On the Nature of Marriage: a Further Response

By Dimmtri Christou

In response to Dr. Robert P. George’s article1 on the nature of marriage, Professor Koppelman explains that marriage is merely a legal convention, that, according to Koppelman, is ‚*…+ just a construct that has developed over time, and that therefore can be changed by human beings...‛2 Such is the principal and fundamental premise Koppelman brings forth to the discussion. Koppelman’s response, to make sense of what has been said, to Dr. Robert P. George, in what has been quoted above, was said in response to the notion that marriage is a pre-legal reality that is inherently good.3 Dr. George has responded effectively to Koppelman’s article here.4 Though, irrespective of Dr. George’s response this short article will concentrate on the essence of Koppelman’s argument, that marriage is merely a ‚construct‛ that is open for revision. Dr. George’s

Girgis, Sherif, George, Robert and Anderson, Ryan T., ‘What is Marriage?’, Harvard Journal of Law and Public Policy, Vol. 34, No. 1, pp. 245-287, Winter 2010. Available at: http://ssrn.com/abstract=1722155
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http://balkin.blogspot.com.au/2010/12/what-marriage-isnt.html

In Dr. Robert P. George’s article referenced above, published in the Harvard Journal of Law and Public Policy, it is explained that, ‚Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts—acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity.‛ This is the position that I maintain personally and will thus be maintained throughout this article. The view that is generally held contrary to the Traditionalist position, described in the preceding sentences, can be described as such, ‚Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable‛. This position can be generally referred to as the Revisionist perspective.
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http://www.thepublicdiscourse.com/2010/12/2263

response is sound though, as this article will maintain, in part incomplete. In this article as such the position that Koppelman maintains will be argued against as selfreferentially incoherent in comparison. The purpose of this short article is thus

concerned with the logical consequence of Koppelman’s position on marriage as a social construct. Not a lot can be said in response to what Koppelman has argued as Dr. George has already effectively responded back to what Koppelman has explained in response. It would therefore be unnecessary to engage an already refuted argument. Nevertheless, the purpose of this short article is to engage Koppelman’s argument where Robert George did not. It is the main contention of this article that Koppelman pulls the rug out from beneath his own feet as an individual who advocates Revisionist premiss. Koppelman maintains the position that, as quoted above, describes marriage as merely a social construct or rather a legal convention. The position Koppelman

maintains is as such one that could be described as legalistic in nature.5 For Koppelman appears to be grounding marriage within a framed social continuum, where marriage is believed to be the by-product of social laws that have been created whether naturally as a result of sociobiological processes or arbitrary whim rather than an institution that is grounded in reality independent of social convention. Koppelman’s position on the matter is distinct from the general Traditionalist position. Nevertheless, where

Koppelman attempts to refute what Robert P. George has said about marriage, Koppelman instead implicitly contradicts himself. With that being said, let us take in hand Koppelman’s main point.

The term ‘legalistic’ here can be defined as a position that describes rules of conduct grounded in a social continuum. The law thence is not predicated within pre-legal moral categories which are objective or universally binding but rather are relatively described in a cursory manner as they are contingent upon the historical reality described at that point of time. Koppelman’s position on the matter at hand can be defined as legalistic in part, regardless of whether or not the Prof. chooses to accept the position that has been described in this article.
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Koppelman in his response is effectively reacting to the idea that marriage as an inherent good is oriented toward personal communion and the bearing and raising of children. Though before this article engages Koppelman’s objection for the sake of the debate it is prudent to first outline the definitive perspective Koppelman is in point of fact engaging. The position Koppelman disagrees with is best outlined by Patrick Lee who has described marriage as ‚*…+ type of community in which the personal community, and the bodily, sexual relationship, are intrinsically oriented to the twofold good of personal communion between the spouses, and bearing and raising of children.‛6 What Patrick Lee outlines in his online article can be referred to as the general Traditionalist perspective. Koppelman unsurprisingly does not agree with Patrick Lee or Robert P. George on the nature of marriage. Koppelman instead

describes through the use of analogy in his article response that marriage does not have an ‚essence‛ just like ‚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.‛ 7 Marriage can be best described following Koppelman’s line of thought as conceptually relative. Thus

according to Koppelman there is nothing intrinsically significant and substantial about the nature of marriage per se.8 Marriage is more or less mere convention according to Koppelman. The following paragraphs of this the article will be oriented toward

