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SEXUAL ORIENTATION AND THE LEGAL REGULATION OF MARRIAGE
BRADLEY W. MILLER1
I.
INTRODUCTION
Over the past decade, debate over the legal recognition of same-sex marriage has swept
through the Western democracies. In many jurisdictions, the matter is now settled in favour of samesex marriage, whether accomplished through legislation or judicial fiat. In those jurisdictions, the
change was described as modest and incremental: a simple matter of replacing the phrase “one man
and one woman” with “two persons”.2 The existing institution of marriage would be left unchanged,
according to this account. All that would change would be that gays and lesbians would no longer be
excluded from it. This was, it was said, a straightforward requirement of equality and justice – of
providing access to a social and legal institution to a minority group that had suffered discrimination.
Some governments resisted the demand for same-sex marriage on the basis that the reality of marriage
is, in some way, linked to biological capacities, and that the reality was that it was biologically impossible
for two men or two women to enter a marriage. When it came to constitutional litigation, this defence
of the biological nature of marriage was either dismissed out of hand,3 or characterized as a
disingenuous pretext or a rationalization of animosity towards gays and lesbians.4 The antidiscrimination narrative – that is, the “access to marriage” argument – prevailed over the “nature of
marriage” narrative.
But even in jurisdictions where arguments about the nature of marriage were pushed to the side
as rationalizations of contempt, and where same-sex marriage is the new status quo, public debate over
the nature of marriage has returned to the foreground. As it happened – and whatever the intentions of
1
Assistant Professor, Faculty of Law, the University of Western Ontario.
The common law definition of marriage is often cited from Hyde v. Hyde: marriage is a “voluntary union for life of
one man and one woman, to the exclusion of all others.”
3
Halpern v. Canada (AG), (2003) 65 OR (3d) 161, para. 122 (Ont CA).
4
Halpern v. Canada (AG), (2002) 60 OR (3d) 321, para. 242 (Div. Ct).
2
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the same-sex marriage advocates – the achievement of same-sex marriage has not been the end of the
debate about what marriage is or ought to be. After the confetti had settled from the first same-sex
marriages, new claimants emerged to demand that their relationships also be recognized as legal
marriages. In Canada at least, polygamous Mormons and Muslims and polyamorous households of
every permutation are now advancing claims for state toleration and recognition of their relationships
as marriages or as families.5
Must the state now recognize, foster, and support these forms of relationship? Must it
recognize them as marriages? The persons in these relationships now ask, quite understandably, for a
principled explanation as to why law and political morality apparently require the legal recognition of
unions between two persons of the same sex, but do not require similar recognition of their unions. If
the change from “one man and one woman” to “two persons” was said to be small and incremental,
how much smaller, they ask, is the change from “two persons” to “two persons or more”?
It is now becoming apparent that the anti-discrimination narrative is an inadequate account of
what is really in issue in these marriage debates. There is considerable social disagreement not simply
(or even primarily) over who should have access to marriage, but over the more fundamental question
of the meaning (or structure) of marriage itself. The claim for recognition of same-sex marriage rested
on a superficial analogy between same-sex marriage and heterosexual marriage, culminating in the
conclusion that both are simply forms of voluntary, committed, emotional union. But the reduction of
marriage to an emotional union comes at a cost to a society, and cannot provide a satisfactory
foundation for any of the norms of marriage that most people would like to preserve. A satisfactory
account of marriage must be able to explain why the state has any interest in marriage, as well explain
5
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the remarkable consensus of previous centuries (reflected in both common law and civil law traditions)
on the norms of marriage.
In the first section of this paper I will explore two rival accounts of marriage (call them conjugal
and constructivist), before moving, in the second part, to consider a question of political morality:
whether the liberal state has a genuine interest in identifying, promoting, and protecting any one
conception of marriage. The conception of marriage underlying the same-sex marriage debate fails, I
will argue, to explain the state’s interest in marriage, and cannot provide any convincing arguments
against polygamous marriage.
II.
COMPETING CONCEPTIONS OF MARRIAGE
I am in the unfortunate position of being a common law lawyer trained addressing an audience
in a civil law jurisdiction. So I have to warn you that much of what I have to say about the legal history
of the definition of marriage is drawn from the common law. Fortunately, to the best of my
understanding, on the question of what constitutes a marriage there is no significant difference
between the historical positions of the common law and the civil codes of Spain and other civilian
jurisdictions.
1. The conjugal conception of marriage
To begin, then, with the conjugal conception of marriage. Until comparatively recently, what I
can refer to compendiously as “western law” reflected a consensus on a conception of marriage as an
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institution that served two human goods: (1) the union or fides of the spouses and (2) good of
procreation.6
According to this conception – call it traditional, call it conjugal – marriage is understood as: (1)
as comprehensive union of spouses, with (2) a special link to children, and (3) governed by norms of
permanence, monogamy, and exclusivity.7 The twin goods of marriage – that is, the comprehensive
union and procreation – give marriage its rationale, and the norms of marriage (permanence,
monogamy, and exclusivity) give marriage its structure. The structure (or norms) of marriage are what
they are, in order to contribute to the human goods (or if you prefer, the aspects of human flourishing
or wellbeing) identified as goods of marriage. So in order to understand the conjugal conception of
marriage, it is necessary to consider in which ways marriage contributes to the flourishing of people who
are both mind and body.
