INTERAMERICAN COMMISSION

OF
HUMAN RIGHTS

EXPERT OPINION

On the occasion of the human rights situation of the LGBTI persons in El Salvador
161 regular sesin

On the Definition of Marriage

John Corvino, Ph.D.

Professor of Philosophy and Chair of the Philosophy Department
Wayne State University, Detroit, Michigan, USA
______________________________________________________________

March 21, 2017

Washington D.C., United States of America

Prepared in support of the position set out by COMCAVIS TRANS as requested by

IGUALITOS.AS

www.JohnCorvino.com
Doctor. Paulo Abro
Executive Secretary
Interamerican Commission of Human Rights

Honorable Dr. Abro:

1. My name is John Corvino. I am the Professor and Chair of the Philosophy

Department at Wayne State University in Detroit, Michigan. I am the co-author
(with Maggie Gallagher) of Debating Same-Sex Marriage (June 2012) and the
author of Whats Wrong with Homosexuality? (January 2013), both from Oxford
University Press. Until 2011, my column The Gay Moralist appeared weekly at
365gay.com; I have also contributed to The Detroit Free Press, The Advocate,
the Los Angeles Times, the Huffington Post, The New Republic, Commonweal,
and the New York Times. In the last twenty years I have spoken at over 200
campuses on issues of sexuality, ethics, and marriage.

2. My latest book, Debating Religious Liberty and Discrimination (with counterpoint

by Ryan T. Anderson and Sherif Girgis), is available from Oxford University Press
in April 2017.

3. I have received numerous awards, including a 2012 Distinguished Professor of the

Year Award from the Presidents Council of the State Universities of Michigan and
a 2004 Spirit of Detroit Award from the Detroit City Council for his work on behalf
of LGBT rights. My YouTube videos have received over 1.3 million views.

4. Dr. Abro a complete -16 pages- CV is attached to this expert opinion and you can
reach me if you have any questions to my email John Corvino
j.corvino@wayne.edu; it would be an honor to hear from you.

5. The opinions contained in this expert report are solely of my authorship and
represent my knowledge, and were provided as professional counseling to Mr.
Herman Duarte as the representative of the non-profit organizations Igualitos.as
and the Association Communicating and Empowering TRANS Women in El
Salvador "COMCAVIS TRANS"

6. This individual opinion will be included and presented at the hearing of period No.
161 of the Inter-American Commission on Human Rights to be held on March 21,
2017 in Washington D.C. In the United States.

www.JohnCorvino.com
7. In recent years many countries, including my home country of the United States,
have legalized same-sex marriage or have debated doing so. Such debates often
prompt the following objection: Same-sex marriage is not simply wrong, it is
impossible by definition, because marriage is by definition the union of one man
and one woman. In this brief opinion I wish to respond to the definitional objection,
on which I have written extensively.

8. According to this objection, same-sex marriage involves a conceptual confusion,

fashionable only because the sexual revolution has so badly distorted the proper
understanding of sex and marriage. Notwithstanding many peoples desire to
include same-sex couples in the rights, duties, and social privileges of marriage,
the objection contends that such inclusion is simply impossibleaccording to the
nature of marriage itself.

9. This objection is best expressed by self-styled new natural lawyers such as John
Finnis at Oxford and Notre Dame, Robert P George at Princeton, and others,
although one can find shades of their position in common-variety conservative
arguments as well. Indeed, their view can be understood as a sophisticated
defence of the familiar slogan Marriage = One Man + One Woman, sometimes
rendered in religious garb as Its Adam and Eve, not Adam and Steve.

10. The argument finds its fullest elaboration in a recent book by Sherif Girgis, Robert
P George, and Ryan Anderson What is Marriage? Man and Woman: A Defense
and the basic idea is as follows. In order to decide whether same-sex couples
should be allowed to marry, one must first ask What is marriage? But (the
argument continues) the correct answer to that question shows that marriage is,
by its very nature, a male-female union. So whatever it is that same-sex couples
are asking for, it isnt marriage. Same-sex marriage is thus an oxymoron, like
married bachelor or four-sided triangle.

