georgebradleymarriageandtheliberalimagination

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Unformatted text preview: S; I: VOLUME 84 DECEMBER 1995 NUMBER 2 THE GEORGETOWN LAW OUfiNAL ARTICLES FREE MARKETS DEEP IN THE HEART OF TEXAS BY JANE E. LARSON Subscribe Ifowowsgww to the Gen rgeta wn jaumal 0n ’ r: Nation in New! Fighting P0226?”ny ‘ HOMOSEXUALITY AND TIIE CONSERVATIVE MI, IDU ' I r , A v r Bu . 799 BY STEPIIEN MA(.EDO A; . 040 L6 If P 0044 i MARRIAGE AND TIIE LIBERAL IMAGINATION / BY ROBERT P. GEORGE AND GERARD V. BRADII 4770 } You can be an important part of this exciting new publication in a number of ways: ‘ V ‘ ; V e, . M _ Iv/ “ QUESTIONS OF PRINCIPLE, NOI PREDKTIONS. A REPLY TO A - become an annual subscriber and recelve two Issues per year; BY HADLEY ARKES 0 give gift subscriptions tO friends and colleagues; REPLY To CRITICS BY STEPHEN MACEDO 0 become a supporter Of the journal by giving a special donation above the subscription price; 0 write an article or an opinion piece; 0 send us information about a group interested in being included in our Resource Guide; and 0 help spread the word 7 we are new and need your enthusiastic support. Simply copy the form below and mail it to us with your check. For more information, or for submission guidelines, call us at (202) 662-9425. NOTES U.S.-CANADIAN INFORMATION SHARING AND THE INTERNATIONAL AN'I'II'RL‘S'I ENFORCEMENT ASSISTANCE ACT OE 1994 BY LAURIE N. FREEMAN I would like subscription(s) at $25 each for domestic subscriptions. 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THE GEORGETOWN LAW JOURNAL (lSSN 0016-8092) is published in November, December, February, April, May, June, and July by The Georgetown Law Journal Association, 600 New Jersey Avenue, N.W., Washing— ton, D.C. 20001. Second class postage paid at Washington, DC. and at additional oflices. Subscriptions are accepted for either the entire volume, which includes the Criminal Procedure Project issue, or the Criminal Procedure Project issue only. Subscriptions are payable in advance. Domestic: $40.00; Foreign: $50.00 per year; single issue: $10.00; Criminal Procedure Project issue for Volume 83: $30.00. Mailing address: The Georgetown Law Journal, Attn: Nerissa Phillips, 600 New Jersey Avenue, N.W., Washington, DC. 20001. Phone: (202) 662- 9468. Volume 82 and earlier issues can be obtained from William S. Hein & Co., 1285 Main Street, Buffalo, NY. 14209. Subscriptions are renewed automatically upon expiration unless the sub- scriber sends timely notice of termination. All notifications of change of address should include old address, including zip code, and new address, including zip code. Please notify one month in advance to ensure prompt delivery. POSTMASTER: Send address change to The Office of Journal Administration, 600 New Jersey Avenue, N.W., Washington, DC. 20001. Unless a claim is made for nonreceipt of Journal issues within three months of the mailing date, the Journal cannot be held responsible for supplying those issues without charge. All articles copyright © 1995 by The Georgetown Law Journal Association, except when otherwise expressly indicated. For all articles in which it holds copyright, The Georgetown Law Journal Association permits copies to be made for classroom use, provided that the user notifies The Georgetown Law Journal Association of having made such copies, that the author and The Georgetown Law Journal are identified, and that the proper notice of copyright is aflixed to each copy. Except when otherwise expressly provided, the copy- right holder for every article in this issue for which The Georgetown Law Journal Association does not hold copyright grants permission for copies of that article to be made for classroom use, provided that the user notifies the author and The Georgetown Law Journal Association of having made such copies, that the author and The Georgetown Law Journal are identified, and that proper notice of copyright is affixed to each copy. In accordance with the requirements of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, and the implementing regulations promulgated under each of these federal statutes, Georgetown University does not discrimi- nate in its programs, activities, or employment practices on the basis of race, color, national origin, sex, age, or disability. The University’s compliance program under these statutes and regulations is supervised by Rosemary Kilkenny—Diaw, Special Assistant to the President for Affirmative Action Programs. Her oflice is located in Room G—10, Darnall Hall, Georgetown University, and her telephone number is (202) 687-4798. As a matter of policy, The Georgetown Law Journal encourages the use of gender-neutral language. Unsolicited manuscripts for publication are welcome