Outline: Abstract and Argument Summary A. Introduction B. Summary of “What is Marriage?” C.

Marriage between a man and a woman is ordained of God 1. No true Scotsman: more than a tautology 2. Plato‟s cave and the trouble with natural law 3. Failure of the miscegenation analogy D. And they shall be one flesh 1. Organic bodily union 2. Reproduction 3. The “biological purpose” problem 4. The function of sex: reproduction is not a lone target 5. The function of sex: attachment outcompetes reproduction E. Gender, Infertility, “An act of the kind,” Divorce, and Consummation Problems 1. Gender (biological sex) 2. Infertility 3. “An act of the kind” 4. Divorce 5. Consummation F. Conclusion

It a recent article, Robert George and co-authors defend the conjugal (man/woman) view of marriage. The article asserts that same-sex pairings can’t be real marriages, though infertile man/woman pairings may. The authors’ justification centers on the fact that only men and women can engage in vaginal intercourse. Below, I analyze the soundness of this defense.

Argument Summary
I received the challenge of summarizing the substance of my paper in merely two pages. Here goes: 1) Argument 1: The authors’ marriage construct is underinclusive. a) Authors’ premise: the “natural dynamism” or “orientation” of vaginal intercourse toward reproduction supports an argument that only male-female pairings can be marriages. Though infertile couple Scott and Jen’s intercourse can never result in fertilization, the fact that no same-sex pairing anywhere can result in fertilization distinguishes a same-sex relationship. i) Rebuttal 1: Men and women are not fertile by definition: for instance, a fertile woman and an infertile woman are both equally women. Whether a particular sexual act is oriented toward procreation will turn on the couple’s fertility, not its number of genders. ii) Rebuttal 2: If nature can tell us something about what marriage is, then same-sex marriage and polygyny should naturally be included in the marriage construct, given the natural, high prevalence of polyamory and homosexuality in human and related species. iii) Rebuttal 3: If the vaginal intercourse of an infertile couple is what legitimizes their marriage, then a male-female pairing where the husband lost his penis cannot be a marriage. Further, a male-female couple that engages only in anal sex cannot be a marriage. An intersex (neither male nor female) person with ambiguous genitalia could marry neither a man nor a woman. Last, a rapist and his female victim would be marriage candidates because “Whatever their thoughts or goals, whether a couple achieves bodily union depends on facts about what is happening between their bodies.” All four conclusions are unpalatable. iv) Rebuttal 4: Same-sex pairings can result in fertilization. A cheek swab from a human male, for instance, contains all the genetic instructions needed to manufacture a human egg; a male-male couple is no less oriented toward reproduction than an infertile male-female couple, the necessary-but-insufficient genetic ingredients being present in both couples. 2) Argument 2: The authors’ teleology is either inconsistent or inapplicable. a) Authors’ premise: There is a teleology, or purpose, to biological organs and behaviors. (E.g. the stomach is for digestion, coitus for reproduction, etc.). i) Rebuttal 1: It is difficult, if not impossible, to pin down a single, permanent purpose to a particular organ or behavior. Fingers used for grasping fruit and branches today may be applied to strumming cellos and painting masterpieces tomorrow. Indeed, merely given the many present (discounting possible future) consequences of sexual intercourse, it is inappropriate to conclude that vaginal intercourse is “for” procreation. Intercourse results in pleasure and pair bonding far more consistently and frequently than it results in children. ii) Rebuttal 2: It is not appropriate to ascribe a teleology to natural selection, since it is an unguided process. Humans readily assign intent to obviously purposeless phenomena (example: the water is “bent” on getting to the ocean, or a sapling is “trying” to reach the sunlight). Though doing so is useful to humans (indeed, that is the likely reason the perception is so widespread), there is little sense in pinning a biological act to a single stick in a constantly fluctuating bundle of varying-utility consequences. This conclusion applies to the authors’ pairing of coitus (a biological act) and procreation (a particular consequence). 3) Argument 3: The authors’ defense relies fatally on an erroneous understanding of reproduction.

a) Authors’ premise: “Individual adults are naturally incomplete with respect to one biological function: sexual reproduction. In coitus, but not in other forms of sexual contact, a man and a woman's bodies coordinate by way of their sexual organs for the common biological purpose of reproduction. They perform the first step of the complex reproductive process. Thus, their bodies become, in a strong sense, one… coordinating for the biological good of the whole. In this case, the whole is made up of the man and woman as a couple, and the biological good of that whole is their reproduction.” i) Rebuttal 1: Natural selection is the process that evolved sexual intercourse and genitals. As students of biology can explain, reproduction in a Darwinian sense takes place at the level of the gene, competing with other replicating genes in a broader gene pool. Sexual intercourse is not the first step in reproduction; if anything, DNA replication is. Individuals, male-female pairs, organs, populations, species, etc. are merely platforms at which genes engage in varying levels of cooperative competition. Thus, in the necessary context of natural selection, it is not accurate to say that an individual or a couple reproduces. ii) Rebuttal 2: Sexual intercourse is but one evolutionarily useful strategy; altruism, parasitism, and symbiosis are some others. Again, from the necessary perspective of the gene, natural selection’s unit of reproduction, a person can be reproductively successful without ever becoming a biological parent. Example: Boemus, a virgin, dies in a battle with a neighboring tribe after slaying three opponents. His actions advance the interests of some genes over others. Thus, same-sex pair bonding may very well be oriented toward Darwinian reproduction, and coitus away from it, depending upon the tides and dynamic environment of the genetic battle at a given point in time. iii) Rebuttal 3: Procreation may oppose the interest of the male-female “whole” the authors describe, if that “whole” is interested in longevity and health. Having children, compared to not having children, threatens those interests. Childbirth is often fatal, and frequently injurious to the mother; children compete for resources with their parents; parents take risks they would not otherwise take on behalf of their children; children cause distress; children pass diseases onto their parents; parents are less mobile when rearing children; children sometimes kill their parents on accident or purpose; etc. Only the “good” of the selfish gene1 makes the parent gamble a sensible one. iv) Rebuttal 4: This justification elevates rape as more marital than loving, committed, pairbonding, consensual same-sex intercourse (as between the two only rape can be procreative). Procreation requires no voluntary contribution from a subjugated woman, and indeed favors the rapist; yet it is unpalatable to most to esteem that reality above consent as fundamental to the constitution of marriage. The companionship between gender inequality and marriage is no longer viewed favorably by a consensus modern morality.

”In describing genes as being "selfish", the author does not intend (as he states unequivocally in the work) to imply that they are driven by any motives or will—merely that their effects can be accurately described as if they were. The contention is that the genes that get passed on are the ones whose consequences serve their own implicit interests (to continue being replicated), not necessarily those of the organism, much less any larger level.” *Wikipedia –The Selfish Gene, by Richard Dawkins]

A. Introduction
“Nevertheless neither is the man without the woman, neither the woman without the man, in the Lord” – 1 Corinthians 11:11