11. Examples of this Definitional Objection abound. Former US Senator Rick

Santorum used it on the campaign trail in his 2012 Republican presidential primary
bid. Waving a napkin in the air, he announced, Marriage existed before
governments existed. This is a napkin. I can call this napkin a paper towel. But it
is a napkin. Why? Because it is what it is. Right? You can call it whatever you want,
but it doesnt change the character of what it is.

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12. In a similar vein, Dr John Sentamu, Archbishop of York and the second most senior
cleric in the Church of England, argues that Marriage is a relationship between a
man and a woman. I dont think it is the role of the state to define what marriage
is. It is set in tradition and history and you cant just [change it] overnight, no matter
how powerful you are. He went on to compare the push for same-sex marriage
with the behaviour of dictators.

13. In a law review article, Alliance Defense Fund attorney Jeffery Ventrella contends
that to advocate same-sex marriage is logically equivalent to seeking to draw a
square circle: One may passionately and sincerely persist in pining about square
circles, but the fact of the matter is, one will never be able to actually draw one.

14. There is something profoundly unsatisfying about the Definitional Objection,

although its initially hard to explain why. One might worry that it involves a kind of
verbal trick. After all, same-sex relationships unlike square circles surely do
exist, and some jurisdictions legally recognise them as marriages. So the dispute
seems to be less about whether something exists and more about what to call it.

15. But this way of putting it actually misses the Definitional Objections underlying
concern: What we call things and in particular, how the law treats them can
have a profound effect. If we group items together under the same legal name,
people may conclude that there are no important differences between them.
Conversely, if we maintain a verbal and legal distinction, people may better notice
any underlying natural distinctions.

16. An example will help to illustrate this point. Suppose Kate and William are arguing
about whether to serve champagne at their anniversary party: Kate says yes;
William says no. Kate relents: Fine, you handle the beverages!

17. On the day of the party, Kate is delighted to see waiters passing out crystal flutes
filled with bubbly liquid. I thought we werent serving champagne, she says to
William.

18. Were not, he responds: Thats prosecco.

19. But Kate doesnt normally distinguish between champagne which technically
must originate in the Champagne region of France and other kinds of sparkling
wine; to her its all just champagne.

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20. So far, it appears that Kate and William had a mere verbal dispute: they meant
different things by the word champagne, and their initial argument consisted in
miscommunication.

21. But now let us imagine the argument going further: Silly William, Kate says,
champagne is a perfectly fine term for any sparkling wine.

22. No, no, no! William retorts. Theyre very different! And if you start calling them all
by the same name, people wont appreciate that difference.

23. Proponents of the Definitional Objection have a worry similar to Williams:

Heterosexual marriage and committed same-sex relationships are fundamentally
different, they argue, and using the term marriage for both kinds of relationships
confuses people not only about marriages distinctive nature, but also about its
value a moral good which (all sides agree) is far more important than the
pleasures of wine.

24. But what is marriages distinctive nature, and why does it exclude same-sex
couples? The new natural lawyers answer that marriage is a comprehensive union:
a union of both mind and body, exclusive and lifelong. As a comprehensive union,
marriage must include bodily union. But the only way human beings achieve bodily
union is in procreative-type acts that is, in coitus: penis-in-vagina sex. Obviously,
same-sex couples cannot perform coitus. Therefore, they cannot marry.

25. The usual response here invokes permanently infertile heterosexual couples: Why
are they permitted to marry whereas same-sex couples are not? The new natural
lawyers answer that the sterile heterosexual couples sex can still be of the
procreative type. But this answer just stretches the meaning of words (ironic, for
those offering a Definitional Objection): Sex in which procreation is known to be
impossible seems to be precisely not of the procreative type.

26. Perhaps there is some looser sense in which coitus even for permanently infertile
couples is of the procreative type in a way that, say, oral or anal sex is not: It
shares certain formal features with typical procreative sex. The real question is,
whats so special about that? More specifically, why is a necessary condition for
marriage?

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27. Girgis, George, and Andersons answer hearkens back to the notion of
comprehensive union, which requires bodily union, which requires coitus: In
coitus, and there alone, a man and womans bodies participate by virtue of their
sexual complementarity in a coordination that has the biological purpose of
reproduction a function that neither can perform alone. In effect, the two become
one indeed, elsewhere George has claimed that the act makes them literally,
not metaphorically, one organism.

