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Quinta, 27 Janeiro 2011 12:40


Marriage understood as the conjugal union of husband and wife really serves the good of children, the good of spouses, and the common good of society. The arguments against this view fail while the arguments for it succeed.

Consider two competing views:

Conjugal View: 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 (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts ?? acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it.

Revisionist View: Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear.

It has sometimes been suggested that the conjugal understanding of marriage is based only on religious beliefs. This is false. Although the world's major religious traditions have historically understood marriage as a union of man and woman that is by nature apt for procreation and childrearing,3 this suggests merely that no one religion invented marriage. Instead, the demands of our common human nature have shaped (however imperfectly) all of our religious traditions to recognize this natural institution. As such, marriage is the type of social practice whose basic contours can be discerned by our common human reason, whatever our religious background. We argue in this Article for legally enshrining the conjugal view of marriage, using arguments that require no appeal to religious authority.

Part I begins by defending the idea ?? which many revisionists implicitly share but most shrink from confronting ?? that the nature of marriage (that is, its essential features, what it fundamentally is) should settle this debate. If a central claim made by revisionists against the conjugal view, that equality requires recognizing loving consensual relationships, were true, it would also refute the revisionist view; being false, it in fact refutes neither view.

Revisionists, moreover, have said what they think marriage is not (for example, inherently opposite?sex), but have only rarely (and vaguely) explained what they think marriage is. Consequently, because it is easier to criticize a received view than to construct a complete alternative, revisionist arguments have had an appealing simplicity. But these arguments are also vulnerable to powerful criticisms that revisionists do not have the resources to answer. This Article, by contrast, makes a positive case, based on three widely held principles, for what makes a marriage.

Part I also shows how the common good of our society crucially depends on legally enshrining the conjugal view of marriage and would be damaged by enshrining the revisionist view ?? thus answering the common question, "How would gay civil marriage affect you or your marriage?" Part I also shows that what revisionists often consider a tension in our view ?? that marriage is possible between an infertile man and woman ?? is easily resolved. Indeed, it is revisionists who cannot explain (against a certain libertarianism) why the state should care enough about some relationships to enact any marriage policy at all, or why, if enacted, it should have certain features which even they do not dispute. Only the conjugal view accounts for both facts. For all these reasons, even those who consider marriage to be merely a socially useful fiction have strong pragmatic reasons for supporting traditional marriage laws. In short, Part I argues that legally enshrining the conjugal view of marriage is both philosophically defensible and good for society, and that enshrining the revisionist view is neither. So Part I provides the core or essence of our argument, what could reasonably be taken as a stand?alone defense of our position.

But many who accept (or at least grant) our core argument may have lingering questions about the justice or consequences of implementing it. Part II considers all of the serious concerns that are not treated earlier: the objections from conservatism (Why not spread traditional norms to the gay community?), from practicality (What about partners' concrete needs?), from fairness (Doesn't the conjugal conception of marriage sacrifice some people's fulfillment for others'?), from naturalness (Isn't it only natural?), and from neutrality (Doesnʹt traditional marriage law impose controversial moral and religious views on everyone?).

As this Article makes clear, the result of this debate matters profoundly for the common good. And it all hinges on one question: What is marriage?


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Actualizado em Quinta, 27 Janeiro 2011 14:26