Andrew Sullivan questions one of the authors of this Article:
It also seems to me to be important to ask George what he proposes should be available to gay couples. Does he believe that we should be able to leave property to one another without other family members trumping us? That we should be allowed to visit one another in hospital? That we should be treated as next-of-kin in medical or legal or custody or property tangles? Or granted the same tax status as straight married couples? These details matter to real people living actual lives, real people the GOP seems totally uninterested in addressing.108
First, the benefits cited have nothing to do with whether the relationship is or could legally be romantic or sexual. But treating essentially similar cases as if they were radically different would be unfair. So these benefits would need to be available to all types of cohabitation if they were made available to any.109 If the law grants them to a cohabiting male couple in a sexual partnership, surely it should grant them, say, to two interdependent brothers who also share domestic responsibilities and have similar needs. The two brothers' relationship would differ in many ways from that of two male sexual partners, but not in ways that affect whether it makes sense to grant them domestic benefits.
But a scheme that granted legal benefits to any two adults upon request - for example, romantic partners, widowed sisters, or cohabiting celibate monks - would not be a marriage scheme. It would not grant legal benefits on the presumption that the benefitted relationship is sexual. So we have no objection to this policy in principle. It would not in itself obscure the nature and norms of marriage.
Still, there are questions to answer before such sexually-neutral benefits packages are granted. What common good would be served by regulating or so benefitting what are essentially ordinary friendships? Why would that good be served only by relationships limited to two people? Can three cohabiting celibate monks not do as much good for each other or society as two? And whatever common good is at stake, does it really depend on, and justify, limiting people's freedom to form and dissolve such friendships, as legal regulation would inevitably do? Does it justify diluting the special social status of real marriages, as generic schemes of benefits would inevitably do?
The value of such a policy - at least for individuals who share the responsibilities of living together - seems to lie in its benefits to the individuals themselves, like hospital-visitation and inheritance rights. But these could be secured just as well by distinct legal arrangements (like power of attorney), which we think that anyone should be free to make with anyone else. Why create a special legal package for generic partnerships? There may be an argument for this in some jurisdictions where, for example, people would otherwise lack the education or resources to make their own legal arrangements. But if such a scheme is not susceptible to the powerful (and, we think, decisive) objections that apply to legal redefinitions of marriage, that is because it is not a redefinition of marriage at all.
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C. Doesn't the Conjugal Conception...
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