but can be returned only if accompanied by return postage. Stufient notes appear in alphabetical order according to last name. Marriage and the Liberal Imagination ROBERT P. GEORGE* AND GERARD V. BRADLEY* * In an article marked by the intelligence and fairmindedness for which his work is widely—and rightly—admired, Stephen Macedo has argued against our view that sodomy, including homosexual sodomy, is intrinsi- cally nonmaritall and immoral. His goal is to show that “new natural law”2 theorists, such as Germain Grisez, John Finnis, and the two of us, have no sound argument for drawing moral distinctions—which would, in turn, provide a basis for legal distinctions (particularly in the area of marriage)— between the sodomitical acts of “devoted, loving, committed homosexual partners”3 and the acts of genital union of men and women in marriage. We propose in this response to defend our view against Macedo’s criticisms. We heartily commend Macedo’s efforts to understand and accurately represent the view we defend. Nevertheless, we are not entirely happy with his formulations of it. Neither Grisez, nor Finnis, nor either of us perceives the central moral wrongness of sodomitical and other nonmarital sex acts as consisting in their being “distractions from” genuine human goods. A more adequate, though unavoidably more complex, formulation of our position is the following: (1) Marriage, considered not as a mere legal convention, but, rather, as a two-in-one-flesh communion of persons that is consummated and actualized by sexual acts of the reproductive type,4 is an ‘3’ 1995 by Robert P. George and Gerard V. Bradley. * Associate Professor of Politics, Princeton University. ** Professor of Law, University of Notrc Dame. 1. We hold that marriage, as a one-flesh communion of persons, is intrinsically, and not merely instrumentally, good. In marital acts—that is. sexual intercourse that consummates and actualizes marriage by uniting the spouses in a reproductive-type act. thus making them, in no merely figurative sense, two-in-one-flesh—spouses participate in this intrinsic good- ness. Because the biological reality of human beings is “part of, not merely an instrument of, their personal reality," the biological union of spouses in marital acts constitutes a truly interpersonal communion. John Finnis, Law, Morality, and “Sexual Orientation," 69 NOTRE DAME L. REV. 1049, 1066 (1994). Sodomitical acts, by contrast, lack this unitive capacity, and thus cannot actualize marriage. Such acts are, therefore, nonmarital even when per- formed by persons who are married to each other. It is precisely in this sense that sodomy is intrinsically nonmarital. 2. Stephen Macedo, Homosexuality and the Conservative Mind, 84 GEO. LJ. 261, 264 (1995). 3. Id. at 279. 4. The concept of a reproductive-type act is biological-functional. It refers to the species- specific pattern of behavior suited to the reproductive function. Although that function is completed only if certain nonbehavioral conditions also obtain, the pattern of behavior remains the same even if those conditions do not obtain. The reproductive-type acts of humans and other mammals are acts of inseminatory union of male with female genital organs. The freely chosen reproductive-type acts of spouses are marital in that they actualize and enable the spouses to experience their interpersonal communion, of which such acts are the biological matrix. It is important to see that, though all marital acts are reproductive in 301 302 THE GEORGETOWN LAw JOURNAL [Vol. 84:301 intrinsic (or, in our parlance, “basic”) human good; as such, marriage provides a noninstrumental reason for spouses,5 whether or not they are capable of conceiving children in their acts of genital union, to perform such acts. (2) In choosing to perform nonmarital orgasmic acts, including sodomitical acts—irrespective of whether the persons performing such acts are of the same or opposite sexes (and even if those persons are validly married to each other)—persons necessarily treat their bodies and those of their sexual partners (if any) as means or instruments in ways that damage their personal (and interpersonal)6 integrity;7 thus, regard for the basic human good of integrity provides a conclusive moral reason not to engage in sodomitical and other nonmarital sex acts.8 Macedo attacks the claims we have formulated in (1) above by offering to show that whatever values can possibly be realized in the acts of genital union of sterile spouses can equally be realized by those spouses—or similarly committed couples, whether of the same sex or opposite sexes—in oral or anal sex acts. His challenge to proponents of the natural law position is to identify a valid reason for sterile married couples to engage in