One Flesh

Beware the “One-Flesh Union”:
Conservatives Coalesce in Opposition to Same-Sex Marriage
Odini Nwakuche*
William B. Turner**
©2008
The phrase “one-flesh union” serves multiple purposes in this article. First, it is a direct
quotation. It appears in the biblical book of Genesis, 2:24,1 and Christian conservatives use it in
various forms to justify their opposition to legal recognition of same-sex marriages. But “one-
flesh union” also serves as a metaphor for two distinct but closely related phenomena. First,
despite at least thirty years of feminist critique and activism, Christian conservatives continue to
advocate a vigorously patriarchal version of marriage according to which men take charge and
women silently obey. The “one flesh” of this union is the male flesh absorbing, in legal and
political metaphor, the female flesh. This fact should perhaps not surprise us terribly. But
anyone who cares about the rights and status of women would do well to keep a weather eye on
specific patriarchal definitions of marriage, no matter how tired and mundane they may seem by
dint of familiarity. Also, this is further proof, if such proof were needed, of the importance of
alliances between feminist and LGBT legal and political activists.
What is more noteworthy for its novelty is the second, closely related phenomenon:
opposition to legal recognition of same-sex marriages appears to have produced an increasing
intellectual, legal, and political convergence among different types of Christian conservatives
who, in the past, were profoundly suspicious of one another. It almost seems as if Christian
*
J.D. 2007, Emory University. Odinin@hotmail.com
**
J.D. 2006, Wisconsin; Ph.D., U.S. History, 1996, Vanderbilt. drturner@mindspring.com, 608.335.1665
1
See, e.g., JAMES DOBSON, MARRIAGE UNDER FIRE: WHY WE MUST WIN THIS WAR 7 (2004). “Therefore shall a man
leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh (KJV).” Note that the
quotation in question does not appear in all versions of the Bible. In this passage, Dobson cites the King James
Version, but later in his book he cites the New American Standard Bible (e.g., id. at 18, 55).
Nwakuche and Turner, One-Flesh Union, page 2
conservatives have decided to walk the talk of their belief in marriage as the originary institution
in western culture by putting aside their historic divisions – making of themselves a sort of
political one-flesh union – in defense of their retrograde definition of marriage as exclusively
heterosexual.
This article begins by providing a brief overview of divergences among Christians in the
United States and efforts by Christian conservative activists to overcome those divergences in
the service of conservative political and legal goals. It is psychologically tempting and
linguistically simple for feminists and LGBT and queer activists to lump all Christian
conservatives, or even all conservatives, together2; however, to do so is necessarily to ignore the
overwhelming empirical evidence of important variations, including conflict, among
conservatives, especially among Christian conservatives. Not everyone will find the exercise of
taxonomizing conservatives inherently fascinating (think train wreck), but the fact is that
convergences and divergences among Christian conservatives have political and legal
consequences that feminists and queers ignore at our peril.3

2
See, e.g., Nancy D. Polikoff, For the Sake of All Children: Opponents and Supporters of Same-Sex Marriage Both
Miss the Mark, 8 N.Y. CITY L. REV. 573, 573-74, 574 n. 1 (2005): “The rhetoric of Republican political campaigns
and evangelical churches can rely on hate, fear, hell, fire, and brimstone.” Polikoff’s sole source to support this
assertion is “http://www.godhatesfags.com/fags/fag.html, the website of Reverend Fred Phelps.” It is simply
empirically inaccurate, and politically dangerous, to lump all Republicans and evangelical Christians together with
Fred Phelps. I use this example precisely because Polikoff is an established scholar with a track record of important,
thoughtful publications on the rights of lesbian parents and same-sex couples stretching over 30 years. See Nan D.
Hunter and Nancy D. Polikoff, Custody Rights of Lesbian Mothers: Legal Theory and Litigation Strategy, 25 BUFF.
L. REV. 691 (1975-1976). Polikoff goes on to posit a sharp distinction according to which state governments arguing
in court must rely on “reason.” Polikoff, For the Sake of All Children, supra at 574. While this distinction is
certainly valid at one level, the point of this article is to remind us not to take too much comfort from it because an
important element of the Christian right political strategy is to gain increased control over courts, and the political
strategies of most Christian right activists are much, much more sophisticated than Polikoff here acknowledges. See
infra, sec. II. See also, Cynthia Burack and Jyl J. Josephson, Origin Stories: Same-Sex Sexuality and Christian
Right Politics, 6 CULTURE AND RELIGION 369 (2005). The proof is in the pudding: the Hawaii Supreme Court found
unreasonable the state’s justification for refusing to recognize same-sex marriages. Baehr v. Lewin, 74 Haw. 530,
852 P.2d 44 (Haw. 1993) (remanding for trial of state’s justification for refusing to recognize same-sex marriages).
The Christian right responded by amending the Hawaii constitution to prohibit recognition of same-sex marriages.
Baehr v. Miike, 92 Haw. 634, 994 P.2d 566 (Haw. 1999) (taking judicial notice of state constitutional amendment
allowing state legislature to prohibit recognition of same-sex marriages). So much for the reasoning power of
courts. See infra, note 114ff and accompanying text for discussion of Polikoff’s position on same-sex marriage.
3
Colorado’s Amendment 2 is an excellent example. Granted, the Supreme Court struck that Amendment down,
Romer v. Evans, 517 U.S. 620 (1996), but national LGBT civil rights groups have so far refrained from directly
Further, it is a fact of politics and culture in the United States that Christian conservatives
are not going away. Some of the first English settlers in British North America, the Puritans,
were Christian conservatives, and their belief system continues in various ways to inform
American culture for good or ill.4 The other important observation to make is that, although this
paper focuses on convergences among different types of Christian conservatives, centrifugal as
well as centripetal forces exist among Christians with respect to major political issues.5 Writing
off “evangelicals” or “fundamentalists” as politically and legally hopeless is self-defeating.
