan T. Anderson and Robert P. George, Marriage: Merely a Social Construct? A response to Northwestern Law Professor Andrew Koppelman,  December 29, 2010 (available at
[72] I also disagree that historical consummation law properly recognizes only coitus.  If a generative act is necessary, ejaculation, not consensual coitus, is the only candidate. 
[73] Some transgendered persons argue that the effort to determine their sex unnecessarily invades their privacy.
[74] Supra note 2, at 268.

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