In the winter of 2010, well-known conservative scholar Robert George (“this country‟s most influential conservative Christian thinker1” and Advisory Board member of Students for the Family) released an article entitled “What is Marriage?” in the Harvard Journal of Law and Public Policy2. This landmark article opposing same-sex marriage (SSM) has been hailed as “outstanding work” and “one of the BEST arguments there is out there,3” amongst other praise4 by organizations such as the American Principles Project, First Things, and the Love and Fidelity Network. George and his two coauthors (throughout the paper please assume I usually refer to all three authors, though I sometime only write “George”) explicitly take on arguments by proSSM scholars Andrew Koppelman and Andrew Sullivan. They also engaged in post-publication debate about their article with SSM scholars Kenji Yoshino5 and Andrew Koppelman. Their article is one of the more recent and sophisticated challenges to SSM. This paper will: 1) Summarize key parts of George‟s seminal 41-page article (section B) 2) Critique the soundness of the article‟s defense of conjugal marriage (sections C-F) At some junctures, I will use religious or scriptural language. This is not because George relies on religion or scripture for his argument (in fact, he explicitly denies the necessity of religion to the conjugal view6). Instead, I anticipate that my audience‟s familiarity with the clauses will render the language useful in conveying concepts. Many LDS audience members will likely find

the analysis below particularly relevant, since the conjugal view defended by the authors is similar to a mainstream LDS conception of marriage. B. Summary of “What is Marriage?” The authors defend the conjugal view of marriage, which the authors expound as the union of a man and a woman who make a commitment to each other which is inherently fulfilled by rearing and bearing children together, among other elements.7 The authors claim that the conjugal view requires organic bodily union,8 and excludes same-sex couples. C. Marriage between a man and a woman is ordained of God9 We now turn to evaluating a number of elements of the authors‟ defense of the conjugal marriage view. Before addressing the “merits,” we first examine the soundness of some of the linguistic and philosophical underpinnings of the authors‟ defense.
1. No true Scotsman: more than a tautology Teacher: All Scotsmen enjoy haggis. Student: My uncle is a Scotsman, and he doesn't like haggis! Teacher: Well, all true Scotsmen like haggis.10

The authors assert that only man-woman (not woman-woman or man-man) unions have the potential to be marriages. Claiming the existence of a moral truth about marriage, they assert a justification for their conclusion: only men and women can unite through sex that is oriented toward reproduction. If that claim is true by definition (i.e. a man is classified as one who can unite with a woman in intercourse oriented toward reproduction, and a woman is one who can unite with man in intercourse oriented toward reproduction), then the authors only stated a tautology (only man-woman marriages are real marriages because marriage is only between a man and a woman). As the authors never define “man” and “woman,” below we will analyze whether the authors do more than assert a proposition supported only by its definition.

2. Plato’s cave and the trouble with natural law

The authors‟ question: “marriage has a nature independent of legal conventions. In this way, the crucial question—the only one that can settle this debate—remains for both sides: What is marriage?”11 One answer to the author‟s question is literal: marriage is a word. As with other symbols and memes, the meanings of words vary and reproduce, and thus naturally evolve novel distributions of consensus interpretation. Without delving too deeply into philosophy of language or semiotics, I would answer that marriage is merely a word loosely representing an external reality which itself has no allegiance to discrete classification. By analogy, instead of asking, “What is marriage?” I could ask “What is ____” and substitute another word, such as “male:” Male- “a person bearing an X and Y chromosome pair in the cell nuclei and normally having a penis, scrotum, and testicles, and developing hair on the face at adolescence; a boy or man.”12 Is there a moral reality for what words are intended to mean, since the understandings of words varies, and the meaning is debatable? Some argue that a male is a person who gender identifies as male, irrespective of biological traits. Mormons believe that maleness and femaleness are spiritual traits that existed for each individual before embodiment. A botanist would consider a nonperson a male (specifically, a staminate plant). The definition fails to classify those who have an X and Y chromosome pair (or X_) but have the appearance of women (Turner syndrome). Similarly, it is unclear how to categorize XX syndrome (male phenotype, female genotype) and Swyer syndrome (XY phenotypic female) persons. And that‟s only the noun meanings! Though there is some consensus on what the word “male” means, there is no clearly discernible single moral truth behind the word, even without analyzing adjective meanings.

To attempt a conclusive answer to the interpretation of a symbol is to reject alternative interpretations of that symbol: some of these are likely valuable. I concede that there may be some Platonic Form13 for concepts such as "male" or "marriage," but argue, as have others14, that meaningful consensus on the discernment or perception of such Forms remains elusive15. This frustration goes to the heart of the authors' approach. How can they establish that a particular interpretation, rather than alternatives, merits classification as the underlying reality? Lacking an answer, I propose that, at the least, any proposed interpretation must at least be internally consistent to be a qualifying candidate. In the sections below, we will explore the consistency of the author‟s interpretation of the conjugal view as “discerned by our common human reason:” “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.”16 Did the demands of our common human nature shape the fierce sexism that is similarly traditional to major religious traditions‟ understanding of man/woman marriage? Did they shape the cultures and religions that did recognize same-sex marriage?17 How about traditional religious polygyny? These questions may vitiate the strength of the authors‟ appeal to nature; others would argue that no appeal to nature would suffice to support the hypostatization of marriage. Andrew Koppelman: “I don‟t think that marriage is a prelegal reality. I think it‟s just a construct that has developed over time, and that therefore can be changed by human beings if that seems best…. A proposal to modify marriage is ontologically similar to a proposal to modify the game of chess. Chess, too, “corresponds to no intrinsic reason or set of reasons at all,” if, again, this means a one-to-one correspondence between practices and goods. Consider a proposal to change the rules so that the rook can now move one space diagonally, in addition to the other moves it is already permitted to make. Well, you‟ll say, if we adopted that rule we wouldn‟t be playing chess any more; we‟d be playing some other game…. But perhaps this other game would be a better one than the one we play now. I

don‟t think that this question can be resolved by trying to figure out what the essence of Chess is. Chess hasn‟t got an essence. Doubtless the present game of chess was developed through just such fiddling; perhaps someone once thought that the drunken reel of the knight was hostile to the essence of Chess. The question is what sort of chess rules are likely, under the circumstances, to best realize the good of play. (Actually, “chess” already denotes several different games. The dynamic is very different if you play with a chess clock.)…. The fact that something is “a legal construct” does not entail that it has “totally malleable contours.” One analogy that may be helpful is immigration. National boundaries are entirely arbitrary constructions that divide human beings who are not essentially different from another. There are, however, good prudential reasons for having them, and the arguments against open borders are similarly prudential. The question of what kind of immigration law to have is a morally weighty one with massive human consequences, but one will not add clarity to the issue by imagining that citizenship is “a pre-legal reality that the state has good reasons to track.” All one can do is make the claim that this or that group of excluded people are so nearly identical to the ones who are included that it is arbitrary to leave them out, and that the consequences of doing so will not be bad.”18 There may be no rigid nature or Form of marriage that the authors, or anyone, can pin down.
3. Failure of the miscegenation analogy

The authors assert that analogies to antimiscegenation rely on a conclusion that any distinction is unjust discrimination.19 This may not be a fair representation, as some who use the analogy would merely claim that gender is equal to race in its irrelevance to marriage, while preserving other distinguishing factors such as relatedness and number of partners. Similar criticism by the authors than any revisionist view has “totally malleable contours” is similarly suspect: “Any principle that would justify the legal recognition of same-sex relationships would also justify the legal recognition of polyamorous and non-sexual ones.”20 Any principle? An answer to the author‟s central question, “What is marriage?” may be found in the Perry v. Schwarzenegger opinion, which explains not only what the right to marry means but also what marriage is21: “Marriage has retained certain characteristics throughout the history of the United States. Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household. The spouses must consent to support each other and any dependents. The state regulates marriage because marriage creates stable households,

which in turn form the basis of a stable, governable populace. The state respects an individual‟s choice to build a family with another and protects the relationship because it is so central a part of an individual‟s life…. The Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship…. The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed. The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household.” This construction excludes, in a principled way, what George et al illustrate as non-marital arrangements (e.g. polyamorous unions). “If there are no principled grounds for marital norms, then it must be unjust to fail to recognize any relationships that are just as socially valuable as those that we do recognize.22” The view of marriage articulated in Perry includes marital norms, such as (1) stability and (2) support of each other and dependents. Last, it holds open the possibility of recognizing some same-sex couplings as marriage. This view of marriage competes on the same grounds (it both excludes and provides a basis for norms) with the conjugal view the authors favor. D. And they shall be one flesh We now go to the author‟s most central and important deduction: that real marriage is only between a man and a woman because only they can and do engage in vaginal intercourse.
1. Organic bodily union

