Academic journal article Harvard Journal of Law & Public Policy

What Is Marriage?

Academic journal article Harvard Journal of Law & Public Policy

What Is Marriage?

Article excerpt


A. Equality, Justice, and the Heart
   of the Debate

B. Real Marriage Is--And Is Only--The
   Union of Husband and Wife
   1. Comprehensive Union
   2. Special Link to Children
   3.  Marital Norms

C. How Would Gay Civil Marriage
   Affect You or Your Marriage?
   1. Weakening Marriage
   2. Obscuring the Value of Opposite-Se
      Parenting As an Ideal
   3. Threatening Moral and Religious

D. If Not Same-Sex Couples,
   Why Infertile Ones?
   1. Still Real Marriages
   2. Still in the Public Interest

E. Challenges for Revisionists

   1. The State Has an Interest in
      Regulating Some Relationships?
   2. Only if They Are Romantic?
   3. Only if They Are Monogamous?

F. Isn't Marriage Just Whatever
   We Say It Is?


A. Why Not Spread Traditional Norms
to the Gay Community?

B. What About Partners'
Concrete Needs?

C. Doesn't the Conjugal Conception
of Marriage Sacrifice Some
People's Fulfillment for Others'?

D. Isn't It Only Natural?

E. Doesn't Traditional Marriage
Law Impose Controversial
Moral and Religious Views
on Everyone?


What is marriage?

Consider two competing views:

Conjugal View: Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts--acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it. (1)

Revisionist View: Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear. (2)

It has sometimes been suggested that the conjugal understanding of marriage is based only on religious beliefs. This is false. Although the world's major religious traditions have historically understood marriage as a union of man and woman that is by nature apt for procreation and childrearing, (3) this suggests merely that no one religion invented marriage. Instead, the demands of our common human nature have shaped (however imperfectly) all of our religious traditions to recognize this natural institution. As such, marriage is the type of social practice whose basic contours can be discerned by our common human reason, whatever our religious background. We argue in this Article for legally enshrining the conjugal view of marriage, using arguments that require no appeal to religious authority. (4)

Part I begins by defending the idea--which many revisionists implicitly share but most shrink from confronting--that the nature of marriage (that is, its essential features, what it fundamentally is) should settle this debate. If a central claim made by revisionists against the conjugal view, that equality requires recognizing loving consensual relationships, (5) were true, it would also refute the revisionist view; being false, it in fact refutes neither view.

Revisionists, moreover, have said what they think marriage is not (for example, inherently opposite-sex), but have only rarely (and vaguely) explained what they think marriage is. Consequently, because it is easier to criticize a received view than to construct a complete alternative, revisionist arguments have had an appealing simplicity. …

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