Having identified the major relevant subsets of Christian conservatives, this article will
proceed to a second section that explores the terminological and conceptual convergence among
them in their opposition to legal recognition of same-sex marriage. Prominent political and legal
activists and theorists from both Protestant and Catholic traditions have seized on the phrase,
“one-flesh union,” from Genesis as a useful shorthand to describe the model of marriage that
challenging any of the state constitutional amendments prohibiting recognition of same-sex marriages, presumably
because they expect such challenges would fail in the current political/legal climate. On the Christian right as the
impetus behind Amendment 2, see, Diane Carman, Rehab for Springs’ Anti-Gay Image is a Slow Dance, DENVER
POST, April 25, 2007; New Hub for Family Values Movement; Ministries: Colorado Springs is Home to 40
Evangelical Groups that Have Brought Thousands of Jobs and Millions in Tax Dollars. But Not Everyone is Happy
about Their Clout, L.A. TIMES, Dec. 19, 1992 at B5; Bettina Boxall, Oregon Measure Condemning Homosexuals is
Trailing; Initiatives: Milder Attempt to Ban Gay-Rights Legislation in Colorado is Ahead. Passage of Either Could
Prompt Similar Efforts Elsewhere, L.A. TIMES, Nov. 4, 1992 at A1 ("’We could be used as a pattern for other states,’
said Will Perkins, chairman of Colorado for Family Values, the group that put the anti-gay measure on Colorado's
ballot.”); LISA KEEN AND SUZANNE GOLDBERG, STRANGERS TO THE LAW: GAY PEOPLE ON TRIAL 9 (1998) (Colorado for
Family Values, which originated Amendment 2, had representatives from major Christian anti-gay groups such as
the Traditional Values Coalition, Focus on the Family, Eagle Forum, and Concerned Women for America on its
board); SARA DIAMOND, NOT BY POLITICS ALONE: THE ENDURING INFLUENCE OF THE CHRISTIAN RIGHT 161-63 (1998). See
also, DIDI HERMAN, THE ANTIGAY AGENDA: ORTHODOX VISION AND THE CHRISTIAN RIGHT, passim (1997) (research includes
interviews with members of Colorado for Family Values and Lon Mabon, originator of anti-gay initiatives in
Oregon).
4
See JOSEPH A. CONFORTI, SAINTS AND SINNERS: NEW ENGLAND IN BRITISH NORTH AMERICA (2006); PAUL K. CONKIN,
PURITANS AND PRAGMATISTS: EIGHT EMINENT AMERICAN THINKERS (1968). See esp. Mark A. Peterson, Civil Unions in the
City on a Hill: The Real Legacy of ‘Boston Judges’,” 4 COMMON-PLACE (2004), available at http://www.common-
place.org/vol-04/no-03/talk/ (last visited May 8, 2007) (noting that Puritans strictly separated religious from political
authority and treated marriage as solely the creature of the state).
5
See, e.g., Sarah Wheaton, 2 G.O.P. Contenders Duel over Religion, NY Times, Aug. 6, 2007 (spat erupting just
before Iowa straw polls after supporter of Mike Huckabee questioned Sam Brownback’s intelligence for converting
to Catholicism); Neela Banerjee, New Coalition of Christians Seeks Changes at Borders, NY TIMES, May 8, 2007
(describing Christians who support both increased enforcement of border controls and some procedure for granting
citizenship to immigrants who are already here); Laurie Goodstein, Evangelical’s Focus on Climate Draws Fire of
Christian Right, NY TIMES, March 3, 2007 (Christian conservative leaders criticizing vice president for gov’t. affairs
at Nat’l. Assoc. of Evangelicals for focusing on climate change rather than “abortion and homosexuality”).
they advocate. The more careful authors in this vein describe male and female roles in marriage
as equal in their complementarity, but “complementarity” still means systematic exclusion of
women from leadership positions.
A note on conceptualization and method is in order. This article is in many respects not a
traditional piece of legal scholarship in that it ranges widely over information about religious and
political movements as well as court cases and constitutional arguments. As legal scholars, we
identify with the Law and Society and New Legal Realism schools because we see
overwhelming empirical evidence for constant interaction between the law and the larger society.
Perhaps areas of the law exist in which interactions with the larger society are minimal, but such
is clearly not the case for the law as it applies to issues of sexuality and gender. A constant
feedback loop exists in our culture, perhaps in every culture, between definitions of acceptable
gender and sexual expression, on one hand, and citizenship and political participation on the
other. More, LGBT identities are inherently and irreducibly political in the deepest sense. The
very categories themselves emerged in the late nineteenth century only from a noxious stew of
anxiety about gender and class hierarchies in western Europe and the United States that enabled
sexologists and psychiatrists to wield really rather bizarre powers to taxonomize ordinary human
beings according to sexual practice.
Christian conservatives are often quite explicit about such connections. Representatives
of the Christian conservative organization Focus on the Family have taken to asserting that
“marriage precedes and exceeds the church and the state.”6 If this is true, and if one defines
marriage in terms of gender hierarchy, then it is a reasonable, perhaps necessary, inference that
women get to participate in governance only through their husbands, unless they are lesbians, in
6
Glenn T. Stanton, Why Not Gay Marriage?, undated PDF, available at
http://www.family.org/cforum/pdfs/fosi/marriage/Why_Not_Gay_Marriage.pdf, last visited, October 8, 2006.
which case, having no husbands, they do not get to participate at all.7 Then, if one prohibits
recognition of same-sex marriages, it is a fair conclusion that lesbians and gay men get at best
secondary access to participation in the political process. Whether we rely primarily on the
feminist proposition that the personal is political, or on the Foucaultian proposition that
“sexuality” exists in western culture primarily as a vehicle for the exercise of the state’s
administrative power,8 the point remains that definitions of acceptable intimate interactions
within couples have implications for the “public” realms of politics and law, and vice versa.