28. Put aside the biological strangeness of the one organism claim. Suppose we
accept, purely for the sake of argument, that marriage requires bodily union and
that only coitus can achieve such union. Then the proper counterexample for the
view is not infertile heterosexuals, but rather those who cannot achieve coitus.

29. Consider a hypothetical couple; let us call them Bob and Jane. Bob and Jane were
high school sweethearts. Eventually, Bob proposed marriage, and Jane accepted.
But prior to their wedding, tragedy struck: Bob was in a terrible car accident which
paralyzed him from the waist down. As a result, he would never be capable of
coitus. Bob offered to cancel the engagement, but Jane would have none of it:
You are the same person I have always loved, she declared. We will make this
work. So Bob and Jane legally wed, spent many years together, and eventually
raised several adopted children. Although coitus was impossible, they engaged in
other acts of sexual affection, which enhanced the special intimacy between them.
For decades, until parted by death, they enjoyed each other and the happily family
they jointly created.

30. Question: Were Bob and Jane married? They were certainly legally married, and
also according to virtually everyones common-sense understanding of marriage.
But not according to the new natural law view. On that view, Bob and Janes
inability to engage in coitus prevented the bodily union necessary for the
comprehensive union of marriage.

31. Ive raised this objection to Girgis, George, and Anderson before. They respond by
conceding that the strong version of their view entails that Bob and Jane were not
really married. They quickly add that good marriage policy would continue
recognising such marriages legally, however, since inquiring into their true status
would be invasive. (Why it would be more invasive than, say, a blood test
required for marriage in many jurisdictions they never explain.)

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32. They also gesture at a softer version of the view in which Bob and Janes
relationship could be marital as long as coitus were possible in principle. It is not
clear how this softer version would work, however. Any random male-female pair
could engage in coitus in principle, But marriage does not consist in what people
might do if the world were different; it consists in what they actually do. Suppose
Bob were kidnapped before the wedding and never returned to Jane. In that case,
they would (sadly) never marry, even though they could marry in principle and
even though their failure to do is fully involuntary.

33. The upshot is that the new natural law view avoids the infertile-couples objection
only to get stuck with something worse: the paraplegic counterexample. By making
coitus a necessary condition for marriage, the new natural lawyers must conclude
that Bob and Janes marriage is a counterfeit.

34. How did we end up in such a spot? Part of the problem is that comprehensive
union is a rather vague and slippery notion: suitable for greeting-card poetry,
perhaps, but not the sort of thing on which to build a marriage theory. It is clear
that comprehensive union doesnt mean that spouses must do everything together:
they may have independent friendships, professional collaborations, tennis
partners and so on. It is also clear that sex is part of our usual understanding of
marriage. But is it strictly necessary? And must it be coital?

35. Girgis, George and Anderson answer yes to both questions, because your body
is an essential part of you, not a vehicle driven by the real you, your mind; nor a
mere costume you must don ... Because of that embodiedness, an union of two
people must include bodily union to be comprehensive. If it did not, it would leave
out it would fail to be extended along a basic part of each persons being.

36. This is the sort of explanation that not only fails to make the case; it actually
contradicts the point its intending to serve. Insofar as our bodies are an integral
part of us, it follows that any union between two people must include bodily union.
Disembodied minds do not form friendships, collaborate on professional projects,
play tennis, and so forth. It thus remains unclear why comprehensive union
requires coitus any more than it requires professional collaboration. (This is not to
deny that sex is an important feature of marriage only to say that it doesnt fall
out of comprehensive union in any clear and unproblematic way.)

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37. So whats the alternative? Proponents of the Definitional Objection, including
Girgis, George, and Anderson, often complain that revisionists like me offer no
clear definition of marriage. Theyre right if they mean that I dont have a simple
phrase like comprehensive union which purportedly captures the necessary and
sufficient conditions for marriage conditions that all and only marriages will
satisfy. But thats because marriage, as a complex social institution, doesnt lend
itself to that sort of pithy definition. Its not definable in the same way that, say,
bachelor or triangle is. As the noted philosopher Martha Nussbaum puts it,
marriage is plural in both content and meaning involving a diverse cluster of
goods and defining elements.