(a) Comprehensive union
First, let us consider what it means for marriage to be a comprehensive union. It is common
ground among all conceptions of marriage that marriage is some form of union or community or
friendship or association. There are, of course, many forms of community and friendship, but the
marital friendship differs from all of these – not in the existence of romantic feelings – but rather in its
comprehensive nature. Only the marital friendship has, in its definition, the union of not merely will or
purpose but of body.
6
This account of the conjugal conception of marriage is drawn from Sherif Girgis, Robert P. George, and Ryan T.
Anderson, “What is Marriage?” (2010) 34 Harvard Journal of Law & Public Policy 245; Patrick Lee, “Marriage,
Procreation, and Same-sex Unions”, (2008) 91 The Monist 422; John Finnis, “Marriage: A Basic and Exigent Good”,
(2008) 91 The Monist 388; Gerard V. Bradley, “Law and the Culture of Marriage” (2004) 18 Notre Dame J.L. Ethics
& Publ. Policy 189; Germain Grisez, Living a Christian Life (1993) 553-83.
7
Girigis, George, Anderson, p. 252.
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All forms of friendship require some degree of sharing of one’s life, and require some unity of
purpose and regard for the other’s well-being. Obviously, this degree of cooperation and community
varies greatly among various types of friendship. The amount of cooperation can be very limited as
among, for example, those who cooperate with each other solely for joint success in discrete projects
like a business transaction or a game. Or the association can be richer, as with friends who actively seek
the other’s good and coordinate their lives out of mutual affection. Even this latter, richer sense of
friendship, admits of degrees. The closest of friendships require that one act not only to further one’s
own good and the good of one’s friend, but also to act deliberately so as to promote the friendship
itself. 8 Owing to the finiteness of one’s time and attention, one can have only a limited number of very
close friendships.
Marriage, while a form of friendship, is radically different from non-marital friendship, and not
simply because of romantic attachment or the degree of cooperation and interdependence between
spouses. It is of course possible to spend more time with, and to coordinate more activities with, a coworker than one’s spouse. But no matter how much time and effort one spends in coordinating one’s
activities with a friend – to design a building, or write a book, or repair a car – this coordinated action
will be limited in its nature. It will be non-comprehensive. While marriage includes the unity of mind
and will that is common to close friendships, it includes a further dimension of unity. It is this extra
dimension – what is called organic bodily union – that separates marriage from other forms of
friendship, including other forms of intimate association.
To be a comprehensive union requires sharing of all aspects of one’s person. This includes not
only the mind and will, but also the body. And the form of bodily sharing (or physical integration) that is
proper to marriage is different from other forms of co-ordinated physical action, like moving a piano or
8
See Michael Pakaluk, The Philosophers on Friendship; Finnis, Natural Law and Natural Rights, pp. 141-44.
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performing a dance. The organic bodily union on which the common law conception of marriage is
built, requires a union of one person’s body with another person’s body to fulfill some organic purpose;
that is, some purpose of the living organism.
Most of the human body’s organic functions (such as respiration, digestion) are performed
completely by the individual. There is no role for anyone to play in anyone else’s respiration or
digestion or growth. The sole organic function that not only admits of cooperation of another but
requires it, is sexual reproduction. It is the one organic function that cannot be performed
independently. Neither can it be performed with a person of one’s own sex, or with more than one
other person. That is not to say that sexual acts can only be performed between one man and one
woman; only that sexual acts of the generative type can only be performed by one man and one woman
together. And the only way in which a man and a woman can unite organically (that is, coordinate their
individual actions towards achieving an organic end that neither can achieve independently) is in the act
of coitus. Organic bodily unity results when a man and a woman unite their sexual organs in a manner
that is conducive to conception.9
Of course, a generative sexual act, does not of itself constitute a comprehensive union. It is
simply one necessary component among others. The common law (and the Roman law and canon law
that informed it) insisted that to be truly marital, the generative sexual act must be (1) voluntary (in the
sense that it must be of one’s free will), and (2) it must be intended by both parties as an expression of a
permanent and exclusive commitment to each other.10 Only when these further conditions are met can
coitus constitute a marital act. A unity of mind and will are required before an act of coitus can be
constitutive of a comprehensive union. A mere sexual act – even of the generative kind – cannot, of
itself, constitute a comprehensive union any more than a mere sharing of mind and purpose (without
9
Girgis, George, and Anderson, pp. 253-55.
Girgis, George, and Anderson, pp. 254-55.
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the marital act of intercourse) can constitute a comprehensive union. Each in themselves are
incomplete.
The comprehensive union entails fides between spouses, which is wider and richer than what is
ordinarily termed “faithfulness”; it is not simply a matter of abstaining from sexual infidelity. It is, as
rendered by Finnis, “the willingness and commitment to belong to, and be united in mind and body
with, one’s spouse in the form of societas and friendship that we call marriage.”11 Fides points to the
marital norms of mutuality and bilateral exclusivity.