Political conservatives have made very clear that they hope to appoint federal judges at
all levels who will decide cases according to the conservatives’ preferred political and legal
principles.9 They have also made very clear that they consider even the remote possibility of
legal recognition for same-sex marriages to be an egregious instance of judicial usurpation.10
The phrase, “one-flesh union,” has not much appeared in the press coverage of debates over the
composition of the federal judiciary, or over particular judicial nominees.11 Regardless, the
phrase, or its underlying legal logic, may prove useful to conservatives who wish to preclude
legal recognition of same-sex marriages as part of their larger goal of reinforcing patriarchy.
7
Christine A. Littleton, Double and Nothing: Lesbian as Category, 7 UCLA WOMEN’S L.J. 1 (1996-1997).
8
MICHEL FOUCAULT, THE HISTORY OF SEXUALITY, VOLUME ONE: AN INTRODUCTION (1978). See also, WILLIAM B. TURNER, A
GENEALOGY OF QUEER THEORY 36-61 (2000).
9
See Adam Liptak, The New 5-to-4 Supreme Court, NY TIMES, April 22, 2007.
10
Bush Hits Hard at Gay Marriage, N.Y. TIMES, Oct. 30, 2006: “’For decades, activist judges have tried to redefine
America by court order,’ [President George W.] Bush said Monday. ‘Just this last week in New Jersey, another
activist court issued a ruling that raises doubt about the institution of marriage. We believe marriage is a union
between a man and a woman, and should be defended’”; PETER SPRIGG, OUTRAGE: HOW GAY ACTIVISTS AND LIBERAL
JUDGES ARE TRASHING DEMOCRACY TO REDEFINE MARRIAGE (2004); Lawrence, 539 U.S. at 604 (Scalia dissenting): “The
Court today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of
homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen
not to appeal).”
11
A search of ProQuest Newspapers using the phrase, “one-flesh union,” on April 25, 2007 produced one hit:
Katherine Kersten, Taste – Houses of Worship: Gospel of Inclusion?, WALL STREET JOURNAL, Aug. 8, 2003 (opinion
piece decrying supposed abandonment by Episcopal church of “2,000 years of bedrock Christian teaching about
marriage, the family, and sexuality”).
We must at least consider the possibility, however, that the “one-flesh union” definition
of marriage will ultimately backfire for Christian conservatives. As we discuss below,12 this
definition necessarily rests on an account of politics and law that is antithetical to the Anglo-
American tradition of political theory since Locke. On this view, the appeal to Genesis for a
legal definition of marriage does not solely, or even primarily, contravene the Establishment
Clause of the First Amendment to the United States Constitution. It forecloses the very
possibility of politics in a manner that violates foundational principles of American liberalism.13
Appeals to supposedly divinely inspired text for policy decisions involve an abdication of human
moral reasoning that is the antithesis of politics, at least as defined in the Anglo-American
tradition. Insofar as conservatives care about tradition, the rule of law, and moral and intellectual
consistency, they cannot continue to rely on the “one-flesh union” definition of marriage for
purposes of law and public policy in the United States.
II. Political Convergence
In his 2004 book, Marriage under Fire: Why We Must Win This War, James Dobson calls
on his readers to contact their members of Congress in support of the Federal Marriage
Amendment, which would write the prohibition on legal recognition of same-sex marriages into
the United States Constitution.14 Dobson is the founder and, until recently, the President of
Focus on the Family, certainly the largest and probably the most influential Christian
12
Infra, sec. V.C.
13
Chai R. Feldblum, Gay is Good: The Moral Case for Marriage Equality and More, 17 Yale J.L. & Feminism 139
(2005) (hereinafter, Gay is Good). See also, Chai R. Feldblum, Moral Conflict and Liberty: Gay Rights and
Religion, 72 Brooklyn L. Rev. 61 (2006). Carlos A. Ball, Moral Foundations for a Discourse on Same-Sex
Marriage: Looking beyond Political Liberalism, 85 Geo. L.J. 1871 (1996-1997); CARLOS A. BALL, THE MORALITY OF
GAY RIGHTS: AN EXPLORATION IN POLITICAL PHILOSOPHY (2003).
14
DOBSON, supra note 1 at 79-82.
conservative organization in the United States.15 Part of Dobson’s rhetorical strategy is to
portray himself as the beleaguered but unbowed champion of traditional morality against the
depredations of militant, mean-spirited LGBT activists.16 He so much sees himself as the
national Daddy that he explicitly compares LGBT activists to unruly adolescents, calling on his
followers to stand firm in their parental authority while proponents of same-sex marriage
metaphorically slam doors, throw things, and threaten to run away.17
In Dobson’s account, he is not the only proverbial national Daddy who has suffered
unjust attacks by LGBT activists. He also points to protests against the late John Cardinal
O’Connor of New York, who became a particular target of LGBT and AIDS activists for his
opposition to effective measures for reducing the spread of the Human Immunodeficiency Virus
(HIV), which most experts consider to be the cause of AIDS.18 From a feminist and queer
perspective, it might seem obvious that James Dobson and Cardinal O’Connor share many policy
priorities, making political solidarity between them unremarkable.

15
But see, Trouble in the Family: Is James Dobson’s Legendary Power Starting to Wane? THE ECONOMIST, April 6,
2007 (giving overview of Dobson’s career but adducing evidence for a decline in his influence); Kirkpatrick, supra
note 4 (former Republican Representative Dick Armey denouncing Dobson’s influence on the Republican Party).