acts of genital union that is not, at the same time, a valid reason for such couples (or others, married to each other or not, fertile or infertile, “gay” or “straight”) to engage in oral or anal sex if they prefer or desire it. In effect, Macedo denies that what we refer to as the “reproductive-type acts” of spouses can have the special value and moral significance we type, not all reproductive-type acts are marital. Acts of fornication and adultery can be reproductive in type, though they are intrinsically nonmarital. And even the reproductive- type acts of spouses lose their marital quality when they are wholly instrumentalized to ends extrinsic to marriage. See infra text accompanying notes 19-21. The marital quality of spousal intercourse is not vitiated, however, by the fact that reproduction is impossible for all married couples most of the timeidue to the periodic infertility of the female spouse, even during her fertile years, and eventually the permanent loss of fertility with age—and for some married couples all of the time—due to some defect in the functioning of reproductive organs. 5. “Marriage, reproductive—type acts," and "spouses" are thus so‘interdefined that (as would have gone without saying down to yesterday) marriage is inherently heterosexual and a man’s spouse is necessarily a woman (and vice versa)—and the terms are used in this way throughout our response. This terminology begs no questions, because we confront and respond openly, and with reasons, to all the relevant questions in appropriate terminology. 6. We believe that acts that damage personal integrity also damage interpersonal integrity in two ways: first, they unavoidably damage the ability of persons performing them to relate properly to others as bodily persons; second, in acts in which two or more persons cooperate in immorality, they also damage the integrity of their specific relationship, which, like every friendship, is perfected precisely by cooperation in good and upright activities. 7. Although we do not make the argument here, we follow Griscz in holding that nonmarital sex acts also damage the capacity of persons for bodily self-giving in marriage. Also, note that we use the term “integrity” for what Grisez refers to as “self-integration.” 8. Paul Gilbert has observed that “(flew philosophers have developed an ethic of sexuality as something other than an appetite requiring regulation." Paul Gilbert, Sexual Morality, in THE OXFORD COMPANlON To PHILOSOPHY 825 (Ted Honderich ed., 1995). As this formulation of our position makes clear, those of us associated with what Macedo calls “the new natural law theory” are among the few. n u 1995] MARRIAGE AND THE LIBERAL IMAGINATION 303 ascribe to them. He attempts to show that we hold a “double standard” in maintaining (a) that sodomitical acts cannot be marital; and (b) that penile-vaginal acts, even of spouses who know (or at least believe) them- selves to be temporarily or permanently sterile, can be marital." Macedo also rejects the claims we have formulated in (2) above about the damage to personal (and interpersonal) integrity, and hence, the intrinsic immorality, of choosing to perform nonmarital orgasmic acts. He affirms, and claims that many people will find it “deeply unreasonable”10 of us to deny, that pleasure (including sexual pleasure) is a good in itself and, as such, provides a basic reason for acting. Relatedly, he argues that there is something implausible about our claim that it is necessarily wrong for persons sometimes to use their bodies as mere instruments in the pursuit of pleasure and other extrinsic goals. He attempts to show, by way of a reductio ad absurdum, that the principle that we believe excludes sodomitical and other nonmarital sex acts as immoral would, on our argu- ment, also exclude as immoral such obviously innoeent pleasures as ehew- ing sugarless gum, “which gives pleasure but has no nutritional value."ll In Part I of this response, we rebut Maeedo’s charge of maintaining a double standard in holding that acts of genital union of sterile spouses can be marital and, as such. intrinsically good, while sodomitical acts are intrinsically nonmarital. In Part II, we reply to his critique of our claim that nonmarital sex acts damage integrity and are thus morally bad, and we suggest that, in rejecting central tenets of our view, he undermines his own apparent moral objections to promiscuity and to the sexual liberationist ideology that licenses it. And in Part III, we reply to some claims he makes regarding the political relevance of our view of marriage and sexual morality. I. THE ABsENCE OF A DOUBLE STANDARD Macedo asks: “What is the point of sex in an infertile marriage?”'3 We answer that the point of sex in such a marriage is