(b) Procreation
The second good of marriage – often called procreation – is rationally linked to the first. It is not
difficult to understand that marriage is in some way connected to children; across cultures and across
centuries, marriage has been understood as having something to do with having children and nurturing
and educating them. This second good, or end, of marriage is premised on this special link between
marriage and children. Procreation, as a marital good, should not be understood simply as the good of
the lives of the children who are the product of the marriage, but it includes the good of the parents in
being parents and living this further life of community as parents together, both for their own benefit
and for the great benefit of their children.12
Aquinas famously argued that we can best understand the nature of some object of observation
by considering its capacities, that we can best understand its capacities by considering its acts, and
finally, we can best understand its acts in terms of the objects (or reasons for those acts).13 This is a
fruitful strategy for understanding friendships and associations in general, and marriage in particular.
11
Finnis, Aquinas, supra note 16 at 145, see also Finnis, Marriage, supra .
Grisez
13
Finnis, Aquinas, pp 29-34.
12
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Friendships, I have argued, are actualized in actions (including communications) by which one friend
seeks to understand and promote the other’s good, including any shared goods of the friendship. So
the friendship of football players, for example, is embodied in the playing of a game, which involves
coordinating their physical movements towards scoring goals and preventing goals from being scored
against (and the countless moves and strategies intended to contribute to those events), all of which
have as their ultimate object the winning of a football match.
Similarly, we can inquire into the nature of marriage by asking about its acts and ends. It is easy
to understand how the countless acts of cooperation and intimacy between spouses are oriented
towards the growth and maturity of their friendship, towards the marital good of fides. But what can be
ascertained from contemplating the distinctive sexual act that is necessary to consummate, or
complete, a marriage on the conjugal view of marriage (and at common law)?14 The nature of coitus is
that – uniquely among human actions – it has the capacity (without any further actions being taken) to
result in the conception and, ultimately, birth of a child. There is thus an obvious link between the
distinctive act that establishes a marriage and procreation. Marriage, on this conception, is understood
by this link to the conception of children.
It is of course the case that not all sexual acts of the generative type in fact result in conception.
Over the ordinary course of a woman’s biological cycle, she will be infertile more days that not. And of
course some couples will be completely infertile. What is the significance of these facts for the conjugal
conception of marriage? Are marriages that do not produce children not true marriages?
Not at all. At common law, marriage has always been completed by a generative sexual act,
irrespective of whether children – or even conception – in fact resulted. Significance attaches to the act
that is within the control of the couple – that is, the sexual act – and not the results of the act, which are
14
A marriage that has not been consummated is voidable at the instance of the parties.
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entirely beyond their control. If it were otherwise, marriage would be dependent not on the will and
actions of the couple, but on the random success of sperm penetrating an egg.
I should also clarify that a sexual act alone cannot constitute a marriage. Just as a union of
hearts and minds cannot constitute a marriage in the absence of bodily union, mere bodily union cannot
stand alone. The consent of the spouses to unite themselves in a permanent union is indispensible to
making a sexual act a truly marital act. So the mere act of engaging in sex cannot constitute a marriage.
Neither can the act of co-parenting children constitute a marriage if there is no intention or
commitment to be married and live the life of marriage.
(c) Norms of marriage
To sum up, on the conjugal conception of marriage there are two human goods that marriage
serves: the good of fides or friendship between the spouses, and the good of procreation. And both of
these goods are served through marriage being a comprehensive union of mind and body. These goods
of marriage help explain why marriage as a social institution has been valued across cultures and time
periods. They can also explain some of the norms of marriage that, at common law, have given
marriage its distinctive structure. These are the norms of permanence and exclusivity.
At common law, marriage is exclusive, meaning that a person cannot be married to more than
one person at a time. It is also permanent, meaning that the marital commitment is to last until death
Both of these norms are entailed by the concept of the comprehensive union. For a union to be truly
comprehensive means that it cannot admit of more than two persons. Underlying the fides of marriage
is the understanding that the marital unity is destroyed by infidelity. Infidelity is not a matter of sharing
the goods of marriage more broadly, but of destroying the exclusivity, the fides that gives marriage its
distinctive point. Undermining the marital union, the attentions and devotion of the unfaithful spouse
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are turned from his or her own spouse and their children to others. Of course there are a great many
ways for a spouse to undermine the marital union other than through infidelity. The family law reports
are full of them; we can start the list with all-consuming careerism and general neglect and run through
to verbal and physical assault. But the common law does not view these forms of indifference, neglect,
and contempt as an inherent repudiation of the marital bond. As destructive and blameworthy as they
are, infidelity is uniquely a repudiation of the bodily sharing between spouses.
Considering the norm of marital permanence, it is simply marital exclusivity viewed across an
extended temporal period.15 Like exclusivity, permanence is a manifestation of the comprehensiveness
of the marital union. Unlike exclusivity, the norm of permanence has been under considerable pressure
culturally and the western democracies have all made legislative provisions for divorce. But while
divorce is hostile to, and undermines, the conjugal conception of marriage, divorce is not a complete
repudiation of the norm of permanence. Divorce has been introduced legislatively and was not
recognized at common law. The liberalization of divorce laws across the past fifty years has been
massively destabilizing to the family. It is possible to overstate, however, the degree of damage that
liberalized divorce laws have done to the rationale of marriage. Marriage is no longer indissoluble, but it
still holds (albeit imperfectly) to the norm of permanence. Legal marriages remain open-ended in that
they are entered into with the presumption of permanence. Although marriages are dissoluble at the
instance of one or both parties, they do not – in any legal system with which I am familiar –
automatically terminate, or come up for renewal, after a set period of time or on the occurrence of
some predetermined event.
