losing arguments

Fighting Gay Marriage With the ‘Sodomy Is Not Consummation’ Defense


Copy/pasting entire paragraphs of rhetoric is not our preferred way of “doing the blogging.” But Princeton jurisprudence professor and uber-Catholic Robby George, who founded the just-launched anti-abortion and anti-gay marriage org American Principles Project, is so engrossed in red herrings (so much so that he even uses the phrase) in his Wall Street Journal column, we’d be engaged in misconduct if we didn’t share it verbatim, at least in part.

Opponents of racist laws in Loving did not question the idea, deeply embodied in our law and its shaping philosophical tradition, of marriage as a union that takes its distinctive character from being founded, unlike other friendships, on bodily unity of the kind that sometimes generates new life. This unity is why marriage, in our legal tradition, is consummated only by acts that are generative in kind. Such acts unite husband and wife at the most fundamental level and thus legally consummate marriage whether or not they are generative in effect, and even when conception is not sought.

Of course, marital intercourse often does produce babies, and marriage is the form of relationship that is uniquely apt for childrearing (which is why, unlike baptisms and bar mitzvahs, it is a matter of vital public concern). But as a comprehensive sharing of life—an emotional and biological union—marriage has value in itself and not merely as a means to procreation. This explains why our law has historically permitted annulment of marriage for non-consummation, but not for infertility; and why acts of sodomy, even between legally wed spouses, have never been recognized as consummating marriages.

Only this understanding makes sense of all the norms—annulability for non-consummation, the pledge of permanence, monogamy, sexual exclusivity—that shape marriage as we know it and that our law reflects. And only this view can explain why the state should regulate marriage (as opposed to ordinary friendships) at all—to make it more likely that, wherever possible, children are reared in the context of the bond between the parents whose sexual union gave them life.

If marriage is redefined, its connection to organic bodily union—and thus to procreation—will be undermined. It will increasingly be understood as an emotional union for the sake of adult satisfaction that is served by mutually agreeable sexual play. But there is no reason that primarily emotional unions like friendships should be permanent, exclusive, limited to two, or legally regulated at all. Thus, there will remain no principled basis for upholding marital norms like monogamy.

Read the whole thing
, because otherwise you’ll miss out on his mentions of Roe v. Wade and Loving v. Virginia.

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  • Symonds

    He’s citing Vatican religious law about consummation, not US law or precedent.

    Down with activist judges, hurrah for legislation-by-pope? So much for jurisprudence.

  • Dick Mills

    Annulment requires that a fraud must have been perpetrated, and that an innocent victim is requesting the annulment. To suggest that not allowing marriage equality protects same-sex partners from the dreaded scepter of “annulment”, is fraud in and of itself. Parties to same-sex marriages are committing no fraud, as it is well known that both parties to the union lack a cooter, or for lesbian couples, a willy. Hence, no defrauding party, and no innocent party exist.

    And, if the state that allows same-sex marriage has no problem with the legality of procreative-consummation for either same-sex or opposite-marriage, then that suggests that there really is no legal rationale to suggest that it matters.

  • M Shane

    No. 2 · Symonds You’re right! Couldn’t be more Roman Catholic! It’s just the same old Thomistic/Aristotelian crap altough he seems to be trying to take that generality and make it seem by virtue of a few examples like a widespread common law precident..

    That’s what they cal ‘philosophy “at Catholic Universities

  • Tom H

    A large part of his argument rests upon the premise that marriage is about procreation. The logical conclusion of this argument is that before heterosexuals can marry they must be screened for fertility. Infertile couples MUST NOT be allowed to marry.

    That’ll go down well with the public.

  • Elisabeth

    Typical of the ‘compassion’ shown by Christians and other religious believers. Under their definition, men and women with birth-defects (defects that their perfect omnipotent god allowed to occur), which prevent them from physically having sex are denied the comfort and bond of marriage. Or how about the godly Christian soldier who loses his genitals to a IED in Iraq or Afghanistan, I guess no marriage for him either.

  • Gerard Priori

    Fucking Catholic idiocy at it again. I was raised Catholic and left that hideous institution the first opportunity I got. Catholic theological arguments and so-called legal definitions are irrelevant in my life and my equality is not up to Vatican vote. Isn’t it bad enough that Christianity be false? Must it be vile, too?