The authors‟ argument relies on the concept of “organic bodily union” (“bodily union” comes up 27 times in the paper). At first glance, this concept seems to raise an eyebrow. There is no such thing as bodily union: even in coitus, there are two very distinct and separate bodies merely in close proximity. (By contrast, bodily union does take place on occasion when two embryos fuse before implantation in the uterine wall to form a single embryo, or when egg and sperm fuse

during syngamy.) A greater number of cells are in close proximity when two people spoon or when two lesbians have sex than in many forms of vaginal intercourse- thus, it cannot be closeness or organic merging that constitutes their union. I think the authors escape these

criticisms. Rather than arguing for a merging of tissues, proximity of cells, or syngamy, they argue for a union of purpose evidenced by coordination for a biological good: reproduction.
2. Reproduction

“But two men or two women cannot achieve organic bodily union since there is no bodily good or function toward which their bodies can coordinate, reproduction being the only candidate.”23 But how well do the authors understand reproduction, the function towards which they posit bodies coordinate during vaginal intercourse? The authors‟ contention relies upon the unique orientation of heterosexual sex to reproduction24; thus, the argument may fail if the biology of reproduction reveals a contrary reality. George‟s view of reproduction may be overly simplistic, and may inappropriately stigmatize those who use reproductive technologies to reproduce. First, they claim that each child has only one mother and only one father: “Children, likewise, can have only two parents— a biological mother and father, there are two sexes, one of each type being necessary for reproduction.” 25 This leads to the unpalatable conclusion that adopting couples are not true parents.26 Putting aside the extant reality of children that result from fusion27, it will very likely be possible soon for an individual to have three biological parents28 (e.g. one person contributes an oocyte “shell,” a second a haploid nucleus, and a third the second haploid nucleus). It is also likely that the technology to support asexual reproduction (e.g. cloning) and same-sex-two-biological-parent reproduction (as was successfully demonstrated in a mouse with two and only two biological parents, two male mice, just a few months ago29) will soon be available. Already some same-sex

male couples mix their sperm, fertilize a donated egg, and implant the zygote into a female friend who agrees to gestate the child, resulting in the type of three parent situation courts often struggle with30. Because male somatic cells contain all the genetic instructions needed to make a human egg31, same-sex male couples may be able to reproduce using merely a cheek swab from one partner and sperm from the second. It is also feasible to fuse two sperm (one from each partner), then place the resulting diploid nucleus into an enucleated totipotent stem cell from one of the men. Are minority reproduction methods like these “morally illicit,32” do they affect the moral truth of marriage, and do they operate to bring classes of couples in or out of “real marriage?” Presume for a moment that the authors could establish that organic bodily union is characterized by its orientation toward reproduction as a biological good. If reproduction is the good aimed for, then polygamy is, for many men, more justified than the sexually exclusive monogamy the authors support. Women ovulate only once a month, and are normally capable of only one pregnancy per nine months. The “natural dynamism” of the romantic and sexual drive in many male brains, by contrast, is toward multiple partners, no less than the natural dynamism of their always-ready-to-inseminate genitals are toward reproduction via vaginal intercourse with many women during the fertile period of each woman‟s cycle. Polygamy and promiscuity result in an elevated likelihood of successful reproduction, and a man can comprehensively engage in organic bodily union with many women (in sequence). The authors are partly correct: “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.”

Yes, sex is only between two people at a time. However, as many cultures and religions have recognized, men can form marriages with multiple women, even though the women are not united with each other. Many in America today practice serial monogamy; perhaps “multiple monogamy” would describe those who marry multiple people in concert rather than in sequence (some Mormon apologists take this approach to justify the claim that God has consistently endorsed only conjugal marriage, despite the church practice of polygamy). There is an obvious link between multiple monogamy and children. A similar argument could be that coitus’s natural dynamism is oriented toward rape, since ejaculation, not willing female participation, is the only behavioral element necessary to reproduction (else, why not require a voluntary act from both partners?). Ultimately, there is irony in using reproductive-oriented vaginal intercourse to defend sexually exclusive monogamy. Let‟s return to the question of whether reproduction is properly labeled as the purpose of vaginal intercourse. The vast majority of coitus incidents are non-reproductive, as females are typically only fertile one-three days out of every 28-day cycle (and even the majority of intercourse during the fertile period does not result in reproduction). At best, a tiny subset of vaginal intercourses (most narrowly, only the actually reproductive ones) are coordinated toward reproduction. Some other animals restrict their mating behaviors more narrowly to the fertile period, suggesting an additional purpose for human sex (pair bonding and pleasure constitute two viable alternatives, since dopamine and the bonding chemical oxytocin are released during sex and, particularly, orgasm: more on this later). Also, nature has made individuals capable of and interested in intercourse far beyond menopause, which terminates the possibility of reproduction (exception duly granted to the world‟s Isaacs). In any case, it is the union of egg and sperm which is proximally needed for reproduction: because a woman ovulates with or without sex, vaginal

intercourse is neither sufficient nor necessary to the end of reproduction. (If implantation is the reproductive “finish line,” rather than conception, then even fewer intercourse incidents result in reproduction, since many times zygotes are sloughed off during menstruation). How, then, do the authors reach the conclusion that reproduction is the biological good towards which a man and woman are united during vaginal intercourse?
3. The “biological purpose” problem

The answer to this question is inadequately addressed by the authors. This absence of this crucial syllogistic leap is, in my view, the most serious weakness in the authors‟ argument. The authors may bifurcate (the “either/or fallacy”) by assigning a primary or sole purpose to biological acts or organs in the first place (such as by claiming that coitus is for reproduction, analogizing to the stomach‟s purpose being to digest). Must a biological act or structure have one and only one purpose? From the article: “But what is it about sexual intercourse that makes it uniquely capable of creating bodily union? People‟s bodies can touch and interact in all sorts of ways, so why does only sexual union make bodies in any significant sense “one flesh”? Our organs—our heart and stomach, for example—are parts of one body because they are coordinated, along with other parts, for a common biological purpose of the whole: our biological life. It follows that for two individuals to unite organically, and thus bodily, their bodies must be coordinated for some biological purpose of the whole… reproduction.”33 Some biological realities have no apparent purpose. The human appendix and the inexplicably long penis34, for instance, seem inefficient at best, despite the authors‟ contention35: “natural organs are what they are (and thus have their natural dynamism toward certain functions) independently of what we intend to use them for and even of whether the function they serve can be brought to completion.”36 Many biological structures and actions, on the other hand, have multiple purposes. Skin, for instance, both regulates body temperature and prevents invasion by foreign agents into the