Patrick Lee, "Marriage, Procreation, and Same-Sex Unions", Copyright © 2008, The Monist, Peru, IUinois 61354.
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http://balkin.blogspot.com.au/2010/12/what-marriage-isnt.html

If marriage has no essence then what can be said of the ‘essence’ of marriage for individuals who favour same-sex marriage and also believe that marriage has a definitive essence intrinsic to its nature? Koppelman seems to have spoken too soon. For this position certainly is categorically limiting and impartial where it instead should be in fact complete and accommodating. If marriage has no ‘essence’ then what is the point of even discussing this issue? We must first assume the meaningful nature of marriage if we are going to allege that the current marriage laws are incorrect. I fear a lack of nuance on Koppelman’s part has led to this unfortunate ontological distinction.
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illustrating the self-referentially incoherent nature of Koppelman’s position as it has been described above. As it has been defined in the previous paragraph, ‘marriage’ granted Koppelman’s position does not have an essence. If it is the case that marriage does not have an essence, that marriage is nothing but mere convention, then we are forced to ask ourselves the question: Is there any truly substantial reason which explains why same-sex couples ought to be able to marry? Social conventions, following what

Koppelman has said, are entirely illusory, as they are grounded within conditional premiss that historically speaking will fluctuate countless times just as the weather fluctuates on a daily basis in Melbourne Australia. Marriage therefore can be described as objectively meaningless granted Koppelman’s objection in his discussion with Robert P. George. But if this is the case then Koppelman’s position on the matter of marriage tells us nothing about why same-sex marriage ought to be instituted. Instead,

Koppelman’s position, a position that is utterly grounded upon fluctuating and hence contingent premiss, tells us exactly the opposite as Koppelman advocates a position that self-referentially removes the ‘ought’ from its foundational premiss in an implicit manner, leaving us with the question as to why we should change the current marriage laws in the first place. If there is no essence to marriage then there is no way marriage ought to be or ought not to be. This much can be said with certainty about

Koppelman’s position. What is more, it can be said that if marriage does not have an essence9 then there can be no way in which we can discriminate against the current marriage laws which prohibit homosexuals from marrying. Koppelman’s argument is for that reason entirely questionable.
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For it is mistaken to contend that because

The claim that marriage is without essence implies that marriage does not occupy moral categories that are grounded in reality. It can hence be said that to restrict homosexuals from receiving marriage certificates granted Koppelman’s position is not immoral or moral. For Koppelman’s position is not grounded in pre-legal categories. It is difficult to see how Koppelman could truly defend this position without first admitting that marriage intrinsically occupies moral categories.

marriage is merely a social construct or legal convention that is without essence the current marriage laws are incorrect as there would be no substantial comparison of marriage for the Revisionist to discriminate against. Koppelman’s position as it has been described is grounded upon contingent premiss and therefore does not satisfy relevant categories that are required in order for Koppelman to substantially begin arguing in favour of his position. Consequentially, Koppelman could respond to what has been said thus far by suggesting that same-sex marriage ought to be instituted for reasons grounded in legalistically prudential premiss. However, to follow this line of reasoning would be to beg the question in favour of legalism. This line of reasoning is therefore highly

unsatisfactory and unsound granted the conclusion drawn will not have explained why marriage is not pre-legal. As such, Koppelman wouldn’t be describing why legalism is true in comparison but rather Koppelman would be assuming the truth of the conclusion he wishes to substantiate. Koppelman will first need to illustrate why

legalism is true in comparison, if he chooses to follow this line of reasoning. Nevertheless, the criticism laid against Koppelman’s position thus far should suffice as it has been pointed out that Koppelman lacks any normative foundation upon which and from which he can begin to say that same-sex marriage ‘ought’ to be instituted. A secondary criticism has been utilized in anticipation of Koppelman chooses to follow the preceding path described. Koppleman’s conclusion, as such, which we must

assume that he believes is meaningful, tells us otherwise of the contrary. Within this article Koppelman’s position has been scrutinized as self-referentially incoherent. Relevant categories have been scrutinized in order to demonstrate that Koppelman’s position on same-sex marriage does not sufficiently satisfy the needs of the foundational premiss needed to begin arguing in favour of the position he maintains in any meaningful manner. As well, relevant definitions of the Traditionalist

and Revisionist perspective have been included within the main body of text and footnote section. Koppelman’s position on same-sex marriage has thus been described as meaningless and prudentially lacking and can therefore no longer be considered plausibly defensible in comparison to the Traditionalist position.

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