These two norms of marriage are challenging and constrictive and they pull against powerful
human desires. Why should the conjugal conception require them? While stability is valuable to any
15
See Girgis, George, and Anderson.
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human relationship, why should there be legal rules governing marriage and not other forms of
relationship (even sexually intimate relationships)? The explanation comes from marriages’ link to
procreation. If marriage is an institution which is partially constituted by an act that produces children,
it makes sense that it be shaped by norms that are conducive to the well-being of those children. Even
at a time before these matters were studied in earnest by social scientists, it was readily apparent that
the social and economic well-being of children is threatened by marital instability and divorce.
To sum up: the traditional conception presents marriage as a two-fold good, a relationship that
is intrinsically oriented towards two things: (1) the personal community, or fides, or friendship of the
spouses, and (2) the bearing and raising of children.16 The conjugal conception of marriage, which holds
procreative acts and the well-being of children in the foreground, identifies particular human goods and
establishes norms to serve them, for the benefit of both adults and their children. These norms of
exclusivity and permanence are of great value to shaping the expectations and conduct of adults and
benefit adults. But they are essential to providing stability to the lives of children, which is the primary
reason that the law takes an interest in marriage at all.
2. Constructivist conceptions of marriage
The conjugal conception of marriage as outlined above was adopted into the western legal
systems centuries ago. With the partial exception of the divorce reforms of the past 50 years,17 the legal
16
See Patrick Lee, “Marriage, Procreation, and Same-sex Unions”, (2008) 91 The Monist 422 at 423 [Lee, Marriage,
Procreation].
17
I call this a “partial exception” only, because while the liberalization of rules governing divorce weakened the
correspondence between the conjugal conception of marriage and the law of marriage, it did not purport to
abolish the concept of marital permanence altogether. As viewed by the law, marriages (like parenthood) remain
open-ended relationships.
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conception of marriage has remained consistent with, and is explained by, the conjugal conception with
its distinctive structure and rationale.
While there has been great continuity in the western marriage tradition over the last millennia –
particularly in that marriage has been consistently understood as a monogamous and heterosexual
institution – this consensus conception of marriage has been challenged by what John Witte terms the
Enlightment conception, with its emphasis on the contractual aspect of marriage.18 While the
Enlightenment conception placed greater emphasis on the will of the parties rather than the union of
the body, it did not challenge the structure or norms of marriage or the requirement that marriage had
to be consummated before it was legally valid.
In recent years, however, the contractual aspect of marriage that the Enlightment conception
emphasized has been taken in a direction that is fundamentally incompatible with – and hostile to – the
conjugal conception of marriage. There is now a fundamental conflict with respect to marriage in
western culture – and law – between: (1) the conception of marriage as a natural institution that
corresponds to human nature and what is needed to fulfill it, and (2) voluntaristic conceptions of
marriage that hold marriage to be a matter of social convention that ought to be shaped and reshaped
to meet the needs and desires of adults.19 The difference between these two conceptions rests on
competing understandings of human nature and reality: the former reflects a belief that there are basic
goods (aspects of human well-being) that all human beings are inclined towards, and that the fulfillment
of human beings – and thus the common good of human communities – depends on the ordered pursuit
of those goods, while the latter denies such an account of human fulfillment. The difference between
these two conceptions has also been explained in terms of the former being a child-centred conception
18
John Witte, Jr., From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition (Louisville,
Kentucky: Westminster John Knox Press, 1997) 194-215.
19
Robert P. George, The Clash of Orthodoxies: Law, Religion, and Morality in Crisis (Wilmington, DE: ISI Books,
2001) at 75-90. Also see Witte, Sacrament to Contract, supra note 23.
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of marriage and the latter being an adult-centred conception that gives priority to the needs and
fulfillment of adults.20
Call it constructivist or voluntaristic or conventional, this conception of marriage is at the root of
the arguments made for the recognition of same-sex marriage and now for the legal recognition of
polygamous marriage and polyamorous relationships. The constructivist conception is committed to the
proposition that marriage is a conventional social institution, and that its construction should not be
bounded by any facts about human nature and the conditions of human flourishing. In particular, the
constructivist conception rejects any inherent link between marriage and children. It focuses instead on
the union of minds, and defines marriage in terms of formal commitment to one or more other persons
(admitting of various degrees of intensity and duration) together with some form of sexual intimacy.
It is difficult to say much in general about the constructivist conception of marriage. With the
conjugal conception, one can look back over hundreds of years of social practice, law, and theoretical
accounts of marriage that have both described common practice and had great influence in maintaining
law and practice. But the nature of the constructivist conception is that it is random and ad hoc. The
best that one can do is to take the various demands of those persons who have sought to overthrow the
conjugal conception, and try to pull out some common threads.
