Reviewed by Ádám Rixer
This internationally well received book by Sherif Girgis, Ryan T. Anderson and Robert P. George is not just another book defending the “traditional” model of marriage. It makes for exciting reading, primarily because it played a role in an actual legal procedure. Prior to November 4, 2008, the Constitution of the State of California permitted same sex marriages. Proposition 8, however, put an end to that. This book closely follows the amicus brief submitted to the Supreme Court in response to the 2012 petitions claiming that Proposition 8 and the federal Defense of Marriage Act (DOMA) were unconstitutional.
The book’s key arguments
When considering a work like this, one of the most important questions to consider is the strength and soundness of its arguments, and whether they satisfy the expectation placed on every lawyer and serious advocate to take into account the opponent’s potential counter-arguments. The value of the book will be determined, therefore, primarily by whether its assertions about marriage as a unique relationship between one man and woman can be sustained and supported scientifically, especially in light of the arguments and counter-arguments advanced by those who support the recognition of same sex marriage.
Although the authors acknowledge their Catholic background, the “customary” array of Christian arguments has been intentionally left out of their book. The book is not primarily written against something, to prevent certain types of people from marrying, but seeks rather to shed light on the nature of the institution of marriage. According to the authors, two fundamentally different interpretations of marriage exist, and these can be distinguished not only at the level of treatment in law, but also in art, religion, philosophy, and social practices.
One interpretation is the conjugal view (the traditional conception of marriage); the other is the revisionist view. The former presupposes a physical, spiritual and emotional union between a man and a woman, encompassing all essential aspects of their existence, through an exclusive life-long commitment. According to the authors, this relationship touches on all aspects of life and is a value in itself; however, it is primarily the interests and well-being of the children that makes marriage an institution to be acknowledged, supported and comprehensively regulated by the state. The authors, who openly support the conjugal view, believe that marriage is the only type of relationship which requires, on legal/normative grounds, a complete and continuous commitment, extending beyond momentary, subjective intentions. According to the authors, a relationship can be considered a marriage only when it meets the following conditions: a comprehensive union, established intentionally by two people not of the same sex, characterized by physical intimacy ordered toward procreation. A recurring argument of the book is that only marital norms (exclusivity, trust, and continuity) can provide the stability and harmony necessary for raising children.
According to representatives of the second interpretation, married partners primarily seek emotional fulfillment. Therefore marriages last only as long as they are emotionally satisfying. In this model, fidelity is exclusively the result of an isolated individual decision. Sexual commitment lasts only as long as the “romantic” connection. The revisionist view, therefore, is held not only by those who support same sex marriage, but also by those who believe marriage should be concluded between a man and a woman. The increasing number of divorces by mutual consent also helps to elevate this “revolutionary” viewpoint into a peculiar, indirect principle of law. The authors argue that this situation makes defense of traditional marriage necessary. The purpose of the authors’ legal petition and this book is to demonstrate that the arguments on behalf of the conjugal view are rational.
The book’s strengths and weaknesses
A key weakness with the book is that the authors do not take into account reliable scientific studies, even though their arguments rely primarily on studies in the social sciences and the humanities. The volume discusses only a few studies in detail, when more thorough argumentation and perhaps more data would have been called for. American academic literature could have provided ample resources, since sociological studies have demonstrated clearly over the past twenty to thirty years that an emotional connection is not enough to sustain a marriage, that more bonds are needed to sustain the relationship and the family in the event the emotional connection is weakened. Another survey conducted in the USA over a period of thirteen years showed that the conscious intention to have children and an equal commitment by the partners are significant “indicators” of a marriage’s longevity. Recent research from the USA also indicates that the stability of a marriage is not directly correlated with the economic position and social status of a family. Lower income families (and non-whites, as evidenced by the surveys) consider non-economic factors, such as a respect for traditional values, to be more important. Reference to this sort of research would have made the book more solid.