exactly the same as the 9. See Macedo, supra note 2, at 278—81. It is important to notice that nothing in our claim that sodomitical acts are intrinsically nonmarital, or in Macedo’s strategy for rebutting our claim, turns on whether the acts in question are performed by persons of the same sex or of opposite sexes. We do not hold—indeed, we denyvthat oral or anal sex acts can consum- mate and actualize heterosexual, but not homosexual, marriages. Macedo does not argue that such acts can consummate and actualizc homosexual, but not heterosexual, marriages. We maintain that only the reproductive-type acts of spouses can be marital. Macedo denies that acts of penile-vaginal intercourse between spouses that cannot be reproductive—or, at least, acts that are known (or thought) by them to be incapable of being reproductive—can have value and significance that is lacking in other orgasmic sexual acts that‘lhey (or persons in similar relationships of commitment) might perform for the sake of pleasure, feelings of closeness, or some other end or combination of ends. See id. 10. Id. at 282. 11. Id. 12. Id. at 278. 304 THE GEORGETOWN LAW JOURNAL [V0]. 84:301 point of sex in a fertile marriage, namely, the intrinsic good of marriage itself, which is consummated and aetualized in marital acts. But isn’t procreation the point of sex in fertile marriages, at least according to the natural law tradition? It is true that St. Augustine, among others, seems to have treated marriage as a purely instrumental good whose primary value has to do with procreation and the nurturing of new human beings.13 Others, however, including Grisez, Finnis, and ourselves, reject the instrumentalizing of marriage and marital intercourse to any extrinsic end, including the great good of having and rearing children.14 In our view, children conceived in marital intercourse participate[5 in the good of their parents’ marriage and are themselves noninstrumental as- pects of its perfection; thus, spouses rightly hope for and welcome chil- dren, not as “products” they “make,” but, rather, as gifts, which, if all goes well, supervene on their acts of marital union.“ The intrinsic intelligible point of the sexual intercourse 0f spouses, however, is, in our view, marriage itself, not procreation considered as an end to which their sexual union is the means. Macedo’s argument against our position presupposes that the point and 13. See. tag. St. Augustine, De bono coniugali (9.9), in SAINT AuousTINE: TREATIsEs ON MARRIAGE AND OTHER SUIIJLt‘Ts 21-22 (Charles T. Wilcox et al. trans, 1955). 14. See, e.g.. Germain (irisez, The Christian Family as Fulfillment of Sacramental Mar- riage, Paper Delivered to the Society of Christian Ethics Annual Conference (Sept. 9, 1995) (unpublished manuscript, on file with The Georgetown Law Journal). 15. On the idea of basic goods as “participated in" by persons, see JOHN FINNIs, NATURAL LAw AND NATURAL RIGIITs 64 (1980). On the participation of children in their parents’ marriage, see Grisez, supra note 14, at 1-8. What Grisez says in these pages pertains to marriage as a natural (and basic) human good, and not exclusively to sacramental marriage as fulfilled by the Christian family. His theological treatment of marriage as a sacrament follows. Id. at 8-10. 16. This understanding of children as gifts to be accepted and valued for their own sake—rather than as objects that may be willed and brought into being for one's own purposes—obviously coheres well with certain theistic metaphysical views, including Jewish and Christian views. It can, however, also be accommodated by Buddhist and certain other nontheistic views. We believe that some understanding along these lines of the moral relationship of parents to the children they may conceive is essential to the rational affirmation of the dignity of children as persons: i.e., as ends in themselves, and not mere means of satisfying desires of their parents; as subjects ofjustice (including fundamental and inviolablc human rights), rather than objects of will. Alternative understandings, we believe, run into severe difficulties in explaining why children may not properly be understood—and rightly treated—as the property of their parents. Liberals are often puzzled by the tendency of natural law theorists—“new” as well as old—to object on moral grounds to the production of human beings by in vitro fertilization. After all, the natural law tradition strongly affirms the goodness of transmitting life to new persons. Why, then, should couples who are incapable of begetting children in acts of marital intercourse not resort to in vitro processes in order to become parents? The short answer is that the manufacturing of c...
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