Among the advocates for same-sex marriage, little is said about the nature of marriage, other
than the proposition that marriage should be remade as a union of two persons rather than one man
and one woman. That said, there is clearly no concept of consummation of marriage in the same-sex
context. While some same-sex partners parent children together, there is no inherent link to the
bearing and raising of children. Same-sex marriage thus does not share the rationale and internal
coherence of conjugal marriage. However, same-sex marriage does seek to attorn to the norms of
20
See “Marriage and the Law: A Statement of Principles” Center for Marriage and Families at the Institute for
American Values (September 2006), online: <http://center.americanvalues.org/?p=47>.
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conjugal marriage – the norms of permanence and exclusivity – rather than overthrow them.21 So the
formal change wrought by same-sex marriage is in removing the requirement of the comprehensive
union of spouses; there is no longer any union of the body required. But absent the union of the body,
the legal conception of marriage no longer has any inherent link to children and, I will argue, no
rationale for state recognition at all.
This loss of an inherent link to children makes it difficult to understand why the state should
view same-sex marriage – and now by extension, any marriage – differently than it views any other form
of friendship. There are two possible explanations for state recognition of same-sex marriage. One is
simply that same-sex marriage lacks an inherent rationale (ie a rationale that would continue in a world
without conjugal marriage) and state recognition of it relies on a mistaken judgment of its similarity to
marriage. That is, the reason for legally establishing same-sex marriage was simply the judgment that it
would be inegalitarian not to establish it given the existence of traditional marriage in society. On this
view, same-sex marriage lacks the rationale possessed by marriage, and the rationale for
institutionalizing same-sex marriage was largely symbolic: to assert the value of same-sex relationships.
State recognition of same-sex marriage can only be explained as a non-mistake if a voluntaristic
conception of marriage is adopted, and the rationale of state recognition marriage is taken to be the
support of intimate, committed relationships in general and independently of any consideration of
children. On this view, a form of heterosexual marriage and same-sex marriage could share the same
rationale; that of a union of minds together with some unspecified sexual component. But, absent the
dependencies created by raising children, it is not obvious why the state would be interested in
promoting or encouraging this form of friendship or intimacy above any other form. As well, the more
21
That is not to say that no advocates of same-sex marriage seek to overthrow these norms, only that the
proposals for recognition of same-sex unions made to courts and parliaments typically do not seek to change the
structure of marriage beyond the minimum of what is needed to obtain recognition of same-sex unions as
marriages.
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marriage is alienated from child bearing and raising, the less the norms of exclusivity and permanence
serve any real purpose.
To recap, the legal establishment of same-sex marriage marks a shift away from the conjugal
conception of marriage. The reception of same-sex marriage is not a matter of taking an existing
conception of marriage and simply expanding access to it. It is a matter of remaking marriage and in the
process, undermining the rationale for its current structure. If there is no reason for marriage to be a
comprehensive union of a man and a woman, why should we insist on any of the norms of exclusivity
and permanence that are intended to provide the stability for children? And these are the questions
asked, quite sensibly, by polygamists and polyamorists.
Polygamous marriage (at least in the form of polygyny) is actually compatible with the conjugal
conception of marriage in a way that same-sex marriage is not. Polygamous marriage shares the childcentered rationale of conjugal marriage, although (as I argue elsewhere) it institutionalizes serious
injustice (both to women and children) that results from the rejection of the norm of exclusivity.22 The
question posed by the polygamist is, if the law has abandoned the comprehensive union and now views
marriage as a pure social construction, why should the norms of exclusivity be continued? The
polygamist views the criminal prohibition of polygamy (as in Canada) as discriminatory – a restriction
with no rationale that is based purely on animosity towards polygamists.
The same argument is made in a more radical form by polyamorists, who combine the
polygamists’ attack on the norm of exclusivity with an attack on permanence and the same-sex
advocates’ attack on the necessity of a comprehensive union. Little can be said about polyamory in
22
Again, the rejection is only partial insofar as the polygamist considers himself bound to norms that limit the
number of wives and the circumstances under which he may marry another wife.
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general, as it is an open-ended class that includes every permutation of plural intimate relationship.23 A
polyamorist household may include children, it may not. It may be homosexual, heterosexual, or
bisexual. A concept of marriage that could include the polyamorist would be truly elastic, and could
reject every one of the norms of marriage, except for voluntariness.24
23
The definition of polyamory provided on the website of the Canadian Polyamory Association defines it as “the
practice, desire, or acceptance of having more than one intimate relationship at a time with the knowledge and
consent of everyone involved.” http://polyadvocacy.ca/what-is-polyamory
24
A campaign for legal recognition of polyamrous relationships does not exist on the same scale as the campaign
for same-sex marriage, and the amorphous nature of polyamory makes it difficult to provide a polyamorist account
of marriage. But the self-understanding of some Canadian polyamorists is concretely displayed in the facta and
affidavits filed by the Canadian Polyamory Advocacy Association (https://docs.google.com/leaf?id=0BURIT52yhx4MDVkMDU5MDctZDM0Zi00ODQ4LWJkNWEtMWVjNmRjMGE2ZjQ0&hl=en) in the current reference
before the Supreme Court of British Columbia over the constitutionality of the Canadian criminal prohibition of
polygamy.
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III.
WHAT IS THE FOUNDATION FOR THE STATE’S INTEREST IN MARRIAGE?