Even if Dobson’s individual influence is waning, however, it is far too early to celebrate. See, You Ain’t Seen
Nothing Yet: Christian America’s Political Arm is More Complex and More Dynamic Than It First Appears. And it
Will Be Hard to Stop, THE ECONOMIST, June 25, 2005, pp. 25-27 (noting that George W. Bush had addressed the
Southern Baptist Convention for four years in a row, emphasizing his opposition to same-sex marriage and abortion
rights). CONGRESSIONAL QUARTERLY identified both Focus on the Family and the Southern Baptist Convention as
major sources of Christian conservative political influence immediately after the 2004 elections: John Cochran, Key
Conservative Groups, CQ WEEKLY, Nov. 13, 2004, p. 2685.
16
Dobson, supra note 1 at 68-71. Needless to say, Dobson does not use the term “LGBT,” which stands for
“lesbian, gay, bisexual, transgender” and reflects the systematic effort to recognize and perpetuate the political
solidarity of subgroups who have not always gotten along well, and whose policy concerns do not always overlap
even if the peculiar logic of gender and sexuality in the United States causes discrimination on the basis of sexual
orientation and discrimination on the basis of gender identity to look very similar in important ways. He prefers the
term “homosexual.” Id. passim.
17
Dobson, supra note 1 at 66: “The shouting and blustering of homosexual activists is not unlike that of a rebellious
teen who slams doors, throws things around, and threatens to run away. Most parents have had to deal with this
kind of behavior and have learned that giving in at such a time can be disastrous for both parties. What’s needed is
loving firmness in the face of temper tantrums and accusations.” Dobson first achieved fame during the 1970s for
publishing a book on parenting called DARE TO DISCIPLINE (1970). One might be excused for wondering about
Dobson’s exact beliefs on the relationship between marriage and discipline.
18
See Chris Crane, A Papal Smear, NEW YORK BLADE, April 15, 2005, p. 18 (contrasting Ronald Reagan’s
“irresponsibly slow” response to AIDS with Pope John Paul II, who “actively blocked HIV prevention in an
unconscionable fashion”).
Much before the 1990s, however, Catholics and conservative Protestants shared a deep
mistrust, firmly grounded in the Protestant Reformation and the centuries of religious warfare
that erupted in Europe as a results.19 With his studies of the Moral Majority during the 1980s,
political scientist Clyde Wilcox demonstrated the inherent limitations of an organization whose
primary local chapters were Baptist Bible Fellowship (BBF) churches. He describes a sermon by
a BBF/Moral Majority pastor who not only characterized the Catholic Church as the “harlot of
Rome,” but also asserted that Protestants in mainline denominations were “unsaved,” more
mainstream evangelicals were not much better, and that Pentecostals and charismatics, by
speaking in tongues, spoke “in the tongues of Satan.”20
These sorts of divisions Pat Robertson and Ralph Reed hoped to overcome with the
Christian Coalition, which Robertson founded shortly after his 1988 presidential campaign.21
Addressing the topic, “What do religious conservatives really want?” in 1994, Christian
Coalition Executive Director Reed began by describing John F. Kennedy’s response to questions
about his Catholic faith during the 1960 presidential campaign.22 This response reflected Reed’s
rhetorically astute approach to presenting the political agenda of the Christian Right: he drew a
parallel between the situation of religious conservatives in the 1990s and one of the nation’s
19
On anti-Catholic prejudice in the history of the United States, see Timothy Verhoeven, Neither Male nor Female:
Androgyny, Nativism, and International Anti-Catholicism, 24 AUSTRALASIAN J. OF AM. STUDIES 5 (2005); MARK S.
MASSA, ANTI-CATHOLICISM IN AMERICA: THE LAST ACCEPTABLE PREJUDICE (2003); James Martin, et al., Review
Symposium on MASSA, ANTI-CATHOLICISM IN AMERICA, 115 AM. CATHOLIC STUDIES 63 (2004); Stephen Kenny, A
Prejudice that Rarely Utters its Name: A Historiographical and Historical Reflection upon North American Anti-
Catholicism, 32 AM. REV. OF CANADIAN STUDIES 639 (2002); Marjule Anne Drury, Anti-Catholicism in Germany,
Britain, and the United States: A Review and Critique of Recent Scholarship, 70 CHURCH HISTORY 98 (2001).
20
Clyde Wilcox, Mark J. Rozell, and Roland Gunn, Religious Coalitions in the New Christian Right, 77 SOC. SCI. Q.
543 (1996). See also, Clyde Wilcox, Religious Orientations and Political Attitudes: Variations within the New
Christian Right, 15 AM. POL. Q. 274, 281 (1987) (finding that the Baptist members of the Moral Majority were
characteristically the most conservative).
21
See Cochran, supra note 5.
22
Ralph Reed, Jr., What Do Religious Conservatives Really Want? in DISCIPLES & DEMOCRACY: RELIGIOUS
CONSERVATIVES AND THE FUTURE OF AMERICAN POLITICS 1 (ed. Michael Cromartie, 1994).
most revered Democratic presidents, who was also the nation’s first (and, to date, only) Catholic
president.
Leaders of the Christian Coalition deliberately tried to overcome divisions among
Protestants, and between Protestants and Catholics.23 They also tried systematically to appeal to
African Americans.24 Robertson hired an African American co-host for his television show, The
700 Club.25 Similarly, both Focus on the Family and Concerned Women for America took steps
during the 1990s to expand their appeal beyond their conservative Protestant bases.26 For
roughly ten years, Focus on the Family has sponsored “ex-gay” conferences at which they
advocate the conversion of lesbians and gay men to Christian heterosexuality.27 Presenters at
these conferences call attention to the fact that they have literature specifically for Catholics as
well as Protestants.28
Reporting in May 2001, the British newsmagazine The Economist noted that, from some
angles, the Christian Right appeared to be in disarray.29 The Moral Majority had long since
ceased to exist, and the Christian Coalition suffered major organizational problems.30 The article
noted, however, that George W. Bush had not only appealed successfully to white southern
Protestants in the 2000 election, but that he had started to cultivate Catholics, who are
concentrated in heavily populated northern states such as Michigan and Pennsylvania with large
23
Wilcox, supra note 20 at 545ff.
