Revisionists often challenge proponents of the conjugal view of marriage to offer a principled argument for recognizing the unions of presumptively infertile couples that does not equally justify the recognition of same-sex partnerships. But this challenge is easily met.
To form a real marriage, a couple needs to establish and live out the kind of union that would be completed by, and be apt for, procreation and child-rearing.53 Since any true and honorable harmony between two people has value in itself (not merely as a means), each such comprehensive union of two people - each permanent, exclusive commitment sealed by organic bodily union - certainly does as well.
Any act of organic bodily union can seal a marriage, whether or not it causes conception.54 The nature of the spouses' action now cannot depend on what happens hours later independently of their control - whether a sperm cell in fact penetrates an ovum. And because the union in question is an organic bodily union, it cannot depend for its reality on psychological factors. It does not matter, then, if spouses do not intend to have children or believe that they cannot. Whatever their thoughts or goals, whether a couple achieves bodily union depends on facts about what is happening between their bodies.55
It is clear that the bodies of an infertile couple can unite organically through coitus. Consider digestion, the individual body's process of nourishment. Different parts of that process - salivation, chewing, swallowing, stomach action, intestinal absorption of nutrients - are each in their own way oriented to the broader goal of nourishing the organism. But our salivation, chewing, swallowing, and stomach action remain oriented to that goal (and remain digestive acts) even if on some occasion our intestines do not or cannot finally absorb nutrients, and even if we know so before we eat.56
Similarly, the 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 - prevent conception from occurring, even if the spouses expect this beforehand. As we have argued,57 bodies coordinating toward a single biological function for which each alone is not sufficient are rightly said to form an organic union.
Thus, infertility is no impediment to bodily union and therefore (as our law has always recognized) no impediment to marriage. This is because in truth marriage is not a mere means, even to the great good of procreation.58 It is an end in itself, worthwhile for its own sake. So it can exist apart from children, and the state can recognize it in such cases without distorting the moral truth about marriage.
Of course, a true friendship of two men or two women is also valuable in itself. But lacking the capacity for organic bodily union, it cannot be valuable specifically as a marriage: it cannot be the comprehensive union59 on which aptness for procreation60 and distinctively marital norms61 depend. That is why only a man and a woman can form a marriage - a union whose norms and obligations are decisively shaped by its essential dynamism toward children. For that dynamism comes not from the actual or expected presence of children, which some same-sex partners and even cohabiting brothers could have, and some opposite-sex couples lack, but from the way that marriage is sealed or consummated:62 in coitus, which is organic bodily union.
Someone might grant the principled point that infertility is not an impediment to marriage, and still wonder what public benefit a marriage that cannot produce children would have. Why, in other words, should we legally recognize an infertile marriage?
Practically speaking, many couples believed to be infertile end up having children, who would be served by their parents' healthy marriage; and in any case, the effort to determine fertility would require unjust invasions of privacy. This is a concern presumably shared by revisionists, who would not, for example, require interviews for ascertaining partners' level of affection before granting them a marriage license.
More generally, even an obviously infertile 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 argued63 and will argue,64 everyone benefits from a healthy marriage culture.
What is more, any marriage law at all communicates some message about what marriage is as a moral reality. The state has an obligation to get that message right, for the sake of people who might enter the institution, for their children, and for the community as a whole. To recognize only fertile marriages is to suggest that marriage is merely a means to procreation and childrearing - and not what it truly is, namely, a good in itself.65 It may also violate the principle of equality to which revisionists appeal,66 because infertile and fertile couples alike can form unions of the same basic kind: real marriages. In the absence of strong reasons for it, this kind of differential treatment would be unfair.
Finally, although a legal scheme that honored the conjugal conception of marriage, as our law has long done, would not restrict the incidents of marriage to spouses who happen to have children, its success would tend to limit children to families led by legally married spouses. After all, the more effectively the law teaches the truth about marriage, the more likely people are to enter into marriage and abide by its norms. And the more people form marriages and respect marital norms, the more likely it is that children will be reared by their wedded biological parents. Death and tragedy make the gap impossible to close completely, but a healthier marriage culture would make it shrink. Thus, enshrining the moral truth of marriage in law is crucial for securing the great social benefits served by real marriage.
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E. Challenges for Revisionists
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