body‟s internal environment (amongst yet other functions, such as providing sensation and reducing desiccation). I call this the “biological purpose” problem - which of the outcomes does one designate as "the" purpose of a structure or act, and what is the basis for that classification? Perhaps purpose/function is merely the set of proximal consequences of the behavior or structure. However, natural selection often adapts components used for function A into a novel use, function B. Kenneth Miller describes, for instance, how snails might have evolved a rough type of blood clotting.37 Hemolymph components used to transport oxygen, waste, and nutrients were adapted for aggregated use as clots to plug breaches in the internal fluid barrier. One could ask whether the function of the components is (1) to transport, (2) to clot, (3) to transport and to clot, or (4) neither. The authors draw a distinction between the purpose of man-made artifacts and the purpose of natural objects: “Recall the fallacy in Koppelman‟s objection to our view of infertile couples‟ bodily union: that from the fact that guns (artifacts) lose their dynamism toward killing when they can no longer cause death, it would follow that our reproductive organs (natural objects) lose their orientation toward procreation when they can no longer cause conception.” The authors‟ essentialist view38 fails to account for the key difference between man-made objects that we assign purpose to and natural objects: natural selection lacks intention and thus can recognize no functions permanent or “essential” to natural objects or behaviors. Thus, I would agree with the authors that a penis and vagina do not lose their orientation toward procreation when they can no longer cause conception, but for a different reason: because there is no natural essentialism or orientation of those organs to reproduction in the first place. Unlike the authors‟ composition analogy, “To be a sample of the kind of clear liquid found in lakes and rivers (i.e., water), a substance must be composed of H2O molecules—though it need not boil at 100 °C (since boiling point varies by altitude),” natural organs need not fulfill any particular function, or indeed any function at all, to exist as such. To return to the author‟s example, the stomach

functions as a cushion for surrounding organs, a shield for the heart from some external harms, a part of the circulatory and lymphatic systems, and as a filter for potential poisons in addition to being a stop for food in its long journey through the alimentary canal. It is difficult to determine which of all these, if any, is a primary or essential purpose of the stomach- especially if the stomach eventually loses its digestive function, much as the blood components above eventually lost their transport function39. If measured by the frequency that an organ is applied to a particular function, then a penis40 is perhaps foremost a urinary instrument and second a release canal for excess semen, and only in distant third a conduit for a reproductive payload. A vagina may become foremost a canal for menstrual sloughing and secondarily an instrument of pleasure, and third a conduit for reproductive material. In any case, it is unclear what reasoning the authors use to support both (1) the contention that coitus has a primary/single function it is oriented toward and (2) how the authors chose the reproductive function from amongst competitors (more on this subject of competitors in the next section). How about human completeness? The authors claim: “That sort of union is impossible in relation to functions such as digestion and circulation, for which the human individual is by nature sufficient. But individual adults are naturally incomplete with respect to one biological function: sexual reproduction.”41 Most biological functions, and indeed all biological individuals whether they reproduce or not, are mere instruments in the selfish probability-based scheme of individual genes42- rendering the “completeness” of individuals difficult to ascertain. If bearing and raising children invokes more costs than benefits to the bodies of its parents (sapping of resources and increased mortality risk the independent, genetically unique child will now affect), can reproduction be a biological good common to the parents as a whole? Would it not instead be a biological evil common to the pair, but a biological good to individual alleles whose interests are advanced by sacrificing the bodies

of parents to the extent that progeny‟s chances of reproductive success are advanced43? The “whole” described by the set of genes found in {a copulating man + his female partner} is a world removed from the “whole” that is a human organism‟s biological life. In fact, the two whole‟s have a substantial conflict of interest44. This distinction is crucial. It is difficult to say how reproduction is common to the couple as a whole- the product of the roll of the dice we know as sexual recombination, a genetically distinct person, is severable from the body (e.g. IVF), and always takes place away from the body of the man and after ejaculation. Neither parent‟s body (and thus neither parent) is directly benefitted from the experience, since a novel body is thus created (though arguably at least one of their genes might be benefitted, if a telos can be ascribed to a gene). The whole loses half their genetic material (goes from a combined 92 chromosomes to a mere 46) and both unique allelic sequences- which is nearly all that differentiates an individual from the Schnauzer next door (or his host, Neighbor Jones). No tissue created by the body is as different from somatic (self-cells) as gametes- yet this is the only part an individual that goes into the reproduction race. The reproduction result will compete with the whole for resources and increase the whole‟s collective or individual risk of death during and after pregnancy- to say nothing of the accelerated progress toward death (“gray hairs”) occasioned by the stress of parenting. Though reproduction benefits the set of genes found in “one flesh,” or the aggregate genome of a copulating female and her male partner, it is distinctly disadvantageous to the good of either or both individuals.45 Thus, reproduction may not suffice as a basis for organic bodily union. Even if adult human biological completeness could be established, the authors‟ claim that individual adults are naturally complete with respect to only one biological function may be factually erroneous. Individual adult women, for instance, are naturally incomplete with respect

to one additional biological function: breastfeeding. But wait- breastfeeding is necessary for the baby, and not the mother, whereas adult humans are independent except for when it comes to reproduction, right? Individual adults need not reproduce to be complete if being complete means surviving with the potential for a reasonable degree of fulfillment- both adults who do and adults who do not reproduce invariably perish, and many live reasonably fulfilled and complete lives without reproducing. Their potential children, on the other hand, traditionally rely on the union of one gamete from each of two parents- but then, an actual child traditionally relies on a mother for breastfeeding, which makes the mother‟s act of breastfeeding as dependent as contributing a gamete shortly after vaginal intercourse. Similarly, both men and women rely on a pheromone from the scalp of infants to induce temporary feminizing effects. They rely on others to fulfill biological needs for the functions of touch and sex. For some, reproductive promiscuity is as tailored toward human completeness as is marital fidelity. Penultimately, women rely on pregnancy to initiate and manage neurological changes to a “mommy brain.” Last, women rely on a baby to form an oxytocin/dopamine-induced mother-child pair bond neurochemically similar to the one which typically exists between spouses (women quite literally go through a romantic love phase with the baby, reinforcing the baby-mom bond through oxytocin and dopamine release associated with nursing, rather than sexual activity). Other multiparty biological functions might be proposed here as well to further populate the list on nonindependent biological functions begun by reproduction, breastfeeding, the mommy brain, infant pheromone-induced feminizing, touch, sex, promiscuity, and mother-child bonding46. All of these indicate goods towards which two (or more) people can experience organic bodily union.
4. The function of sex: reproduction is not a lone target

The authors state:

“a husband and wife's loving bodily union in coitus and the special kind of relationship to which it is integral are valuable whether or not conception results and even when conception is not sought. But two men or two women cannot achieve organic bodily union since there is no bodily good or function toward which their bodies can coordinate, reproduction being the only candidate. This is a clear sense in which their union cannot be marital, if marital means comprehensive and comprehensive means, among other things, bodily.”47 In the footnote, the authors debunk pleasure as a candidate alternative purpose: “Pleasure cannot play this role for several reasons. The good must be truly common and for the couple as a whole, but pleasures (and, indeed, any psychological good) are private and benefit partners, if at all, only individually. The good must be bodily, but pleasures are aspects of experience. The good must be inherently valuable, but pleasures are not as such good in themselves—witness, for example, sadistic pleasures.” This contention is problematic, since the authors earlier claim that the mind/ consciousness is integrated with, rather than inhabiting, the body.48 Dopamine (a pleasure neurochemical) release is associated with both man-man, man-woman, and woman-woman sex. Regional brain uptake of glucose, imaged by fMRI, is associated with the report of experienced bodily pleasure. Dopamine release is pleasurable because we have dopamine receptors in our brains and perceive a consequence of dopamine-receptor binding as pleasure, regardless of what induces the pleasure. This reality contradicts the authors‟ claim: “Pleasure does not have its own value, considered as a state of mind independently of its object; it shares in the moral quality of that object.”49 Alternatively, the authors‟ view of experience supports pleasure as bodily- especially marital, loving, intercourse-induced pleasure, which is never schadenfreude. The good of pleasure could be inherently valuable in one of two ways- first, by defining away “sadistic pleasures” as non-pleasures, thus salvaging pleasure as a viable purpose50. Second, one could acknowledge the limited utility that comes from sadistic pleasure, yet contend that, on balance, such is always net negative in utility because of the magnitude of harm the victim experiences in addition to negative consequences that accrue to those who derive the sadistic

pleasure. Alternatively, one could argue against reproduction as a universal good using similar reasoning, (1) reproduction-via-rape and (2) reproducing with intent to increase a woman‟s chance of death via childbirth being two candidate illustrations. Contrary to their assertion, pleasure is a bodily good toward which bodies can coordinate. Attachment, which will be discussed next, is another competitor. Even if reproduction is “more” the function or purpose of vaginal intercourse than competitors, the author‟s claim that reproduction is the only good toward which a copulating pair‟s bodies can coordinate is defeated.
5. The function of sex: attachment outcompetes reproduction