Any determination of what the state’s attitude to marriage should be – including whether it
should refuse to recognize (or even criminalize) some forms of marriage – depends on an assessment of
what the state’s interest in marriage is. That is, it is a function of what one judges to be the proper
jurisdiction of the state. It is only by first constructing an account of the proper scope and purposes of
the state (and its law and government) that one can think clearly about whether the identification of a
form of marriage – and the proscription of others – can come within the state’s legitimate purposes.
Much law is premised on the commitment that ‘it is the goal of all political action to enable
individuals to pursue valid conceptions of the good and to discourage evil or empty ones.’25
Equivalently, part of the rationale of the political community is that its government ‘should deliberately
and publicly identify, encourage, facilitate and support the truly worthwhile (including moral virtue),
[and] deliberately and publicly identify and, discourage and hinder the harmful and evil’.26
This
governmental obligation can be understood, in part, as a matter of preserving and promoting a cultural
inheritance, or patrimony, of the political community. Part of the cultural inheritance that government
has an obligation to safeguard, promote, and transmit to succeeding generations is the legal, political,
and social institutions (such as the rule of law, functioning government, educational systems, and stable
family units), and social attitudes and commitments (such as civility in public discourse and respect for
25
Joseph Raz, The Morality of Freedom, supra note 4. While I will outline some of the commitments of
perfectionist political theory as they bear on the question of the state’s attitude and response to marriage in
general and polygamy in particular, I will not attempt a comprehensive articulation and defence of perfectionism.
Full exposition and defences are available from a range of legal and political philosophers such as those operating
from within a liberal tradition (Raz, The Morality of Freedom, and Galston, Liberal Purposes, supra note 4) and
those operating within an Aristotelian and Thomistic tradition (such as Finnis, Natural Law, and George, Making
Men Moral, supra note 4).
26
John Finnis, “Is Natural Law Theory Compatible with Limited Government?”, in Robert P. George, ed., Natural
Law, Liberalism, and Morality (New York: Oxford University Press, 1996) 1 at 8 [Finnis, Limited Government].
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the equal dignity of all persons).27 In the same way that government is obligated to steward the political
community’s forests, fresh water, and other resources, it is obligated to identify the morally valuable
aspects of a national culture and its morally valuable institutions and to preserve them from one
generation to the next.28 There would seem to be no reason why this obligation to protect a political
community’s cultural property should not extend to protecting a morally valuable concept and culture
of marriage, particularly if the conception of “morally valuable” here engaged is closely linked with
conceptions of human well-being and harm, long term if not also immediate.
When it comes to making provision for children – for their moral education and to enact policies
intended to promote the family stability that children require in order to thrive – the state has special
responsibility (and corresponding obligations) which it does not have for adults.
Accordingly,
government intervention legitimately aimed at the development of children – aimed at encouraging
family stability and supporting parental efforts to provide moral education to children – will stand on a
different footing from intervention aimed at the moral development of adults. This obligation to protect
and nurture children towards maturation may sometimes create restraints on the wider community,
restraints that would not be justifiable in a community without children. It is thus the conceptual link
between marriage and children that gives the state its interest in marriage.
27
See also on this point Gerard V. Bradley, “Law and the Culture of Marriage” (2004) 18 Notre Dame J.L. Ethics &
Publ. Policy 189 at 189-93 [Bradley, Culture of Marriage].
28
The qualification “morally valuable” is important. There is no obligation to preserve every aspect of a culture or
all of the institutions of a society, just because they are the practices and institutions that are the product of that
society. An evaluation is required and if a political community rightly concludes that an institution – say, apartheid
in South Africa – is not valuable, but rather iniquitous and harmful, it is obliged to end it.
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IV.
WHY SHOULD THE STATE NOT BE NEUTRAL ABOUT WHAT CONSTITUTES A MARRIAGE?
There are many forms of human relationships that the state (through its government and law)
appropriately makes no effort to identify or institutionalize. Enriching and important as friendship is,
for example, the state does not define friendship or its objects or prescribe the number of one’s
friendships or their duration.29 In the ordinary course, governments do not place restrictions on who
one’s friends may be.30 There are no core conditions that must be satisfied in order to claim that one’s
relationship is a friendship. The common law’s attitude towards the marital relationship has, historically,
stood on a different footing. The essential features of marriage needed for legal recognition as marriage
have long been articulated in the common law (with respect to such matters as capacity, numbers of
partners to the marriage) and by statute (with respect to consanguinity, dissolution, and, latterly,
capacity of same-sex partners to marry).31 Dissent is not permitted with respect to the essential
features of a marriage. No one is required to marry, but if one wants one’s relationship to be
recognized within a political community as a marriage (and entitled to legal benefits that are conferred
by the state on married persons), then it must meet specific criteria: it must be solemnized as a
voluntary and exclusive union between two persons (formerly one man and one woman). Why does the
state not stand neutral as to the central features of a marriage, and simply let parties – or their religions
– decide for themselves what the features of a marriage should be (eg for a set term or indefinite term?
dissoluble or indissoluble? between 2 people or 5? same-sex or heterosexual?).
29
Governments do, of course, recognize that friendship is a good and use law to facilitate joint action in the service
of friendship; consider the law with respect to eg., voluntary associations, joint ownership of property, trusts,
guardianship, powers of attorney, and many other private contractual arrangements that extend the ability of
persons to act for the benefit of others. Some legal systems, such as classical Roman law, have supported and
enforced even wholly gratuitous contracts.