24
Clyde Wilcox, Blacks and the New Christian Right: Support for the Moral Majority and Pat Robertson among
Washington, D.C. Blacks, 32 REV. OF RELIGIOUS RESEARCH 43 (1990).
25
Id. at 44.
26
Wilcox, supra note 20 at 546.
27
Dobson, supra note 1 at 73-77. See also, Haggard Pronounced “Completely Heterosexual,” NY TIMES, Feb. 6,
2007 (disgraced former pastor Ted Haggard claims to have overcome “acting-out” sexually with men); TANYA ERZEN,
STRAIGHT TO JESUS: SEXUAL AND CHRISTIAN CONVERSIONS IN THE EX-GAY MOVEMENT (2006).
28
Personal observation of William B. Turner at Focus on the Family “ex-gay” conference, St. Paul, MN, August
2000.
29
God and Man in Washington: George Bush is Redefining the Religious Right, May 19, 2001, p. 32.
30
Id.
numbers of Electoral College votes.31 In the months before the September 11 attacks, Bush even
gave a staff member the task of “Arab-Muslim outreach” and routinely included “mosques” in
his standard list of religious institutions.32
Most importantly for present purposes, however, Bush relied heavily on the support of
Christian conservative organizations to win confirmation for his two nominees to the United
States Supreme Court, Chief Justice John Roberts and Justice Samuel Alito.33 Insofar as Roberts
replaced Chief Justice Rehnquist, the change is barely any change at all from the LGBT
perspective; Rehnquist voted reliably against lesbian/gay equality at every opportunity.34 Insofar
as Alito replaced Sandra Day O’Connor, however, LGBT activists may have lost an important
vote.35 In his extensive study of lesbian/gay civil rights decisions at all levels of government,
Daniel Pinello found that the judge’s identity matters – judges who are younger, female, and/or
racial/ethnic minorities are more likely to favor lesbian/gay civil rights claims – but doctrine still
matters as well.36 The one-flesh union lies at the intersection of judicial identity as determined
by the political process, and legal doctrine. Christian conservatives hope to use the political
process to appoint judges who share their belief in marriage as a “one-flesh union.” The next
section examines the doctrinal claims that rest on that definition of marriage.
31
Id. But see Iraq War Follows Bush to Commencement, May 11, 2007 (describing protests at Bendectine St.
Vincent College in Latrobe, PA over appearance of President George W. Bush as commencement speaker. “Nuns
protested on the edge of campus several Sundays in a row.”)
32
God and Man in Washington, supra note 29. See also, Cynthia Burack, Getting What “We” Deserve: Terrorism,
Tolerance, Sexuality, and the Christian Right, 25 NEW POLITICAL SCIENCE 329 (2003) (discussing Jerry Falwell’s and
Pat Robertson’s assertions that pagans, feminists, and queers, among others, bore responsibility for the September
11 terrorist attacks because they promoted the secularization of American culture).
33
David D. Kirkpatrick, Alito’s Note to Evangelist is Called Just a Thanks, NY TIMES, March 2, 2006.
34
Lawrence v. Texas, 539 U.S. 558, 561 (2003) (Rehnquist voting with dissenters to uphold TX sodomy statute that
applied only to same-sex couples); Boy Scouts of America v. Dale, 530 U.S. 640, 642 (2000) (Rehnquist writing
majority opinion to allow Boy Scouts to flout state nondiscrimination statute); Romer v. Evans, 517 U.S. 620, 622
(1996) (Rehnquist voting with dissenters to uphold CO constitutional amendment repealing all existing prohibitions
on sexual-orientation discrimination and prohibiting all such policy in the future); Bowers v. Hardwick, 478 U.S.
186 (1986) (Rehnquist voting with majority to uphold GA sodomy statute). See also, Liptak, supra note 9.
35
Lawrence, 539 U.S. at 579-85 (O’Connor concurring with decision to strike down TX sodomy statute, but on
equal protection rather than due process grounds); Romer, 517 U.S. at 622 (O’Connor voting with majority to strike
down CO constitutional amendment). See also, Liptak, supra note 9.
36
DANIEL R. PINELLO, GAY RIGHTS AND AMERICAN LAW (2003).
III. Legal Convergence
The most thorough articulations of the theory that marriage is a “one-flesh union” come
from New Natural Law (NNL) theorists, the most prominent of whom are John Finnis37 and
Robert P. George.38 Finnis and George routinely draw on the Pope and other Roman Catholic
authorities for their claims.39 At the same time, they claim to find support for their positions in
ancient Greek and Roman authors.40 They also represent their version of natural law as simply
the articulation of the human moral universe as God intended it.41 This position is internally
rational and consistent – if God created the universe to function in a particular way, then we
should not find surprising that humans at widely different historical periods will infer – nay, even
deduce – the same moral principles. Just as Archimedes’ or Pythagoras’ observations about the
laws of the natural universe remain accurate today, this being the same earth in the early twenty-
first century as it was in their day, so Plato’s assertions about the immorality of same-sex sexual
conduct should remain accurate today.42
37
John Finnis, Law, Morality, and “Sexual Orientation,” 9 NOTRE DAME J.L. ETHICS & PUB. POL’Y 11 (1995)
(hereinafter, “Sexual Orientation”). See also, John Finnis, The Good of Marriage and The Morality of Sexual
Relations: Some Philosophical and Historical Observations, 42 AM. J. JURIS. 97 (1997); John Finnis, Liberalism and
Natural Law Theory, 45 MERCER L. REV. 687 (1993-1994).