Attachment is an arguably superior alternative to reproduction as a function or purpose that coitus is oriented towards. Oxytocin, often called the love hormone, is associated with a number of non-independent behaviors such as orgasm, social recognition, pair bonding, and sexual arousal.51 Like reproduction, oxytocin-caused attachment typically requires a partner. Because our very bodies are built for love and attachment to a partner, “individual adults are naturally incomplete with respect to [this] biological function,” to borrow from the authors‟ language. Reproduction is not the only biological function that requires a partner. Like reproduction, oxytocin-induced bonding is a frequent consequence of sex (a much, much more frequent consequence, in fact). Like reproduction, oxytocin-induced bonding provides a source for norms of permanence and exclusivity. Like reproduction, oxytocin-induced attachment is important to child welfare; reproduction gets the child into the picture, while attachment helps stabilize the bond between the couple raising the child (whether or not the raising couple is also the biological parent pair). This is an important point, as the social science evidence the authors cite points to “intact homes” and “low conflict marriages” and “wedded parents” alongside biological parentage as important predicates of positive child outcomes. Thus, “the marital

relationship's natural orientation to children” may be due to the bonding outcome of sex, rather than or in addition to its reproduction outcome- and this route can include, rather than exclude, same-sex couples, from the point of view of at least a species of the conjugal view of marriage the authors support. Pair bonding benefits the authors‟ described whole52, by magnifying the wholeness of the two. To illustrate, look at how the author‟s argument reads with “reproduction” replaced with “pair bonding:” “Marriage, valuable in itself, is the kind of commitment inherently oriented to the bearing and rearing of children; it is naturally fulfilled by reproduction pair bonding. This orientation is related to the fact that marriage is uniquely embodied in the kind of act that is fulfilled by reproduction pair bonding: coitus.” Sex results in oxytocin release much more regularly than it does reproduction; indeed, almost all sexual activity and orgasm results in oxytocin release in both men and women, which in turn facilitates the trusting, attachment, and bonding of the pair: “[T]wo people in love, when they collaborate in really wonderful sex, frequently do feel they‟ve become one flesh in a significant (although metaphoric) fashion. They feel increased closeness, lowered barriers, and valuing the other as much or more than the self. For most couples, this fosters an important way in which the two do become one — the two people become a couple, the individuals become an „us.‟”53 Thus, there is a strong case to be made that intercourse (whether same or opposite sex) is either pluralistically oriented or, if a primary purpose must be chosen, oriented toward bonding. Either alternative vitiates the strength of the author‟s claim, which only operates to exclude same-sex couples while including opposite-sex ones by relying on reproduction rather than bonding as the “function toward which their bodies can coordinate ” during sex. The authors write: “If human beings reproduced asexually, then organic bodily union—and thus comprehensive interpersonal union—would be impossible, no kind of union would have any special relationship to bearing and rearing children, and the norms that these two

realities require would be at best optional features of any relationship. Thus, the essential features of marriage would be missing; there would be no human need that only marriage could fill.”54 Again, the human need for a pair bond would be filled by marriage even in a world of asexual reproduction. What about attaching together to help in a hunt? Humans need food, right? Twois-better-than-one reasoning says a pair is more likely to survive than an individual. They can fend off an assailant in concert more effectively than alone, they can care for each other when sick, and stably rely on one another to problem solve the many threats to their survival that occur over a lifetime. Some of these benefits decline when additional individuals are added. More significantly, though, our bodies are wired for, and generally need the object of all three built-in motivation systems: romantic, companionate, and sexual. Only marriage lies at the confluence of the three human love drives: companionate (long term), sexual, and romantic. Oxytocin initiates maternal behaviors and solidifies pair bonds in a way likely to stabilize a household. Because rearing children is independent of bearing children in this hypothetical, and because as the authors assert low-conflict, stable married families rear children better than highconflict, unwed, and single-parent homes, there may still be a relationship between a permanent, sexual, committed marital union and rearing children. (Although admittedly the authors‟ hypothetical presumes self-sufficiency of offspring). Coincidently, this construct of marital union can include same-sex couples.
E. Gender, Infertility, “An act of the kind,” Divorce, and Consummation Problems

We are now in section E. As with sections C, D, and F, this section will critique the soundness of the article‟s defense of conjugal marriage. Here we address four related problems dealing with the consistency of the authors‟ defense of the conjugal view.

1. Gender (biological sex) problems

The conjugal view the authors support excludes many married couples from the institution (presuming, of course, that marriage is what is currently legally and socially recognized as such). The authors included the sealing and renewing of their union with conjugal acts as a part of the conjugal view of marriage. Thus, where one or both parties lack the requisite genitalia or control over the same such that coitus is impossible, theirs is not a real marriage, even though most people and the law regard them as married. Examples include (1) a coitus-incapable minority of quadriplegic couples, (2) marriages where the male‟s penis is absent due to injury, and (3) marriages between an androgen insensitivity syndrome individual and that individual‟s spouse (where the vagina, penis, and/or clitoris developed abnormally or not at all). In this same vein, a reader is left to wonder which is a “real marriage:” an intersex (gender indeterminate) person and a man, or an intersex person and a woman? Perhaps neither or both? Would the determination turn on the intersex person‟s sexual behavior, genitalia, gamete production, genes, neither, or some combination?55 The revisionist view which merely adds same-sex couples to the existing class of recognized marriage holds more potential for answering these questions than the traditional one, as same-sex or perhaps even genderless pairings may be appropriately recognized as marriages. Because it requires a male and a female, it is less clear how the authors‟ conjugal view would or should resolve these questions, since some would classify at least some subset of intersex persons as being both male and female, while others would classify that same subset as neither male nor female. This is a serious blow to the authors‟ claim for the discernibility of real marriage- a difficulty not experienced by some competing constructions.
2. Infertility

“[W}hat is it about sexual intercourse that makes it uniquely capable of creating bodily union? Coitus … the first step of the complex reproductive process.”56

Because infertility is often inherited (e.g. through a recessive allele frustrating meiosis), for at least some opposite sex couples that have intercourse, their union cannot be said to be inherently oriented towards reproduction. An example would be a postmenopausal woman seeking to marry: her infertility is a direct consequence of inherited senescence, and her marital coitus is not oriented towards reproduction, though pleasure and pair bonding persist as candidate functions (she and her husband also retain an ability to rear children that on average may exceed that of single parent and unwed homes). “bodily union involves mutual coordination toward a bodily good—which is realized only through coitus. And this union occurs even when conception, the bodily good toward which sexual intercourse as a biological function is oriented, does not occur. In other words, organic bodily unity is achieved when a man and woman coordinate to perform an act of the kind that causes conception.”57 Might there not be other ways besides coitus that individuals unite in the bodily union the authors describe? If fertilization is not required- instead merely an act of the kind that causes conception- then other acts can qualify as acts mutually coordinated toward reproduction. The drive home by a woman which brings her within intercourse distance of her male partner, thus reducing the physical distance between their respective gametes, is another necessary-butinsufficient step in the reproductive process (example two). The masturbation of a man to produce sperm used in IVF (whether by himself or via a male or female partner), the journey of a woman to the lab for egg extraction, and the act by a lab technician of injecting sperm into an ovum (examples three, four, and five) also belong on the list next to coitus. Because all the genetic instructions needed to create a human egg are found in the mouth cells of an adult male, a cheek swab may soon join the list as example six (at that point, a same-sex couple may be capable of becoming the two and only two biological parents of a child).

