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Saturday, January 15, 2011

What is Marriage? A Credible Legal Analysis that Supports Tradition and the Mormon Position

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 SSRN: http://ssrn.com/abstract=1722155

The cite is above. See the abstract below:
In the article, we argue that as a moral reality, 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 fulfilled by bearing and rearing children together, and renewed by acts that constitute the behavioral part of the process of reproduction. We further argue that there are decisive principled as well as prudential reasons for the state to enshrine this understanding of marriage in its positive law, and to resist the call to recognize as marriages the sexual unions of same-sex partners.
Besides making this positive argument for our position and raising several objections to the view that same-sex unions should be recognized, we address what we consider the strongest philosophical objections to our view of the nature of marriage, as well as more pragmatic concerns about the point or consequences of implementing it as a policy.
The article isn't listed yet on the Harvard Journal of Law and Public Policy web site but soon will be. For now, you can find the article on SSRN and download the PDF. Released December 11, it doesn't seem to have made much of a stir yet in the mainstream press. At least one writer, Matthew J. Frank in Now We're Talking (About the Marriage Issue) in the National Review says it has had a profound impact in academic circles. He also states:
And here’s the really good news: Girgis, George, and Anderson appear to have started an actual debate on this question, just when many on the other side of the gay marriage controversy want to shut down debate with accusations of “hate speech,” as I noted in a recent Washington Post article. Yoshino and, especially, Koppelman, are to be commended for their civility, and for engaging in a shared attempt to come to grips, rationally, with one of the most momentous moral and legal questions facing our country today. Both sides cannot be right–but neither side needs to be tarred with the epithet “bigots!” while the debate continues.
For Mormons, the legal support is welcome but not crucial. The Family: A Proclamation to the World settles the matter. 

2 comments:

  1. From my quick read, the professors are confusing marriage with the panoply of legal rights and benefits accorded by the government to those to whom it has granted a marital license.

    Their first point - marriage is different from a contract - asserts that marriage creates moral privileges and obligations. Is it the business of government to create moral obligations, can it even pretend to do so? Nothing in the legal process of marriage can cause the parties to feel a moral obligation to one another as is painfully obvious in our rates of adultery and divorce.

    Second, they try to create a rationale under which government has some interest in restricting the marital contract to specific types of unions.
    - They claim that "revisionists" would have to determine whether the desire to enter into a specific relationship with another person or persons is "natural or unchanging". Obviously current legal marriages are far from unchanging and do we really want government to determine what is "natural" behavior and what is not?
    - They want to assess the "economic effects" of recognizing polyamorous unions (not that there's much demand for this in the public). Yes we should probably examine whether the considerable tax and economic benefits accorded to those who are married are justified, regardless of whether the union is between a man and a woman, 2 persons of the same-sex, a polyamorous or polygamous union.

    They are correct in asserting that there is no legal right to marry. But that is hardly the point. If the government simply handed out licenses and required fully executed contracts to be on file in the county clerk's office but provided no legal, tax or other benefits to individuals who had those contracts then there would be no issue. But that's not the case and the good professors know it.

    I would agree absolutely and without equivocation that any church or religious group has the right to conduct marriage rites as they see fit. If they don't believe in same-sex marriage or polyamory or polygamy, they are under no obligation to conduct such rites or to recognize them within their congregations. Perhaps the confusion is in the words we use. If we reserved the word "marriage" for a religious rite and changed our legal terminology to "civil union" for example, then the matter might be a great deal clearer.

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  2. The Proclamation may not settle the matter as conclusively as commonly believed (http://bradcarmack.blogspot.com/2011/01/chapter-5-moral-case-for-lds-same-sex.html).

    For a critique of the article, see (http://bradcarmack.blogspot.com/2011/05/and-they-shall-be-one-flesh-why-robert.html) and (http://bradcarmack.blogspot.com/2011/04/what-is-marriage-my-response-to-robbie.html).

    It's nice to see a blog from another BYU MPA, Krista! I just received my diploma over the weekend.

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