38
Robert P. George, What’s Sex Got to Do with It? Marriage, Morality, and Rationality, 49 AM. J. JURIS. 63 (2004)
(hereinafter, Marriage, Morality, and Rationality). See also, ROBERT P. GEORGE, IN DEFENSE OF NATURAL LAW 152
(1999); Robert P. George, A Defense of the New Natural Law Theory, 41 AM. J. JURIS. 47 (1996).
39
See Finnis, “Sexual Orientation,” supra note 37 at 27, citing papal encyclical Veritatis Splendor.
40
See Finnis, “Sexual Orientation,” supra note 37at 17; George, Marriage, Morality, and Rationality, supra note 38
at 73.
41
See, e.g., Robert P. George and Christopher Wolfe, Natural Law and Liberal Public Reason, 42 AM. J. JURIS. 31
(1997): “if ‘public reason’ is interpreted broadly (perhaps we could even say literally), then natural law theorists
believe that natural law theory is nothing more or less than the philosophy of public reason. Acting according to
right reason – for good reasons – is, after all, precisely what natural law is all about.”
42
See Randall Baldwin Clark, Platonic Love in a Colorado Courtroom: Martha Nussbaum, John Finnis, and
Plato’s Laws in Evans v. Romer, 12 YALE J.L. & HUMAN. 1 (2000).
Key to the NNL approach is to distinguish “intrinsic” from “instrumental” goods.43 On
this view, “reproductive-type” sex acts are morally good because they literally embody the
intrinsic good of marriage, which is to fulfill the “one-flesh union.”44 George asserts:
where the central defining good of marriage is understood to be one-flesh unity, children
who may be conceived in marital acts are understood not as ends extrinsic to marriage…,
but rather, and uniquely, as gifts that supervene on acts whose central defining and
justifying point is precisely the marital unity of spouses.45
Because this is a subtle, and for most people highly counterintuitive, argument, we will risk
annoyance by emphasizing: the “marital unity of the spouses” is itself the goal. “One-flesh
unity” does not refer, as one might expect, to the child as the literal fleshly manifestation of the
couple’s marital union, but to the marital union itself. Apparently, for these Catholic
conservatives, the primary point of marriage is for the partners to have sex with one another.
Hence the term, “reproductive-type,” not “reproductive” simpliciter. According to NNL
theorists, when a sterile couple performs “reproductive-type” acts, those acts are moral even
though reproduction is impossible. As Finnis explains the point:
For: A husband and wife who unite their reproductive organs in an act of sexual
intercourse which, so far as they then can make it, is of a kind suitable for generation, do
function as a biological (and thus personal) unit and thus can be actualizing and
experiencing the two-in-one-flesh common good and reality of marriage, even when
43
George, Marriage, Morality, and Rationality, supra note 38 at 67.
44
Id. at 71-72: “Even if the mated pair is sterile, intercourse, provided it is the reproductive behavior characteristic
of the species, makes the copulating male and female one organism. Although not all reproductive-type acts are
marital – adulterous acts, for example, may be reproductive in type (and even in effect), but are intrinsically
nonmarital – there can be no marital act that is not reproductive in type.”
45
Id. at 74-75.
some biological condition happens to prevent that unity resulting in generation of a
child.46
It should be obvious that the caveat, “some biological condition,” as the basis for circumstances
that can justify “reproductive-type” acts, allows for sex that will reliably not result in
reproduction where the couple is completely sterile, or what we might call conditionally sterile
because of the point in the woman’s menstrual cycle, or because she is pregnant. It does not
allow for sex that will reliably not result in reproduction because of the use of contraceptives: “so
far as they then can make it….”47
All other sex – any sex by a married couple that is not “reproductive-type,” and all sex by
unmarried partners, which of course includes anal penetration, cunnilingus, and fellatio by any
couple, same- or opposite-sex – is inherently immoral.48 To repeat: such sex is inherently
immoral.49 For NNL theorists, there are no circumstances at all under which same-sex couples
can make their sex morally good. One of the more interesting elements of the NNL approach is
their claim to defend moral principles that promote a holistic notion of something they call the
individual’s “personal reality.” On this view, immoral sex is inherently harmful because it has
the effect of “disintegrating” otherwise whole persons.50 It does so because immoral sex
46
Finnis,“Sexual Orientation,” supra note 37 at 30-31.
47
See Michael J. Perry, The Morality of Homosexual Conduct: A Response to John Finnis, 9 NOTRE DAME J.L. ETHICS
& PUB. POL’Y 41, 52 (1995): “Finnis seems to be arguing that it is a priori impossible that either homosexual conduct
or ‘deliberately contracepted’ heterosexual conduct (even in the context of a marriage) can do more than provide
each partner with an individual gratification. What a strange claim.”
48
George, Marriage, Morality, and Rationality, supra note 38 at 71-72.
49
See Perry, supra note 47 at 60: “The reader can decide for herself whose ‘reality’ is an illusion: that apprehended
by the heterosexual couples who engage in mutually affirming and nurturing but ‘deliberately contracepted’ sexual
conduct in the context of their marriages, and by the homosexual couples who engage in mutually affirming and
nurturing sexual conduct in the context of their lifelong, monogamous relationships of faithful love – or, instead,
that postulated by John Finnis, for whom ‘deliberately contracepted’ sex in marriage and homosexual sex in a
lifelong monogamous relationship of faithful love is equal in moral worthlessness to the commercial sex of a
prostitute with the prostitute’s client.”