If reproductive capacity is not necessary for the organic bodily union the authors describe, then might not mutual masturbation or anal sex by a man/woman or by two men fit the authors‟ explanation for why infertile couples‟ sex makes their union a real marriage? “[T]he 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 [insert absence of an ovary here, the typical condition of males]— prevent conception from occurring, even if the spouses expect this beforehand. As we have argued, bodies coordinating toward a single biological function for which each alone is not sufficient are rightly said to form an organic union.”58 If sex is oriented toward reproduction—which could be inferred by the fact that in males such ends in ejaculation of sperm, a necessary-but-insufficient component of reproduction—then anal sex, which necessarily requires two people whose parts fit, is no more nor less oriented towards reproduction than necessary-but-insufficient-intercourse by an infertile male and his female partner (be their intercourse anal or vaginal). Anal sex is well evidenced historically59 and has taken place in both man-man and man-woman pairings. Like the vagina, the anus has multiple functions, and some of these cannot be solely individual any more than vaginal ones. Anal sex requires a partner, and when it takes place between men, the “non-behavioral factor” that the receiving male‟s germline cells (which contain all the genes needed for both a sperm and an egg) undergo spermatogenesis rather than oogenesis does not suffice to make the necessary-forreproduction ejaculation lose its dynamism toward reproduction. Similarly, because of their infertility, infertile couples‟ sex (and indeed most sex by fertile couples outside day 14ish of the menstrual cycle) cannot be said to be coordinated towards the biological function of conception any more or less than anal sex between two men. “Dynamism toward”60 reproduction is not very meaningful outside the biological reality of reproduction, which in its natural form always necessarily includes non-behavioral biological factors, most especially the actual union of gametes, and the behavioral factor of ejaculation. Conception is oblivious to how the gametes

came to be in proximity; similarly, the absence of conception is equally assured whether it is an infertile woman-woman or an infertile woman-man couple copulating. Said Jonathan Rauch in response to proponents of a similar argument: “Their real position is that the possibility of procreation defines marriage when homosexuals are involved, but not when heterosexuals are involved. To put the point more starkly, sterility disqualifies all homosexuals from marriage, but it disqualifies no heterosexuals. So the distinction is not pro-procreation (much less prochildren) at all. It is merely antihomosexual.61” Kenji Yoshino agrees on one point: “the capacity (or desire) to procreate is not a principled ground on which to define same-sex couples out of the institution of marriage while pretending to keep all opposite-sex couples inside it.”62 Said LDS feminist and BYU professor Valerie Hudson: “Reproduction is the fruit, not the root, of what God intended in establishing marriage. That is why it doesn‟t matter who‟s fertile, and whether a marriage of infertile people is a marriage is beside the point.”63
3. An act of the kind

“organic bodily unity is achieved when a man and woman coordinate to perform an act of the kind that causes conception.”64 How does one differentiate acts of the kind that cause conception from acts not of the kind that cause conception? For instance, one could assert that vaginal intercourse by an infertile couple is of the kind that causes conception; another might counter and say that such a finding is nonsense, since sex by infertile couples never causes conception. Rape, by comparison, is far more coordinated toward the good of reproduction than infertile opposite-sex intercourse- “Whatever their thoughts or goals, whether a couple achieves bodily union depends on facts about what is happening between their bodies,”65 and the natural dynamism66 of genitals towards reproduction, if it exists, cares exactly zero for the consent, commitment, or intent of the participants (especially women, since ovulation is less voluntary than ejaculation). It may be rational to

conclude that all participants in vaginal intercourse participate in an act of the kind that causes reproduction. On the other hand, one could draws the line at sexual intercourse between two sexually mature adults as reproductive, and by the same token say that both opposite-sex and same-sex couple intercourse is reproductive. The main problem with this type of logic is that it may be too inclusive to exclude male-male couples. Because a small percentage of ejaculations directly contribute to conception, masturbation and gay sex are acts of the kind that cause conception. (The female counterpart to ejaculation, ovulation, is involuntary. Thus, lesbian sex wouldn‟t qualify, female orgasm being unnecessary for conception.) Because infertile intercourse and male-male intercourse are equally reproductive (i.e. totally ineffective while both ejaculatory), the nature of the intercourse does not suffice to include the one while excluding the other.
4. Divorce

One could ask if divorcees can achieve marriage under the authors‟ conjugal view: “Ronald marries Jane. They consummate their marriage. They later divorce. Ronald marries Nancy. Are Ronald and Nancy married? Not according to [George et. al], since real marriage is exclusive and permanent.”67 Most of us would consider divorcee marriages real, though the authors are not alone if they are so arguing. Some anti-divorce activists have likely made similar claims. Also, the authors claim that sexual union is necessary to marriage, as a necessary element of marriage is its comprehensive union, including union along the bodily dimension68. A union where one party has a skin condition prohibiting any kind of sexual contact would not then be a real marriage- a result counterintuitive and indeed offensive to many. Also, if comprehensive union is required, couldn‟t one build this syllogism69 using similar logic?

(1) Marriage is a comprehensive union between two people. (2) To be comprehensive, this must include a spiritual union. (3) The only valid spiritual union is one oriented toward pair worship of God. (4) Joint membership in God‟s true church is the only valid expression of pair worship. (5) Therefore only joint members of God‟s true church can have real marriages. Why esteem bodily union above other candidate planes as necessary for comprehensive union?

5. Consummation

Though I doubt that consummation has proven a highly conserved requirement for completing a marriage historically and cross-culturally, Catholic canon law at least states: "spouses have performed between themselves in a human fashion a conjugal act which is suitable in itself for the procreation of offspring, to which marriage is ordered by its nature and by which the spouses become one flesh."70 Understandably, some Catholic scholars such as Fr. John A. Hardon, S.J., reason that intercourse with contraception does not consummate a marriage.71 Wouldn't sex outside the fertile period, or man-woman intercourse where at least one partner is infertile (say, a post-menopausal woman), fail similarly as consummation? Wouldn‟t a better consummation standard be the first intercourse between two non-infertile couples during the woman‟s fertile period, if possibly reproduction-oriented intercourse is the relevant discriminator? Also, it is not clear whether those who are incapable of intercourse (say, an extreme aversion to intercourse resulting from previous sexual abuse, or loss of a penis due to a work injury) are marital candidates: “[T]hose who would redefine civil marriage, to eliminate sexual complementarity as an essential element, can give no principled account of why marriage should be (1) a sexual partnership as opposed to a partnership distinguished by exclusivity with respect to other activities (including non-sexual relationships, as between cohabiting adult brothers); or (2) an exclusive union of only two persons (rather than three or more in a polyamorous arrangement). Nor can they give robust reasons for making marriage (3) a legally recognized and regulated relationship in the first place (since, after all, we don‟t legally recognize or closely regulate most other forms of friendships).72”

