* Ph.D. Candidate in Philosophy, Princeton University.
** McCormick Professor of Jurisprudence, Princeton University.
*** Ph.D. Candidate in Political Science, University of Notre Dame.
1 See John M. Finnis, Law, Morality, and "Sexual Orientation," 69 NOTRE DAME L. REV. 1049, 1066 (1994); John Finnis, "Marriage: A Basic and Exigent Good," THE MONIST, July-Oct. 2008, 388-406. See also PATRICK LEE & ROBERT P. GEORGE, BODYSELF DUALISM IN CONTEMPORARY ETHICS AND POLITICS 176-97 (2008). No. 1] What is Marriage? 247 [Back]
2 See Stephen Macedo, Homosexuality and the Conservative Mind, 84 GEO. L.J. 261, 279 (1995). [Back]
3 Even in traditions that permit or have permitted polygamy, each marriage is between a man and a woman. [Back]
5 See William N. Eskridge, Jr., A History of Same-Sex Marriage, 79 VA. L. REV. 1419, 1424 (1993). [Back]
9 See Loving v. Virginia, 388 U.S. 1, 11 (1967). [Back]
10 Throughout history, no society's laws have explicitly forbidden gay marriage. They have not explicitly forbidden it because, until recently, it has not been thought possible. What is more, antimiscegenation laws, at least in the United States, were meant to keep blacks separate from whites, and thus in a position of social, economic, and political inferiority to them. But traditional marriage laws were not devised to oppress those with same-sex attractions. The comparison is offensive, and puzzling to many - not least to the nearly two-thirds of black voters who voted to uphold conjugal marriage under California Proposition Eight. See Cara Mia DiMassa & Jessica Garrison, Why Gays, Blacks are Divided on Prop. 8, L.A. TIMES, Nov. 8, 2008, at A1. [Back]
11 For a brief defense of this idea, and the implications for our argument of denying it, see infra Part I.F. [Back]
12 See Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010). [Back]
13 This point requires elaboration: Some revisionists might deny that there is a "real marriage" from which any relationship might deviate, and instead maintain that marriage is purely conventional. Those who think marriage is a useless or unjustifiable fiction have no reason to support any marriage law at all, while those who think it is a useful and legitimate fiction must explain why the state should keep even the restrictions on marriage that they support. On this latter point, see infra Part II.B. On the implications of regarding marriage as pure construction, see infra Part I.F. [Back]
14 Among revisionists, see, for example, Jonathan Rauch, For Better or Worse? The case for Gay (and Straight) Marriage, THE NEW REPUBLIC, May 6, 1996, at 18, avail- able at http://www.jonathanrauch.com/jrauch_articles/gay_marriage_1_the_case_for_marriage; Ralph Wedgwood, The Fundamental Argument for Same-Sex Marriage, 7 J. POL. PHIL. 225, 229 (1999); Jonathan Rauch, Not So Fast, Mr. George, INDEP. GAY F. (Aug. 2, 2006), http://igfculturewatch.com/2006/08/02/not-so-fast-mr-george. Among supporters of the conjugal view, see, for example, ST. THOMAS AQUINAS, SUMMA THEOLOGICA Supp., Q. 44, Art. 1. [Back]
15 See, e.g., THOMAS WALTER LAQUEUR, MAKING SEX, BODY AND GENDER FROM THE GREEKS TO FREUD 48 (1990). [Back]
16 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. For more on this philosophical point, see LEE & GEORGE, supra note 1, 95-115, 176-97. [Back]
17 The Oxford English Dictionary charts the usage of "consummation" as, among other definitions not relating to marriage, "[t]he completion of marriage by sexual intercourse." OXFORD ENGLISH DICTIONARY III, at 803 (2d ed. 1989). The earliest such usage recorded in law was the 1548 Act 2-3 Edw. VI, c. 23 2: "Sentence for Matrimony, commanding Solemnization, Cohabitation, Consummation and Tractation as becometh Man and Wife to have." Id. In more modern usage, "consummation of marriage" is still regarded in family law as "[t]he first post-marital act of sexual intercourse between a husband and wife." BLACK'S LAW DICTIONARY 359 (9th ed. 2009). [Back]
