A Constitutional Defense of Marriage
By Robert P. George
If marriage were simply a form of sexual-romantic companionship or domestic partnership, then the equal protection clause of the Constitution’s Fourteenth Amendment would require the Supreme Court to strike down state laws limiting marriage licenses to male-female partners.
There would be no principled basis for distinguishing opposite- from same-sex relationships—or, for that matter, from multiple-party (“polyamorous”) ones. Any two (or more) people can feel affection for one another, believe that the quality of their relationship is enhanced by mutually agreeable sexual acts, and make a commitment to caring and sharing. So if our law understood these things as the essence of marriage, then restricting it to two-person, opposite-sex partnerships would be invidiously discriminatory—a denial of equal protection.
Historically, however, our matrimonial law has not conceived marriage as mere sexual-romantic companionship or domestic partnership; nor is there anything in the text, logic, structure, or historical understanding of the Constitution that commits the nation to such a conception of marriage.
In fact, the Constitution does not attempt to settle the question of how marriage should be defined. It dictates no choice among competing conceptions of what marriage is. It does not, for example, forbid polygamy or require states to permit it. Nor does it choose between marriage conceived as a genderless institution and marriage as the conjugal union of husband and wife. Rather, the Constitution leaves the choice among competing conceptions of marriage where it leaves most policy questions, namely, to the judgment of the people and their elected representatives.
A Defense of State Marriage Laws
So, historically, how have the states understood and defined marriage?
They have understood and defined it as a relationship shaped by the needs of children for mothers and fathers, rather than as an institution whose purpose is to serve the interests or desires of adults by facilitating sexual-romantic companionship. Our laws, including those under review in the cases now pending before the Supreme Court, reflect the judgment that marriage is the conjugal union of spouses, rooted in the sexual-reproductive complementarity of male and female, which brings together a man and a woman as husband and wife to be father and mother to any children born of their union. As a social institution, it aims to secure for children the inestimable blessing of being brought up in the committed love—the marital bond—of the man and woman whose union brought them into being, and the related benefit of both maternal and paternal influences and care.
This understanding of marriage as a conjugal union recognizes that not all married couples will have children, though most will. But it responds to the biological fact that every child will have a mother and a father, and recognizes the psychological reality that children generally long to know and be known by, and to love and be loved by, both their fathers and their mothers. And it is built upon the fact that the social purpose of legally recognizing and supporting marriage as an institution—the goal that gives the state any legitimate interest in marriage—is to ensure that as many children as possible are brought up by their father and mother in the marital bond. After all, the state has no interest whatsoever in the romantic lives of its citizens as such.
But what about the fact that some married couples cannot have children? Does that show that marriage cannot really be a conjugal relationship, but does in the end boil down to sexual-romantic companionship?
No. Our law, and the traditions of thought that have informed and supported it, have always understood marriage as the type of relationship that would naturally be fulfilled by the spouses having and rearing children together. And sexually complementary spouses can enter into precisely that type of relationship even when one or both happen to be infertile.
This understanding of the matter simultaneously and perfectly coherently holds two important truths: (1) the very idea of marriage is rooted in the male-female complementarity that makes sexual reproduction possible, and (2) the value of marriage cannot simply be reduced to its utility as a means to the end of having and properly rearing children. Men and women are so constituted that being in a marriage—a sexually complementary relationship that, as such, is naturally ordered to procreation and that would be fulfilled by having and rearing children together—is valuable in itself, and not merely as a means to something else, even where that something else is the great good of having and rearing children.
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