However, the basic claims and conclusions of the book are correct and can be scientifically substantiated. The book considers various possibilities. For example, with respect to children raised by same sex couples, the book refers to clear sociological research indicating that children raised in families with two parents of different sex do better on various indicators (health, social skills, criminal activity, etc.) than children raised by single parents or same sex couples, and indeed even do better than children living with their biological parents after a divorce. Although these things are true, the reader is the left with the sense that something serious is missing. One weakness with this line of argument is that the question does not simply concern the difference between heterosexual and same sex models of marriage, but also concerns what’s better for the child: to be raised in a family with same sex parents or perhaps in an orphanage? Regardless of the opinion on these questions held by the author of these lines, to leave questions like these unaddressed significantly weakens the argumentative and persuasive power of the book.
The authors thoroughly develop their arguments about the need for extensive state regulation of marriage. They correctly maintain that the more intimate a relationship is (deep friendship, love, etc.) the weaker its claim for assistance from the state. This is not the case with marriage, however, because the structured public goods originating from the institution of marriage call for recognition and regulation by the state. As the authors put it, marriage cannot be privatized. Unlike, for example, baptism, marriage cannot be exempted from state regulation.
All societies regulate the relationship between man and woman, because it is the basis of reproduction, and it is indispensable to social regeneration and the process by which children become productive members of society. The authors call this the essence of civilization, because civilization rests on strong marriages and the rules regulating marriage. Nor do the authors try to hide their claim that a well-functioning society depends upon a strong culture of marriage, which in turn depends partly on social expectations that heterosexual persons will marry and stay together.
The authors also give detailed consideration to the legal dimension of the social function of marriage. They take as their starting point the claim that the content of the law communicates a message to the members of society about what constitutes marriage. This message exerts significant influence on our opinions and views about marriage. One of the primary reasons for regulating marriage is to ensure there are legal consequences for individual behavior related to having and raising and children, and to encourage couples to act in ways that are conducive to their material, emotional, physical and social well-being. The book maintains that the institution of marriage has a public function which both establishes rights and places expectations on the parents. Only the state can ensure in a consistent way that these values are respected by third parties. Religious recognition, mutual agreements, or contracts are not by themselves suitable for this, given modern conditions. These values are embodied primarily through rights, among the most important of which, according to the authors, is the right of parents to their children and vice versa.
The viability of natural law reasoning
Were the authors right to exclude Biblical references from their arguments? Modern and postmodern theories of society, conceived in an age without central organizing principles, tend to ignore or attend only superficially to the philosophical-ethical nature of human beings. Nor do they consider the way that correct principles of social cohesion depend on integrative social forces. As a result, they fail to consider the theoretical foundations of a well-functioning social order. Rejection of the exclusive validity of divine natural law played a decisive role in the emergence of modern law and legal studies. The transcendent (moral) justification of man-made positive law was secularized in the form of rational natural law. Although the need to justify positive law with transcendent, so called meta-legal (moral) principles continues to exist, the problem of justification is now located within the historical dimensions of the non-created world. A decisive question, therefore, is whether legal positivism, and a kind of natural law that is relative in several respects, can establish its own normative character as law. Absent a reference to specific moral justifications, it remains unclear why people “created legal systems and why they endow legal systems with their typical characteristics” (Bódig 2004, 219). One central issue in contemporary debates concerns whether and to what extent theology and, more broadly, religious studies can play a role in academic debate. As I indicated previously, the authors exclude religiously based assertions from their argument. The book mentions Biblical persons or verses on only three occasions, in side comments.
The authors state that marriage is not only a matter of law and culture, but also a social construct whose essence we recognize but cannot change. If we accept this claim as true, we cannot help but ask ourselves whether the real and primary differentia specifica of the institution of marriage is not the fact that God created it with a specific content and purpose.
In order for modern scholarship, and in particular legal scholarship, to take theology seriously, one must seriously consider the possibility that a comprehensive discipline exists (philosophy), which is capable of conceiving the moral, emotional, and rational aspects of the human being as an integrated whole. Theology as a discipline cannot exist without a foundation – in this case philosophy – which brings the discipline of theology into contact with the way other disciplines treat today’s urgent questions, for example, the crisis with the institution of marriage. In this way theology does not simply transmit tradition, but it gives radical expression to its own sources of knowledge.