38. The best anyone can offer is a rough and qualified definition. Here is one: Marriage
is the social institution recognising committed adult unions which are presumptively
sexual, exclusive, and lifelong; and which typically involve shared domestic life,
mutual care and concern, and the begetting and rearing of children. The
presumptively and typically are crucial: there will be exceptions, as well as grey
areas. (Are temporary marriages marriages? What about marriages of
convenience?) Notice however, that loose edges are typical in definitions of social
institutions. (Does secular humanism count as a religion? Do tribal councils count
as governments?)

39. Bob and Jane exhibit enough of marriages defining features to count as married,
even without coitus. But once we abandon the idea that coitus is strictly necessary
for marriage, we eliminate the new natural lawyers bar to recognising same-sex
unions as marriages and thus the most powerful available version of the
Definitional Objection.

40. Having argued that the new natural lawyers give the wrong answer to What is
marriage? Id now like to argue that theyre asking the wrong question.

41. To see why, consider what I like to call the Marriage/Schmarriage Maneuver.
Suppose I were wrong about what marriage is. And suppose that, realising my
error, I approached the new natural lawyers and said:

42. You know what? Youre right! This thing Ive been advocating isnt marriage at all.
Its something else lets call it schmarriage. But schmarriage is better than
marriage: its more inclusive, it helps gay people without harming straight people,
etcetera. Wed all be better off if we replaced marriage with schmarriage. Now, its

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 unlikely that the word schmarriage will catch on and besides, its harder to say
than marriage. So from now on, lets have schmarriage which includes both
heterosexual and homosexual unions but lets just call it by the homonym
marriage, as people currently do in Canada, Spain, Uruguay, South Africa and
elsewhere. Okay?

43. Their answer would surely be Not okay! but why? The reason is that they reject
the idea that schmarriage is better than marriage. They maintain that marriage,
traditionally understood, has a distinctive value, and they dont want that value to
get lost in a new, more inclusive terminology.

44. But if thats the crux of the issue marriages distinctive value why not focus on
that? After all, the marriage debate is primarily a moral debate, not a conceptual
or metaphysical one. So instead of asking What is marriage?, shouldnt we be
asking why it is morally important to maintain an exclusively heterosexual
institution for recognising committed relationships?

45. Of course, many have asked the latter question, and the answers have been
unsatisfying. For example, some argue that an exclusively heterosexual marital
institution is important because children do best when raised by their own
(biological) mothers and fathers. The problem with this argument aside from its
resting on dubious interpretations of existing data is that it requires a blatant non-
sequitur. Even if one grants that children do best with their own (biological) mother
and father, it does not follow that same-sex marriage (or schmarriage) should be
prohibited, because there is no reason to think that prohibiting it will result in more
children getting their own (biological) mothers and fathers.

46. In fact, paradoxically, same-sex marriage may have the result that fewer same-sex
couples raise children. Currently, the majority of same-sex couples with children
have them not via adoption or artificial insemination, but rather through prior
heterosexual relationships. In a world where same-sex relationships were more
accepted where gays and lesbians could aspire to happily ever after in marriage
just like their heterosexual counterparts fewer would feel pressure to enter
heterosexual relationships for which they are not suited, and thus fewer children
would experience the breakup of such marriages. From the standpoint of child
welfare, fewer divorces is surely a good thing.

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47. Let me be clear: I fully grant that marriage, institutionally and individually, is
important for child welfare. But it is also important for adults, including those who
dont want or cant have children. Relationships are good for people in myriad
ways. They are good not only for those in them, but also for those around them,
because happy, stable partners make happy, stable neighbours, co-workers,
family members and so on. At the same time, long-term romantic relationships are
challenging, and they benefit from public commitment, legal protection, and social
support the very things that marriage provides. All of these reasons apply to gay
people as well as heterosexual ones.

48. If the Definitional Objection appears unsatisfying, that is partly because it seeks to
impose a tidy definition where such definitions are inapt. But it is mainly because
appealing to definitions is generally unhelpful in this context. The marriage debate
occurs precisely because of conflicting intuitions about what marriage is, or can
become. Clever rhetoric about square circles gets us no further toward reconciling
those intuitions; worse yet, it distracts us from the urgent moral question of how to
treat gay and lesbian individuals, couples, and their families. Their inability to marry
cruelly excludes them from one of the central institutions of social life, and the
Definitional Objection cannot justify this exclusion.

JOHN CORVINO, PHD

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