The authors‟ conjugal view cannot require actual exclusivity as an essential element, as marital couples can have sex with partners in addition to the spouse; it is unlikely that the authors would claim that adultery converts a marriage into non-marriage. Also, to the extent that sexual complementarity means genital complementarity (though anal sex would arguably qualify malemale partnerships as sexually complementary), it would seem that couples that can‟t copulate would not be marriage candidates73. I am told by my friend, who asked Mr. George this question in January 2011, that George indicated that such unions would be true marriages, though annullable and not complete. 74 This defense comes dangerously close to merely begging the question. If vaginal intercourse isn‟t necessary for true marriage, but instead merely being a male-female couple suffices, then the proposition (only male-female marriage is “real marriage”) becomes true merely by definition. The Perry opinion suffices to rebut the “only two persons” claim, and orgasm-related pair bonding, amongst other reasons75, answers the criticism against robust reasons for legally recognizing marriage in the first place. The authors write: “Marriage is a comprehensive union of two sexually complementary persons who seal (consummate or complete) their relationship by the generative act—by the kind of activity that is by its nature fulfilled by the conception of a child.”76 Sexual complementarity is construed by the authors as the complementarity between bodily structures rather than complementarity of sexual orientation77. However, much evidence suggests that sexual orientation, including homosexual orientation, is a subset of the sex determination of the brain78. If this is true, on what basis does the author‟s choice of biologically determined structure (penis/vagina) succeed over biologically determined orientation as the basis for complementarity, especially when both are subsets of sex determined traits? Indeed, the complementarity of orientations in marriage (each partner is oriented toward the sex of the

other) is a highly conserved traditional aspect, if perhaps somewhat less conserved than oppositesex vaginal intercourse79. Orientation complementarity (where each partner in a couple is oriented to the other partner‟s gender) is arguably as oriented toward bearing and raising children as genital complementarity, for two reasons. (1) When orientation complementarity brings together men and women, it often results in children via natural reproduction. (2) Complementary orientation couples (both mixed and same gender) form and maintain more stable/lower conflict households, on average, than their mixed orientation couple counterparts; and as the authors note, low conflict is a significant predictor of positive child outcomes. “same-sex partnerships, whatever their moral status, cannot be marriages because they lack any essential orientation to children: They cannot be sealed by the generative act. Indeed, in the common law tradition, only coitus (not anal or oral sex even between legally wed spouses) has been recognized as consummating a marriage."80 The common law tradition, by itself, cannot suffice to establish the moral truth of marriage, being a logical fallacy (appeal to tradition)81. If anal and oral sex do not consummate, is it not because such acts are non-reproductive?82 If so, then, couples which have non-reproductive sex, such as infertile couples, couples who use contraception, and couples incapable of intercourse are neither more nor less marital candidates than same-sex couples. I‟m genuinely curious as to how the authors would classify a common-law marriage (say, in Texas) where the opposite-sex couple only engages in anal sex (say the woman has an injured vagina), or where the husband lacks a penis. Under Catholic canon law, an unconsummated marriage can be dissolved by the Pope, and an inability or refusal to consummate the marriage is probably grounds for annulment.83 Would the two situations be marriage properly subject to annulment, marriage not properly subject to annulment, or non-marriage? Intractable impotence present at the time of marriage has been a basis for voiding marriage in the past- it is also unclear

whether the authors would consider such unions voidable marriages, non-marriages, or neither. Some revisionist views (such as that in Perry) do not suffer from this ambiguity.

F. Conclusion
To summarize, the authors claim that only man-woman marriage is real marriage, because only man-woman sex is reproductive. Their defense fails for a number or reasons, most ostensibly because it seeks to retain non-reproductive man-woman pairings as marriages, and because it relies on the insufficiently supported deduction that reproduction is the function of sexual intercourse. Instead, same-sex couples are marital candidates for the exact reasons the authors posit for infertile opposite-sex couples: “Why, in other words, should we legally recognize an infertile same-sex marriage? Practically speaking, many couples believed to be infertile same-sex couples end up having children, who would be served by their parents' healthy marriage; and in any case, the effort to determine fertility sex would require unjust invasions of privacy84…. More generally, even an obviously infertile same-sex 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 argued and will argue, everyone benefits from a healthy marriage culture.”85


David D. Kirkpatrick, "The Conservative-Christian Big Thinker," December 16, 2009, available at http://www.nytimes.com/2009/12/20/magazine/20george-t.html?hpw=&pagewanted=all 2 Sherif Girgis, Robert P. George, & Ryan Anderson, What is Marriage?, HARVARD JOURNAL OF LAW AND PUBLIC POLICY, Vol. 34, No. 1: 245-287, (Winter 2010). Email me at bradleycarmack@gmail.com for a pdf if you can’t access it online (I recommend googling *“what is marriage” pdf george+). 3 E.g. Love and Fidelity Network, see http://www.loveandfidelity.org/blog/index.php/2010/12/08/hot-off-thepress-what-is-marriage/ and http://www.prolifeblogs.com/articles/aggregator.php?entry=988615 4 See http://www.amptoons.com/blog/2010/12/21/what-is-bodily-union-a-response-to-what-is-marriage/ 5 See e.g. The Argument Against Gay Marriage: And Why it Doesn’t Fail, by Robert P. George, Ryan T. Anderson and Sherif Girgis, December 17, 2010, A response to NYU Law Professor Kenji Yoshino. http://www.thepublicdiscourse.com/2010/12/2217 6 Supra note 2 at 247. 7 Id. at 246. 8 Id. at 253. 9 LDS Family Proclamation, 1995. 10 http://en.wikipedia.org/wiki/No_true_Scotsman 11 Supra note 2 at 252. 12 Dictionary.com, “Male.” 13 Plato’s theory of Forms posits that non-material abstract (but substantial) forms (or ideas), and not the material world of change known to us through sensation, possesses the highest and most fundamental kind of realitywikipedia.org, viewed 13 May 2011. 14 See e.g. John Corvino, “The Invention of Marriage,” http://www.365gay.com/news/corvino-the-invention-ofmarriage/ “I find this understanding of marriage absurd, both philosophically and historically. Whatever else it is, marriage is an evolving social institution.” 15 Jonathan Rauch made a similar argument, “Let them eat friendship,” January 2011, at http://igfculturewatch.com/2011/01/12/let-them-eat-friendship-george-et-al/ 16 Supra note 2 at 247. 17 Parts of the Inuit culture, the Vanuatu in the South Pacific, the Ming Dynasty in China, the Azande in sub-Saharan Africa, and in cultures in Eastern Siberia and 27 Native American tribes. D. Michael Quinn, Same-Sex Dynamics among Nineteenth-Century Americans: A Mormon Example, 130-131. 18 Andrew Koppelman, What Marriage Isn’t, December 18, 2010, http://trueloverevolution.wordpress.com/2011/01/03/girgisandersongeorge-respond-to-yoshino-again/ 19 Supra note 2 at 250. 20 Id. at 273. 21 Perry v. Schwarzenegger, Northern District of California, Order, pages 111-114. 22 Id. 23 Supra note 2 at 255. 24 Supra note 2 at 257 and throughout the first half of the article. 25 Id. at 273. 26 Andrew Koppelman, "That elusive timeless essence of marriage," http://balkin.blogspot.com/2010/12/thatelusive-timeless-essence-of.html, Friday, December 31, 2010. Also, Kenji Yoshino, “Lose the Baseball Analogy: My response to Robert P. George's second attempt to justify banning gay marriage, Dec. 21, 2010, available at http://www.slate.com/id/2278794/ 27 Two independent sets of gametes fuse downstream, resulting in a single person with two sperm and two eggs contributing to its genes. 28 http://shine.yahoo.com/channel/parenting/babies-could-soon-have-three-biological-parents-2464009 29 PZ Myers, "My mouse has two daddies," posted on December 11, 2010, http://scienceblogs.com/pharyngula/2010/12/my_mouse_has_two_daddies.php Study: Deng JM, Satoh K, Chang