  • TANK

    Hey, strumpet, why aren’t you defending christianity in this instance? Ya fuckin’ bastard!

  • TANK

    Robert George got a lot of his ideas from another religious pariah John Finnis. Finnis teaches at notre dame in the philosophy department (or at least did) with a lot of the other academic bigots.

  • Whup-ass Master

    Fine. Then let’s pass laws that render all childless marriages meaningless and void.


  • Bebe

    So if marriage should be allowed only for procreating couples, then it should be denied for people who are: gay, naturally infertile, females post-menopause, people who are not regular participants in vaginal intercourse, any male or female who has been sterilized, people who not want children, people who use birth control or condoms, all older couples? What if a heterosexual couple has genetic testing and it is revealed that any children that have will have major problems, will they will be denied marriage? What about heterosexual childless marriages, should the partners have a time limit, say 5 years, to produce a child or the marriage will be dissolved? Or will heterosexuals have to perform sexual intercourse before a panel of judges to prove that they have consummated the marriage?

    I’ll tell you right now, I’m a straight female but I prefer bjs and hardly ever do intercourse (like once every 3 years!). I’m not going to have someone tell me or any of my gay friends and relatives what kind of sex to have in a relationship or a marriage. Sex is between the consenting adult participants, period. This weirdo bible-thumper just doesn’t get it.

    Speaking of bible-thumpers, what about Adam and Eve and Cain and Abel? So it was okay for Eve to have sex with her sons, and/or her sons and Adam to have sex with any sisters/daughters born? As long as it’s procreation, right?!!

  • M Shane

    No. 5 · Tom H Seriously, If the gay politicos were smart they would attack the notion that baren couples can be married. The fact is , as one of Foucalts hypoythesis goes, that marriage has to go with the government controling an d encouraging procreation.: i.e. bodies for consumption and production.

    If gays can’t get married, as you say why should infertile couples. They should just get Civil Unions.

  • Bebe

    If gays can’t get married because it’s against religion, then how is it that heterosexual atheists can get married?!

  • M Shane

    No. 13 · Bebe It’s not a matter of being a strict rule, but of the politicscoming from a religious source.

  • Wry Bred

    “But as a comprehensive sharing of life — an emotional and biological union — marriage has value in itself and not merely as a means to procreation.”

    Doesn’t he rather shoot the rest of his argument to hell with that one statement? All the hair-splitting about the exact, true nature of “biological union” suddenly becomes irrelevant.

  • schlukitz


    I’ll second that!

  • Distingué Traces

    It’s such blithely deliberate sophistry that it brings to mind Oscar Wilde.

  • terrwill

    I wish, how I wish that one of the megarich gay peoples out there would get fed up enough with the hate that spews out of mouths like this scumbag Robby George and hire a PI to investigate how many little boys or men they have diddled, or mistresses everyone of these scumbags they have on the side. Then publicize their filthy laundry for all to see. These so called “moral beings” are sub-human beings. Can someone please inform me why these scumbags continue to spew their hate our way. I don’t seem to recall reading of how there has been a complete meltdown of the traditional marriage structure in any of the states or countries where gay marriage is now legal. To take this Asshats logic to the next step all heterosexual marriages not producing children need to be immediatley dissolved. Including those who chose to not have children or those who can not produce children for medical reasons.

  • Emily

    Is it just me, or is a lot of what this guy is saying (especially about sexual connection reinforcing the bonds of marriage) really just an argument FOR same-sex marriage?

  • Joe Mustich, Justice of the Peace

    To the marriage foes and sexually phobic, please find something else to do with your time, because life’s too short. Find love.

    In America, marriage is firstly a civil issue, as marriage licenses are issued by and recorded in town halls not church halls.

    And in America we have freedom of religion and freedom from religion too.

    Kudos to New England and Iowa for supporting (civil) marriage.
    And to the Episcopal Church.

    Joe Mustich, JP, Washington, Connecticut, USA

  • FlexSF

    We’re going to ram proposition 8 straight up the asses of the religious zealots who are responsible for it’s passage. They sense it coming too!

    Watch out for Perry vs. Schwarzenegger!