30
Of course, in the operation of the criminal justice system (such as setting the terms for parole) governments
typically place considerable restrictions on a person’s associations.
31
In the Canadian context, see Civil Marriage Act, S.C. 2005, c. 33 [Marriage Act]; Halpern v. Toronto (City) (2003),
65 O.R. (3d) 161 (C.A.) [Halpern]; Hyde v. Hyde and Woodmansee, [1867-73] All E.R. Rep. 175 at 177; Hyde and
Corbett v. Corbett (ors Ashley), [1970] 2 All E.R. 33; Iantsis (falsely called Papatheodorou) v. Papatheodorou, [1971]
1 O.R. 245 at 248.
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State neutrality as to what constitutes a marriage would have the beneficial result that the state
would not favour any one conception of marriage (religiously informed or otherwise) over any other.
No one would then have to endure the law recognizing or prioritizing a form of marriage which they find
anathema, or suffer from having their own chosen form of marriage prohibited.32
But such a governmental retreat from marriage would come with a high public cost. If it is the
case that marriage is a significant and morally valuable institution, both in the sense that it is valuable
for the participants themselves and instrumentally good for the political community, then the state has
an interest and a responsibility to preserve the institution so that it can remain a conceivable life choice
for present and future generations.33 The state’s interest in marriage arises because marriage (in what
has been its central form in the western tradition) is the institution in which children are born and then
raised. It is through this aspect – the child-raising aspect – that marriage becomes of interest to the
state. Without this rationale, marriage would simply be one among many types of private relationship
that, while of great significance for those involved, would not warrant any greater attention from the
state than any other type of voluntary association. It is for the well-being of children – upon which the
health and continued existence of the political community depends – that the state historically has
acted so as to protect and promote marriage.34 The “state interest” – but in reality, the children’s
32
Eg Tamara Metz, Untying the Knot: Marriage, the State, and the case for their divorce, (Princeton University
Press 2010), and “The Liberal Case for Disestablishing Marriage”, Contemporary Political Theory (Spring 2007). See
also Kmiec & Saxer, Equality, supra note 28, and Iain T. Benson, “A Civil Argument about Dignity, Beliefs, and
Marriage”, a brief submitted to the Special Legislative Committee of the House of Commons on Bill C-38 (14 June
2005), online: <http://culturalrenewal.ca/downloads/sb_culturalrenewal/BriefBillC38.pdf> (accessed 26 January
2010).
33
This conclusion is evident in the dissenting reasons for judgment of Gonthier J. in Miron, supra note 30 and
echoed in LaForest J’s plurality judgment in Egan, supra note 31 at 536)
34
This is a position articulated in Canadian law by the judgment of LaForest J. in Egan, ibid.:
Suffice it to say that marriage has from time immemorial been firmly grounded in our legal tradition, one
that is itself a reflection of long-standing philosophical and religious traditions. But its ultimate raison
d'être transcends all of these and is firmly anchored in the biological and social realities that heterosexual
couples have the unique ability to procreate, that most children are the product of these relationships, and
that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage
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interest, and rights – in marriage only makes sense if it is understood (as the classical tradition supposes)
as resting on the judgment that children are best cared for by their own mother and father, living
together as a stable family unit.35 Were it not for the connection between marriage and raising children,
and were it not that strong, stable families are rightly judged to be beneficial to children (including the
development of their character and lessening the risk and burdens of poverty), then there would be no
compelling case for state support of marriage. If it is the judgment of the politically organized
community that the best chances for loving nurture and stability for children are within marriages, then
the state has an obligation to act on this judgment by identifying and promoting marriage. To do
otherwise would be to deny the duty of justice owed to the children within the political community. It
would also be contrary to the interest of everyone who stands to be harmed by those children who, as a
consequence of the collapse of a marriage culture, are denied adequate nurture and parental guidance
and grow to become incompetent and unstable adults.
is by nature heterosexual. It would be possible to legally define marriage to include homosexual couples,
but this would not change the biological and social realities that underlie the traditional marriage.
The marital relationship has special needs with which Parliament and the legislatures and indeed custom
and judge-made law have long been concerned. The legal institution of marriage exists both for the
protection of the relationship and for defining the obligations that flow from entering into a legal marriage.
Because of its importance, legal marriage may properly be viewed as fundamental to the stability and wellbeing of the family and, as such, as Gonthier J. argued in Miron v. Trudel, Parliament may quite properly
give special support to the institution of marriage.
35
As expressed by Patrick Lee,
(a) society that strives to ensure that as often as possible the child’s own mother and father commit to
each other and to the rearing of their children – and that will be a society that promotes genuine
marriage, and does not distort its nature by falsely affirming the equivalence of other types of relationship
within it – is a society in which children are most likely to receive love and stability.
Lee, Marriage, Procreation, supra note 27 at 434-35. For argument and research in support of this proposition,
also see the papers published in “Marriage and Child Well-being”, online: (2005) 15:2 The Future of Children
(Princeton – Brookings)
<http://www.princeton.edu/futureofchildren/publications/journals/journal_details/index.xml?journalid=37.