18 That is, made even richer as the kind of reality it is [Back]
.19 For more on this point, see infra Part I.D. [Back]
20 For more on the difference between infertile and same-sex couples, see infra Part I.D. [Back]
21 For the relevant studies, see Ten Principles on Marriage and the Public Good, signed by some seventy scholars, which corroborates the philosophical case for marriage with extensive evidence from the social sciences about the welfare of children and adults. THE WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES 9-19 (2008), available at http://www.winst.org/ family_marriage_and_democracy/WI_Marriage.pdf. [Back]
22 Kristin Anderson Moore et al., Marriage from a Child's Perspective: How Does Family Structure Affect Children, and What Can We Do About It?, CHILD TRENDS RESEARCH BRIEF, June 2002, at 1-2, 6, available at http://www.childtrends.org/files/MarriageRB602.pdf. [Back]
23 Wendy D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families, 65 J. MARRIAGE & FAM. 876, 890 (2003). [Back]
24 See Sara McLanahan, Elisabeth Donahue & Ron Haskins, Introducing the Issue, 15 THE FUTURE OF CHILD. 3 (2005); Mary Parke, Are Married Parents Really Better for Children?, CLASP POLICY BRIEF, May 2003; W. BRADFORD WILCOX ET AL., 2 WHY MARRIAGE MATTERS: TWENTY-SIX CONCLUSIONS FROM THE SOCIAL SCIENCES 6 (2005). [Back]
25 For more on this point see supra Part I.B.I. [Back]
26 BOOK OF COMMON PRAYER 220 (Oxford 1815). [Back]
27 For more on this point see supra Part I.B.I. [Back]
28 See infra Part I.E.3. [Back]
29 See, e.g., Editorial, A Vermont Court Speaks, BOSTON GLOBE, Dec. 22, 1999, at A22 ("[Gay marriage] no more undermine[s] traditional marriage than sailing undermines swimming."). [Back]
30 See supra Part I.B.1. [Back]
31 See supra Part I.B.2. [Back]
32 See supra Part I.B.3. [Back]
33 See infra Part II.C. [Back]
34 See infra Parts I.E.2-3. [Back]
35 Stanley Kurtz, The End of Marriage in Scandinavia, THE WKLY. STANDARD, Jan. 23, 2004, at 26, available at http://www.weeklystandard.com/Content/Public/Articles/000/000/003/660zypwj.asp. [Back]
36 Elizabeth Brake, Minimal Marriage: What Political Liberalism Implies for Marriage Law, 120 ETHICS 302, 332 (2010) (emphasis added). [Back]
37 RICHARD DOERFLINGER, FAMILY POLICY IN THE UNITED STATES (1980), available at http://www.usccb.org/prolife/tdocs/FaithfulForLife.pdf; MAGGIE GALLAGHER, THE ABOLITION OF MARRIAGE: HOW WE DESTROY LASTING LOVE (1996); PROMISES TO KEEP: DECLINE AND RENEWAL OF MARRIAGE IN AMERICA (David Popenoe et al. eds., 1996); THE BOOK OF MARRIAGE: THE WISEST ANSWERS TO THE TOUGHEST QUESTIONS (Dana Mack & David Blankenhorn eds. 2001); THE FATHERHOOD MOVEMENT: A CALL TO ACTION (Wade F. Horn et al. eds., 1999); UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, MARRIAGE AND FAMILY LIFE (1975), available at http://www.usccb.org/prolife/programs/rlp/Marriage&FamilyLife75.pdf; Maggie Gallagher & Barbara Dafoe Whitehead, End No-Fault Divorce?, 75 FI RST THI NGS 24 (1997). [Back]
38 See supra Part I.B.2. [Back]
39 See THE WITHERSPOON INSTITUTE, supra note 21. [Back]
40 They are clearly the primary victims of the erosion that has already taken place. See W. Bradford Wilcox, The Evolution of Divorce, 1 NAT'L AFFAIRS 81, 88-93 (2009). [Back]
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Part IV: Endnotes: 41-80
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