The newest expositions of natural law, which in certain cases have both Christian roots and content, are new only in the sense that they do not so much trace the content of positive law back to the legislators or to principles crystallized in “legal history,” as they consider the general principles and expectations inherent to a system of belief (which in our culture is the Bible) as the direct justification and necessary basis of every rule. Of course, this direct relationship can also be partial; that is, it may appear in conjunction with other considerations and proof systems. In this sense, natural law or Christian natural law can also be partial. This means, in practical terms, that references to the Bible or to God would appear as a “parallel opinion” in decisions written by a judge or constitutional court.
I believe the arguments advanced by the authors would not have lost any of their force had they also referred to the “separateness” of marriage (Eph. 5:31), its external “sanctity” (Heb. 13:4), the gift of sexuality as a component of marriage (1 Cor. 7:3-5), and the threefold character of marriage even without a child (Eccles. 4:12). Indeed, their arguments would have been stronger, because their assertions – in the authors’ opinion as well as my own – would have been reinforced by arguments from cultural anthropology, sociology, history, and psychology. Sociological arguments, at least by themselves and taken as the last word, are insufficient in this matter.
Hungarian dimensions to the issues discussed in the book
If the authors had illustrated their positions with examples, that is, by analyzing specific laws and decisions, (e.g., which states regulate marriage according to the conjugal view, and which states follow the revisionist view), their claims would have been better supported. Without concrete examples to consider, it is difficult to know the extent to which a given state protects a concept of the family closely linked with traditional, Christian values. This dilemma is illustrated in the case of Hungary as well. The new constitution, Hungary’s Basic Law, which took effect in 2012, and the new Civil Code, which took effect in 2014, as well as other statutory regulations seek to reinforce the institution of marriage and the family as centered on responsibility. Nevertheless, the decision of married women to have an abortion still falls under extremely liberal regulations, which makes it difficult for an outsider to classify the Hungarian model.
One characteristic feature of the current Hungarian legal system is a new systemic understanding of responsibility. Simply put, responsibility is a key component of the conservative and neoconservative paradigm; indeed, it is a “revolution of responsibility” in contrast to other concepts which consider freedom an absolute value. According to this new conception, the citizen is not primarily a holder of rights and exemptions, nor is he primarily a consumer. Rather, he is understood as a responsible citizen, whose different responsibilities have been defined more thoroughly and precisely than before, together with a description of the relevant penalties. For example, Section 9 (3) g) of Act CCXI of 2011 on the protection of families stipulates, with a view to increasing the responsibilities of parents, that the parent is obliged to ensure the supervision of his child when the child visits public places and entertainment facilities at night, as set forth in a separate statutory regulation. Further, pursuant to sub-section (4), “the parent is obliged to spend the subsidy received in relation to his child for the care and education of the child.”
At the same time, however, the effective regulations stipulate that a pregnancy may be terminated up to the twelfth week if the pregnant woman is in a serious crisis. “A serious crisis,” however, is an undefined legal concept. According to the interpretive provisions of the law, a serious crisis is a situation that “causes physical or mental stress, or social adversity.” Although Article II of Hungary’s Basic Law stipulates that “the life of the fetus is subject to protection from inception,” on the basis of current regulations and judicial practice (including the relevant decisions of the Constitutional Court), the fetus’s right to life in Hungary is only a state-defined objective, not a subjective right.
One of the book’s greatest values becomes apparent upon reviewing the literature on marriage available in Hungarian. That literature includes a number of popular works by Christian authors as well as academic literature written for experts. Surprisingly, however, one can find no political and legal literature discussing current regulations and their detailed aspects at a level that goes beyond mere commentary. Missing is a detailed discussion of the relevant political assumptions, historical antecedents, and philosophical basis of the current regulations.
In terms of its impact on Hungarian politics and law, the greatest virtue of What is Marriage? may be the way it highlights the fact that regulatory processes pertaining to issues of central importance cannot stop at the level of obligatory but politically limited impact studies. Rather one can create and strengthen avenues through which academics can contribute to debating basic issues.
Bódig Mátyás. 2004. Jogelmélet és gyakorlati filozófia. Miskolc: Bíbor Kiadó.
About the author
Ádám Rixer is associate professor and head of the Administrative Law Department of Károli Gáspár University of the Reformed Church in Hungary. His areas of research are administrative law, state and civil society, state church law.