50
Finnis,“Sexual Orientation,” supra note 37 at 29: “For want of a common good that could be actualized and
experienced by and in this bodily union, that conduct involves the partners in treating their bodies as instruments to
be used in the service of their consciously experiencing selves; their choice to engage in such conduct thus
disintegrates each of them precisely as acting persons” (emphasis in original). The peculiarities of this position are
too numerous to list, but from at least one perspective, Finnis here adopts a narrowly, and impressively reductively,
involves treating one’s sex organs as mere instruments of pleasure, rather than as the elements of
one’s personal reality that have the capacity to produce the “one-flesh union” that is intrinsic to
marriage – that is, using sex “instrumentally” rather than as the “intrinsic” good of marriage.51
We call this definition of morally good sex a gerrymandered tautology. It is a tautology
in the sense that it is an entirely self-referential definition.52 It is, thus, ultimately impossible to
understand fully for anyone who has not fully accepted the antecedent assumptions of its
proponents. It admits of no empirical test or other external referent because it is an assertion
about the way an omnipotent deity defined human identity in the minds of NNL authors. It is,
that is, metaphysical in the strongest possible sense. It is a gerrymandered tautology because the
emphasis on “reproductive-type” sex acts – that is, sex acts defined in terms of the body parts
involved, without necessary reference to the actual production of children – looks suspiciously
like a device whose sole purpose is to justify allowing sterile heterosexuals to marry while
prohibiting same-sex couples from marrying: naked heterosexual supremacy. If the actual
possibility for reproduction is not the sine qua non of moral sex acts, then why is the specific
body parts that the participants choose to use for achieving orgasm the factor that determines the
boundary between morality and immorality? (And why is helping someone else achieve orgasm
immoral?) NNL theorists cannot explain why they draw the line around “reproductive-type” sex
acts except by circular reference to their preference for defining marriage in a particular way.
biologistic understanding of human identity, insofar as he seems to deplore as morally worthless human conduct “in
the service of their consciously existing selves.” So conscious decisions are inherently less moral than acts
emanating from brute passion? One is also tempted to suggest that many LGBT persons find themselves far more
disintegrated as the result of deliberate acts and advocacy of discrimination against them by the likes of Finnis than
from the sexual choices of their “consciously existing selves.”
51
See George, Marriage, Morality, and Rationality, supra note 38 at 73.
52
See OXFORD ENGLISH DICTIONARY on line: “d. Applied to the repetition of a statement as its own reason, or to the
identification of cause and effect….”
That is, not surprisingly, the NNL theorists want to define the morality of sexual activity entirely
by reference to heterosexual marriage.
“Gerrymander” is a political term. It denotes the manipulation of electoral districts to
include or exclude populations for the purpose of achieving a particular political outcome.53 Our
use of a political term for describing the NNL definition of marriage is not merely, not even
primarily, metaphorical. Our point is not to convey something about the NNL definition of
marriage by making reference to an analogous activity or result in a different domain. Rather,
the term “gerrymander” for denoting the NNL definition of marriage serves to focus our
attention on the important, inescapable connection between definitions of marriage, including the
types of persons who may or may not marry, on one hand, and participation in the political
process on the other.
Thus, the phrase “one-flesh union” captures the political and legal conflict between
Christian conservatives and feminists/queers, starting with the debate over legal recognition of
same-sex marriages and continuing back to the most elemental definitions of who may
participate fully in government, and who may not. Or, that phrase demonstrates how closely
connected the definitions of marriage and of who may participate fully in government have
always been under patriarchy.
Maggie Gallagher makes the inverse point. Gallagher is perhaps best known in this
debate for advancing the thesis that marriage is good for heterosexual couples on the basis of
social scientific evidence.54 She clearly connects her social scientific conclusion to the biblical
53
See Vieth v. Jubelirer, 541 U.S. 267 (2004) (political gerrymandering of electoral districts by state legislators
presents a political question with no justiciable standards that the courts could apply); “[A] method of arranging
electoral districts so that the political party making the arrangement will be enabled to elect a greater number of
representatives than they could on a fair system, and more than they should have in proportion to their numerical
strength,” OXFORD ENGLISH DICTIONARY on line (last visited April 17, 2007).
54
See Maggie Gallagher, Why Marriage is Good for You, http://www.city-
journal.org/html/10_4_why_marriage_is.html (“Quietly, with little fanfare, a broad and deep body of scientific
literature has been accumulating that affirms what Genesis teaches: it is not good for man to be alone – no, nor
definition of marriage, however.55 But this only makes sense. To anyone who believes in
lesbian/gay equality, it is bizarre to offer the supposed benefits of marriage as the reason to
oppose legal recognition of same-sex marriage. The obvious response is, why exclude lesbians
and gay men from those benefits?56 What clearer definition of “second-class citizen” could one
want than “persons who suffer exclusion from the rights and benefits that the state confers”? If,
as Gallagher claims, married couples live longer,57 and she opposes legal recognition of same-sex
marriage, then she must rest content with the expectation that her policy preference will have the
effect of shortening the lives of lesbians and gay men.
From a feminist/queer perspective, this proposition is reprehensible on its face.
Apparently Gallagher considers it moral, and therefore reasonable, because she accepts the “one-
flesh union” definition of marriage from Genesis.58 And here Gallagher’s position differs only in
degree from that of other Christian conservatives who advocate the death penalty for lesbians
and gay men:59 Gallagher wants lesbians and gay men to die prematurely, she just wants to be
more passive in her aggression. The reason to exclude lesbians and gay men from the benefits of
marriage is that God wants it that way.60 Presumably, having defined marriage this way, God
would not allow same-sex couples to enjoy the benefits that Gallagher ascribes to marriage
anyway. According to Gallagher, if we evacuate all of the distinctively religious elements from
woman neither”); LINDA J. WAITE AND MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER,
HEALTHIER, AND BETTER OFF FINANCIALLY (2000).
55
See, e.g., Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to
Andrew Koppelman, 2 U. ST. THOMAS L.J. 33 (2004-2005).
56
Not to belabor the point, but Gallagher’s implicit position is that marriage is good for you, and therefore she
explicitly wants to keep lesbians and gay men from having it. Perhaps the most elemental expression of prejudice
possible.