H, Zhang Z, Stewart MD, Wang H, Cooney AJ, Behringer RR (2010) Generation of viable male and female mice from two fathers. Biology of Reproduction DOI:10.1095/biolreprod.110.088831. 30 See for comparison, Elizabeth Marquardt, “When 3 Really Is a Crowd,” July 16, 2007, available at http://www.nytimes.com/2007/07/16/opinion/16marquardt.html, and http://www.blakes.com/english/view_disc.asp?ID=245 31 Because males are the heterogametic sex, and because the second X of chromosome 23 in females is lyonized into an unused Barr body, in follows that all the genes needed for oogenesis are necessarily contained in adult male diploid cells. Given the proper hormone/nutrient/ transcription factor cocktail, totipotent cells [which as the name implies can become any of the several hundred distinct types of human cells, including eggs] harvested from gay partner A could be stimulated to become eggs. The sperm of partner B could fertilize the eggs from partner A . See Jeffery Barrow, current faculty in the Physiology and Developmental Biology Department at BYU, 355 WIDB, for elaboration. 32 Andrew Koppelman, "That elusive timeless essence of marriage," http://balkin.blogspot.com/2010/12/thatelusive-timeless-essence-of.html, Friday, December 31, 2010. 33 Supra note 2 at 253. 34 See Jared Diamond, The Third Chimpanzee. 35 In the authors’ Marriage: Real Bodily Union, a response to FamilyScholars Blogger Barry Deutsch, December 30, 2010, http://www.thepublicdiscourse.com/2010/12/2277 they say: “But far from disproving our point, these examples support it. For it is clear that hair, skin tags, and benign tumors—though contiguous with our bodies—are not biologically united with them in just the way that, say, a heart and lungs are.” However, contiguity + natural occurrence is the best basis for determining what is a natural organ- a functional basis is counterintuitive (i.e. is an appendix or coccyx an unnatural organ? How about a kidney or lymph node or tonsils that can be removed without tipping the scales of organic function?). 36 Supra note 2 at 267. 37 See Kenneth Miller, Only a Theory or Finding Darwin’s God. 38 Sherif Girgis, Ryan T. Anderson and Robert P. George, "Does Marriage, or Anything, Have Essential Properties?" A reply to Northwestern Law Professor Andrew Koppelman’s second critique of “What is Marriage?” December 29, 2010, http://www.thepublicdiscourse.com/2011/01/2350. The authors successfully defend essentialism; however, their application to natural organs and behaviors such as genitals and coitus are insufficient. 39 Compare also to the mouth. 40 A longer discussion of the evolution of penis predicates is relevant here, but I exclude it to save space. 41 Supra note 2 at 254. 42 Richard Dawkins, The Selfish Gene. 43 A lengthier discussion of this concept could be provided. Senescence (programmed cell death) and sexual reproduction are merely evolutionarily stable strategies for competitive success at the level of individual alleles. Death cannot be said to be a good or benefit to an individual, yet the combination of reproduction and senescence, rather than the perpetual life our bodies would be capable of but for senescence, guarantees death for all. Because offspring compete for resources with parent generations and because adaptation to environmental changes requires “rolling the genetic dice” more rather than less, reproduction is no more an individual biological good than is death. 44 Supra note 43. 45 Id. 46 Depending on the definition of biological function applied, acts such as holding a baby, communicating with others, or feeding a child are all necessarily dependent aspects of individual adult completeness, especially to the extent that potential or actual members necessarily rely on certain biological functions of adults. Conversation and friendship are candidates as well, as their absence retards mental wholeness on the one hand and loneliness on the other. 47 Supra note 2 at 255. 48 Id. at 253. 49 The authors’ Marriage: Real Bodily Union, a response to FamilyScholars Blogger Barry Deutsch, December 30, 2010, http://www.thepublicdiscourse.com/2010/12/2277


Utilitarian John Stuart Mill so argued, see http://students.ou.edu/M/Jonathan.D.Mc-Kay1/utilitarianphilosophy.html 51 For more on oxytocin, see (1) Helen Fisher’s Why We Love: the Nature and Chemistry of Romantic Love, (2) Susan Kuchinskas’s The Chemistry of Connection: How the Oxytocin Response Can Help You Find Trust, Intimacy, and Love, and (3) LouAnn Brizendine’s The Female Brain 52 Sherif Girgis, Robert P. George, & Ryan Anderson, “A male-female pair as a whole,” The authors’ Marriage: Real Bodily Union, a response to FamilyScholars Blogger Barry Deutsch, December 30, 2010, http://www.thepublicdiscourse.com/2010/12/2277 53 Barry Deutsch, “What Is Bodily Union? (A response to What Is Marriage?),” 12.21.2010. http://familyscholars.org/2010/12/21/what-is-bodily-union-a-response-to-what-is-marriage/ 54 Supra note 2 at 287. 55 For discussion on this vital point’s relevance to the Family Proclamation, see my book, chapter 5 (download at bradcarmack.blogspot.com) 56 Supra note 2 at 253-254. 57 Id. at 254. 58 Id. at 267. 59 See e.g. Rafael Larco Hoyle and Dr. Francisco Guerra, quoted in Tannahill, Reay (1992) Sex in History, p. 297-298. 60 Supra note 2 at 267. 61 Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 112. 62 Kenji Yoshino, “Lose the Baseball Analogy: My response to Robert P. George's second attempt to justify banning gay marriage, Dec. 21, 2010, available at http://www.slate.com/id/2278794/ 63 Valerie Hudson, "The Men Have Muffed It: How Men's Misunderstanding of the Telos of Marriage Imperils Its Future," April 2009, “Additional Commentary on the Sherlock/Hertzberg/Hancock Debate,” SquareTwo, Vol. 1 No. 1 (Fall 2008), http://squaretwo.org/Sq2AddlCommentarySherlock.html 64 Supra note 2 at 254. 65 Id. at 266. 66 Id. at 267. 67 John Corvino, “What Marriage Isn’t,” http://www.365gay.com/opinion/corvino-what-marriage-isnt/ 68 Supra note 2 at 253. 69 My friend thought of this, May 2011. 70 Canon 1061 section 1. 71 Hardon, S.J., John. “Consummated marriage”. Pocket Catholic Dictionary, pg. 21. 72 Id. 73 John Corvino argues this as well at “What Marriage Isn’t,” http://www.365gay.com/opinion/corvino-whatmarriage-isnt/ 74 I apologize for introducing hearsay; it’s the best evidence I have for the an author’s reply to this contention. 75 See chapters 5 and 6 of my book for additional justifications for regulating marriage, bradcarmack.blogspot.com 76 Supra note 2 at 256. 77 Because the authors did not directly address transgender issues, I will avoid analyzing their position on that germane issue cluster. 78 See e.g. Simon LeVay’s Gay, Straight, and the Reason Why. 79 Since historically it is likely that (1) most pairings have been between two straight partners and (2) many homosexually oriented people have married and engaged in coitus. 80 Supra note 2 at 257. 81 The authors carefully avoid reliance on the fallacy, e.g. Sherif Girgis, Ryan T. Anderson and Robert P. George, "Marriage: Merely a Social Construct? A response to Northwestern Law Professor Andrew Koppelman." December 29, 2010, http://www.thepublicdiscourse.com/2010/12/2263 82 I also disagree that historical consummation law properly recognizes only coitus. If a generative act is necessary, ejaculation is the only candidate. Consensual coitus is neither necessary (witness rape) nor sufficient (high proportion of non-reproductive sex); whether the masturbation is via a vagina or a mouth or a hand is immaterial.

83 84

Wikipedia, Consummation, viewed 13 May 13, 2011. Some transgendered persons argue that the effort to determine their sex unnecessarily invades their privacy. 85 Supra note 2 at 268.

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