Academic

The Loving Analogy: Yes or No?

By Kevin Maillard

Robert George, professor of jurisprudence at Princeton, has written an op-ed in the Wall Street Journal on gay marriage.  His basic argument is this: redefining marriage to include same-sex unions would contradict the democratic process if courts intervened.  Citing California's Prop 8, he argues that voters, and not judges, "restored the historic definition of marriage in that state as the union of husband and wife."  To declare this measure unconstitutional would impose a "raw act of judicial power."

But the most interesting aspect of the column is the discussion of Loving v. Virginia as a failed analogy for marriage equality.  Likening gay marriage to interracial marriage, George argues, fails to recognize that heterosexual interracial marriages are capable of reproduction.  Even if married couples do not have children, their generative acts (i.e. "bodily unity") are what distinguish them from other friendships.

The passage in question:

Lawyers challenging traditional marriage laws liken their cause to Loving v. Virginia (which invalidated laws against interracial marriages), insinuating that conjugal-marriage supporters are bigots. This is ludicrous and offensive, and no one should hesitate to say so.

The definition of marriage was not at stake in Loving. Everyone agreed that interracial marriages were marriages. Racists just wanted to ban them as part of the evil regime of white supremacy that the equal protection clause was designed to destroy.

Opponents of racist laws in Loving did not question the idea, deeply embodied in our law and its shaping philosophical tradition, of marriage as a union that takes its distinctive character from being founded, unlike other friendships, on bodily unity of the kind that sometimes generates new life. This unity is why marriage, in our legal tradition, is consummated only by acts that are generative in kind. Such acts unite husband and wife at the most fundamental level and thus legally consummate marriage whether or not they are generative in effect, and even when conception is not sought.

This strikes me as interesting.  If marriage is founded on the physical act, which he alludes is the historical foundation of matrimony, does this legitimate sexual conduct between men and women while rendering "bodily unity" between same sex couples as deviant?  If that argument is true, would it not run afoul of  Lawrence?  Furthermore, it draws a very poignant sore spot for some civil rights proponents, who wish to exclude sexual orientation from the umbrella of equality.  From this aspect of equality, freedom to select a partner of one's own choosing does not include same-sex marriage.

Full post as published by The Faculty Lounge on August 05, 2009 (boomark / email).