  • ThinkRealHard

    @FlexSF: It’s not just the “zealots,” ALL religion makes homosexuality Wrong. That’s the enemy.

    We’ve been branded “wrong” for 2,000 years. Enough is enough. We must extinguish those beliefs or religion itself or we will never have equality.

  • M Shane

    No. 9 · TANK Notre Dame Philosophy means nada to me. It’s not even Philosophy. I studied philosophy with some of the formost philosophers in the Anglo-American tradition, and like it a lot.
    When my older brother brought home that absurd trash, I was just dumfounded. It has nothing to do with thinking, just Catholic (Thomistic mainly) policy.

    This (above) is just too much Bullshit: Marriages are ok if they are generative”in kind” whether or not they are generative in effect, and even when conception is not sought.. IE as long as you are doing the right thing in the right way to the right sex even if you don’t want babies:(birth control is ok now apparently.) So much verbiage.

    What a shitload of gibberish just to say that you are bigoted (for no reason) against all but a certain kind of sex. It used to be that there had to be a reason for having sex anytime-that it be generative”in effect”
    So he is contradicting himself. I thinlk that the reason for that is that tehety were losing parishoners in the states because they wanted to use birth control.

  • schlukitz


    And the odds are pretty good that a PI would get some goods on this fucking hypocrite.

    Have you noticed that all the ones who scream the loudest against gays and civil-rights, are the one like Craig, Haggard, Sanford and Ensign, to name but a few of the asshats that are screwing up in their own private lives, big time?

    They take these self-righteous stands to divert the attention of people away from their own non-virtuous lives and cover-up their own transgressions and shaky marriages that are heading for the rocks.

    You know the old Shakespearean quote.

  • Kim

    Leviticus 18:22, 20: 13
    homosexuality is condemned as a prime example of sin, a sexual perversion. Homosexuality is an illicit lust forbidden by God. NOw… if you have no regard for GOd’s law (not “man’s” law”), and choose to live a homosexual lifestyle, clearly it will not affect your spirit. Homosexuality is a spirit which is not of God. No different than the spirit of anything else that will make someone want to do was is against God’s law-

    I pray for these who are led by this spirit.. that they will be delivered and flee that lifestyle because they (their souls) CAN be saved from eternal damnation only if they TRULY believe in their heart that Christ was sent by God and died to save the world from their sins- homosexuality being one of them.

    And when one TRULY believes, they will resist living in sin.

  • schlukitz

    @ 25 Kim: And I see no reason to resist telling you what a whacked out kook I BELIEVE you are.

    “Holy” books that are purported to be the actual word of God.







    Immaculate conceptions.

    People rising from the dead.

    The parting of seas.

    The infallibility of the Pope.

    Etc., etc., etc.

    All, without exception, violations of and in direct contradiction with the immutable laws of physics.

    The list of totally improbable and unprovable bs that religions are based upon, grows longer and longer with each passing year.

    But what really blows me away, is the dumb fucks like you who buy this crapola, hook, line and sinker and use it to promote your special brand of homophobia, bigotry, hatred and discrimination while you rape us of our human dignity and our civil rights as American citizens and taxpayers.

    You god freaks really ought to be thoroughly ashamed of yourselves with your smug, self-righteous, “We’re the only ones who will go to heaven while the rest of you sinners go directly to hell” rhetoric.

    Won’t you be surprised as all get-out if it turns out that god does not approve of you in the very same manner that you disapprove of LGBT people and casts you out of his sight, just like you have cast us out of your sight.

    It would be worth going to hell just to see the look of shock on your contemptible face.

  • Shucky

    I wouldn’t object to ‘gay marriage’ provided that the law doesn’t use the word marriage, and that no union, gay or straight, can be dissolved based on one partner refusing to engage in oral or anal intercourse. I think that would be a fair compromise that even most conservatives could agree with.

  • Joyce Wildermuth

    I think all homosexuals should have to present the marital sheet to the one joining them in marriage and show that fecal matter has been deposited on the bed linens as per the dictates of both the hebrew and arabic laws regarding consummation of marriage. There should be an analysis of that fecal matter to determine that both parties have gotten up there and gotten some. As to lesbians as myself, I guess you better both be squirters like me and my lover. I love when she gives me a spray in my face and she love it that I can do the same for her. That is true love and marriage.

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