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The stock objection to this argument is that not all marriages produce children, and that not all
children in our society will be raised by both biological parents (whether inside or outside of marriage).
And furthermore, the objection goes, it is hardly inevitable that children who are parented by a single
parent, or parented by both biological parents outside of a marriage, will have less happy and less stable
upbringings than all others who are raised by their biological parents within a marriage. That is to say,
the link between marriage and positive child-raising is, in particular cases, defeasible. Certainly, and
fortunately, the link is defeasible. It is hardly inevitable that children raised outside of marriages, or
children raised by parents other than their birth-parents, will fail to thrive. Neither is it inevitable that
children raised within marriages will become happy and well-adjusted adults. But defeasibility in
particular cases does not invalidate the rationale for state support of marriage, relying, as it does, on the
judgments that (1) in general, children are most likely to thrive when they are raised by their own
parents who are living in a committed and exclusive relationship with each other, (2) marriage is a good
way to structure and strengthen that commitment. It therefore only makes sense that policies that tend
to undermine the norms of marital permanence and exclusivity – as same-sex marriage, polygamous
marriage, and polyamorous unions arguable do – ought to avoided.
V.
CONCLUSION
Until very recently, the predominant conception of marriage in law has been as a cultural
(including religious) institution, the product of moral judgments about what is choiceworthy for persons.
In this sense it is a natural institution.36 It was not understood to have been created by any one religion
36
This understanding of marriage and its relationship to law, government, and the state was articulated in
Gonthier J.’s dissenting judgment in Miron v. Trudel, [1995] 2 S.C.R. 418 at paras. 40-49 [Miron].
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or any act of government.37 The central reality of this conception of marriage is, therefore, not a statute
or a decision of a court, but the more or less public commitment and stable dispositions of married
couples.38 In that sense, its existence depends not on formal recognition by the organs of the political
community but on the continued practices of a people (though undoubtedly the latter can be influenced
by the former).39 And the viability of the practice of marriage within a culture depends on the ability of
the people who would choose to marry (and choose to make the countless subsequent choices needed
to affirm and carry out a life of marriage) to understand, and become persons capable of, the
commitment required by marriage. To the extent that marriage is a natural institution or a basic human
good, government has reason to encourage and facilitate marriage and act to support persons in
fulfilling their commitments of marriage and family.40 If marriage is not a natural institution inherently
linked to the bearing and rearing of children, it is difficult to understand why government should adopt
any particular conception of marriage and enforce it.
It is easy to appreciate the role that law can play in preserving a sound understanding and
practice of marriage within a community. Law has an important educative role in preserving marriage as
a live option for a community, and of deepening the understanding and practice of marriage within a
community.
A political community selects a conception of marriage from among competing
possibilities, and ratifies, regulates, supports, and protects it.
The law is an important tool in
37
This is a widely held proposition, equally at home in Canadian law (Egan v. Canada, [1995] 2 S.C.R. 513 [Egan],
Miron, ibid.) and in scholarly literature on the family. See e.g., “Marriage exists in virtually every known human
society. . . . At least since the beginning of recorded history, in all the flourishing varieties of human cultures
documented by anthropologists, marriage has been a universal human institution. As a virtually universal human
idea, marriage is about the reproduction of children, families and society. . . . Marriage across societies is a publicly
acknowledged and supported sexual union which creates kinship obligations and sharing of resources between
men, women, and the children that their sexual union may produce.” William J. Doherty et al., Why Marriage
Matters: Twenty-One Conclusions from the Social Sciences (New York: Institute for American Values, 2002) at 8.
38
John Finnis, “Marriage: A Basic and Exigent Good”, (2008) 91 The Monist 388 at 388 [Finnis, Marriage].
Much of this paragraph and the next is indebted to Bradley, Culture of Marriage, supra note 13 at 189-94
40
A point also developed by La Forest J. in his plurality judgment in Egan, supra note 31 at 536.
39
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transmitting the reality of marriage from generation to generation. To the extent that the conception of
marriage that is reflected in the law is morally sound, the law serves and supports the well-being of the
people whose law it is. To the extent that the conception of marriage that is reflected in the law is
morally defective, it makes it more difficult for people to understand genuine marriage and to develop
the dispositions and character necessary to participate in it. After all, marriage (in its central case) is an
arduous path. The vows of marriage are lived out under conditions that are unpredictable, everchanging, and often unequal. Family responsibilities often mean submerging (at least temporarily) one’s
own ambitions to attend to another’s (be it spouse or child) sickness, infirmity, or other dependence.
Unexpected financial challenges and the difficulties in uniting disparate families (eg one’s in-laws) are
often sources of significant stress.
Fidelity to one’s spouse, even in the least demanding of
circumstances, is always an achievement. Changed circumstances (such as accident, illness, or the
ordinary (and often unequal) consequences of aging) can call for unexpected and unequal sacrifice.
Coupled with the difficulty of the undertaking is the immense consequence of marital failure – for the
children of the marriage, for the couple, and for the follow-on costs to be born more broadly across a
community. When a political community fails to identify and promote a sound conception of marriage,
and fails to assist persons in developing the aspiration to marry and the character to live the role of
spouse and parent, it is destructive of their well-being.
24