Although the conjugal view is, despite its critics, not only inferable from certain widely accepted features of marriage and good for society, but also internally coherent, no version of the revisionists' view accounts for some of their own beliefs about marriage: namely, that the state has an interest in regulating some relationships, but only if they are romantic - presumptively sexual - and only if they are monogamous.
Though some unsatisfactory efforts have been made, revisionists are at a loss to give principled reasons for these positions.67 Unless something like the conjugal understanding of marriage is correct, the first point becomes much harder to defend, and a principled defense of the second and third becomes impossible.
Why does the state not set terms for our ordinary friendships? Why does it not create civil causes of action for neglecting or even betraying our friends? Why are there no civil ceremonies for forming friendships or legal obstacles to ending them? It is simply because ordinary friendships do not affect the political common good in structured ways that justify or warrant legal regulation.
Marriages, in contrast, are a matter of urgent public interest, as the record of almost every culture attests - worth legally recognizing and regulating.68 Societies rely on families, built on strong marriages, to produce what they need but cannot form on their own: upright, decent people who make for reasonably conscientious, law-abiding citizens. As they mature, children benefit from the love and care of both mother and father, and from the committed and exclusive love of their parents for each other.69
Although some libertarians propose to "privatize" marriage,70 treating marriages the way we treat baptisms and bar mitzvahs, supporters of limited government should recognize that marriage privatization would be a catastrophe for limited government.71 In the absence of a flourishing marriage culture, families often fail to form, or to achieve and maintain stability. As absentee fathers and out-of-wedlock births become common, a train of social pathologies follows.72 Naturally, the demand for governmental policing and social services grows. According to a Brookings Institute study, $229 billion in welfare expenditures between 1970 and 1996 can be attributed to the breakdown of the marriage culture and the resulting exacerbation of social ills: teen pregnancy, poverty, crime, drug abuse, and health problems.73 Sociologists David Popenoe and Alan Wolfe have conducted research on Scandinavian countries that supports the conclusion that as marriage culture declines, state spending rises.74
This is why the state has an interest in marriages that is deeper than any interest it could have in ordinary friendships: Marriages bear a principled and practical connection to children.75 Strengthening the marriage culture improves children's shot at becoming upright and productive members of society. In other words, our reasons for enshrining any conception of marriage, and our reasons for believing that the conjugal understanding of marriage is the correct one, are one and the same: the deep link between marriage and children. Sever that connection, and it becomes much harder to show why the state should take any interest in marriage at all. Any proposal for a policy, however, has to be able to account for why the state should enact it.
Some argue simply that the state should grant individuals certain legal benefits if they provide one another domestic support and care. But such a scheme would not be marriage, nor could it make sense of the other features of marriage law.
Take Joe and Jim. They live together, support each other, share domestic responsibilities, and have no dependents. Because Joe knows and trusts Jim more than anyone else, he would like Jim to be the one to visit him in the hospital if he is ill, give directives for his care if he is unconscious, inherit his assets if he dies first, and so on. The same goes for Jim.
So far, you may be assuming that Joe and Jim have a sexual relationship. But does it matter? What if they are bachelor brothers? What if they are best friends who never stopped rooming together after college, or who reunited after being widowed? Is there any reason that the benefits they receive should depend on whether their relationship is or even could be romantic? In fact, would it not be patently unjust if the state withheld benefits from them on the sole ground that they were not having sex?
Someone might object that everyone just knows that marriage has some connection to romance. It requires no explanation. But that is question-begging against Joe and Jim, who want their benefits. And it prematurely stops searching for an answer to why we tend to associate marriage with romance. The explanation brings us back to our central point: Romance is the kind of desire that aims at bodily union, and marriage has much to do with that.
Once this point is admitted, we return to the question of what counts as organic bodily union. Does hugging? Most think not. But then why is sex so important? What if someone derived more pleasure or felt intimacy from some other behavior (tennis, perhaps, as in our earlier example)? We must finally return to the fact that coitus, the generative act, uniquely unites human persons, as explained above.76 But that fact supports the conjugal view: The reason that marriage typically involves romance is that it necessarily involves bodily union, and romance is the sort of desire that seeks bodily union. But organic bodily union is possible only between a man and a woman.
Go back now to the example of Joe and Jim, and add a third man: John. To filter the second point out of this example, assume that the three men are in a romantic triad. Does anything change? If one dies, the other two are coheirs. If one is ill, either can visit or give directives. If Joe and Jim could have their romantic relationship recognized, why should not Joe, Jim, and John?
Again, someone might object, everyone just knows that marriage is between only two people. It requires no explanation. But this again begs the question against Joe, Jim, and John, who want their shared benefits and legal recognition. After all, it is not that each wants benefits as an individual; marriage is a union. They want recognition of their polyamorous relationship and the shared benefits that come with that recognition.
But if the conjugal conception of marriage is correct, it is clear why marriage is possible only between two people. Marriage is a comprehensive interpersonal union that is consummated and renewed by acts of organic bodily union77 and oriented to the bearing and rearing of children.78 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.79 Children, likewise, can have only two parents - a biological mother and father. There are two sexes, one of each type being necessary for reproduction. So marriage, a reproductive type of community, requires two - one of each sex.
Some may object that this is a red herring - that no one is clamoring for recognition of polyamorous unions. Aren't we invoking an alarmist "slippery slope" argument?
It should be noted, to begin with, that there is nothing inherently wrong with arguing against a policy based on reasonable predictions of unwanted consequences. Such predictions would seem quite reasonable in this case, given that prominent figures like Gloria Steinem, Barbara Ehrenreich, and Cornel West have already demanded legal recognition of "multiplepartner" sexual relationships.80 Nor are such relationships unheard of: Newsweek reports that there are more than 500,000 in the United States alone.81
Still, this Article does not aim to predict social or legal consequences of the revisionist view. The goal of examining the criteria of monogamy and romance (Part I.E.2) is to make a simple but crucial conceptual point: Any principle that would justify the legal recognition of same-sex relationships would also justify the legal recognition of polyamorous and non-sexual ones. So if, as most people - including many revisionists - believe, true marriage is essentially a sexual union of exactly two persons, the revisionist conception of marriage must be unsound. Any revisionist who agrees that the state is justified in recognizing only real marriages82 must either reject traditional norms of monogamy and sexual consummation or adopt the conjugal view - which excludes same-sex unions.
University of Calgary's Professor Elizabeth Brake embraces this result and more. She supports "minimal marriage," in which "individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties, the type of relationship involved, and which rights and responsibilities to exchange with each."83 But the more that the parties to a "minimal marriage" determine on a case-by-case basis which rights and duties to exchange - as they must if a greater variety of recognized unions is available - the less the proposed policy itself accomplishes. As we deprive marriage policy of definite shape, we deprive it of purpose. Rigorously pursued, the logic of rejecting the conjugal conception of marriage thus leads, by way of formlessness, toward pointlessness: It proposes a policy of which, having removed the principled ground for any restrictions, it can hardly explain the benefit. Of course, some revisionists will base their support for their preferred norms instead on contingent calculations of prudence or feasibility, which we address next. But we challenge the many revisionists who support norms, like monogamy, as a matter of moral principle to complete the following sentence: Polyamorous unions and nonsexual unions by nature cannot be marriages, and should not be recognized legally, because . . .
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F. Isn't Marriage Just Whatever We Say It Is?
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