57
Gallagher, supra note 54, Why Marriage is Good for You, reason #9, “Married people live longer and healthier
lives.”
58
Gallagher, supra note 54.
59
See, e.g., Tim LaHaye, The Unhappy Gays (1975).
60
See Burack, supra note 32.
our definition of marriage, nothing will be left.61 This is a relatively modest version of the claim
that one routinely hears from various conservative activists – if we allow legal recognition of
same-sex marriages, we invite all manner of disastrous consequences.
This is one of James Dobson’s main claims.62 Dobson cites Gallagher’s work in his
book,63 which he starts by citing the same passage of Genesis that Gallagher appeals to.64 Two
primary differences exist between Gallagher’s and Dobson’s expositions of the point. First,
Gallagher stresses her version of the social scientific data, citing the Bible in support,65 while
Dobson begins with the Bible and cites Gallagher’s social scientific data in support.66
The other difference is that Dobson offers his own marriage as an example. One might
wonder about Dobson’s book at the outset why he did not include his wife, Shirley, as a co-
author. His account of his marriage illustrates why. Dobson tells the story of the first
Valentine’s Day to occur after they married. He was still in graduate school, so he went to the
library and remained all day and well into the evening. Leaving the library, he stopped by his
parents’ house for a visit. By the time he returned to the apartment he shared with Shirley, he
discovered all of the lights turned out and Shirley’s Valentine’s Day dinner, complete with cake,
sitting cold on the table in the dark apartment.
What Dobson claims to have learned from this experience is worth a long quotation:
61
Waite and Gallagher, supra note 54 at 39 n. 19: “But the legal structure of marriage is deeply influenced by our
specific religious traditions about marriage. Which of these conceptions are we allowed to keep and which must be
discarded as unduly religious? Monogamy? Mutual fidelity? Primacy of husband and wife over other relations?
None of these are human universals. They are the products of a specific marriage tradition deeply rooted in
religious ideas. Creating a truly ‘neutral’ marriage system, uninfluenced by any religion, would mean eliminating
from the law most of what people mean by marriage.”
62
Dobson, supra note 1 at 17.
63
Dobson supra note 1 at 82.
64
Id. at 7: “Behold, the institution of marriage! It is one of the Creator’s most marvelous and enduring gifts to
humankind. This divine plan was revealed to Adam and Eve in the Garden of Eden and then described succinctly in
Genesis 2:24”; Waite and Gallagher, supra note 54 at 39 n. 19.
65
Waite and Gallagher, supra note 54 at 39 n. 19.
66
Dobson supra note 1 at 7, 82.
Fortunately, Shirley is not only a romantic lady, but she is a forgiving one, too. We
talked about my insensitivity later that night and came to an understanding. I learned a
big lesson that Valentine’s Day and determined never to forget it. I’ll bet, however, that
I’m not the only brute who has underestimated the importance of February 14. There
must be several million guys who can identify with my failures as a husband…. What I
was beginning to understand in those early days were the ways my wife was uniquely
crafted, and how I alone could meet her most important emotional needs. Shirley was
also learning some new things about me. She observed that I needed her to respect me, to
believe in me, and to listen to my hopes and dreams. Shirley said all the right things, not
because she was trying to manipulate me, but because she clearly believed them. She
would often tell me, ‘I am proud of you, and I’m glad to be part of your team. It is going
to be exciting to see what God will do with us in the days ahead.’ The way she looked up
to me gave me confidence – I was a student who had never really accomplished anything
up to that point – and empowered me to take risks professionally and to reach for the
sky.67
It hardly seems necessary to parse the beliefs about gender hierarchies in this passage, not solely
or even primarily because we assume a feminist audience for this paper, but because those
beliefs are so obvious. James Dobson has no concern whatsoever to moderate his advocacy of
gender hierarchies in marriage.
Even so, as great believers in the value of stating the obvious, we offer a few
observations. Men can learn from women, but the only lesson is that women are emotional and
irrational, and that happily married men simply learn to anticipate their wives’ irrational,
emotional demands. Be sure to get home in time for heart-shaped cake on Valentine’s Day!
67
Dobson, supra note 1 at 14-15.
Presumably because women’s emotional needs are irrational, women should never try to satisfy
those needs by, say, becoming a law professor or joining a lesbian separatist commune. The
only thing that will satisfy those needs is a man. On God’s team, women are just as valuable as
men, but they cannot serve as team leaders.68 Shirley is a member of the team, but it is James’
team, and he is the leader, she the follower. This is so in part because, at least with respect to the
factors that really matter, all women are exactly the same.69 Hence Dobson’s ability to dispense
marital advice in the form of statements about the experiences of “several million guys.”
Dobson emphatically intended his book for a mass audience. But that fact should not be
a cause of relief or satisfaction to feminists and queers. He also explicitly recommended that his
readers contact their members of Congress in support of the federal anti-marriage amendment.
The degree of his political clout may be a matter of dispute,70 but its existence is indisputable,
and he is by no means the only Christian conservative leader who advocates a constitutional
amendment to prohibit recognition of same-sex marriages.
IV. Legal and Political Implications
Perhaps the best place to see the legal and political convergence around “one-flesh
union” as the basis for Christian conservative opposition to recognition of same-sex marriages is
in an article by Jay Alan Sekulow and John Tuskey.71 Both Sekulow and Tuskey worked for the
68
See also, Southern Baptist Convention, The Baptist Faith and Message 5 (2000), available at
http://www.sbc.net/bfm/default.asp (last visited April 18, 2007): “While both men and women are gifted for service
in the church, the office of pastor is limited to men as qualified by Scripture”; John Paul II, Apostolic Letter,
Ordinatio Sacerdotalis, to The Bishops of the Catholic Church on Reserving Priestly Ordination to Men Alone,
http://www.vatican.va/holy_father/john_paul_ii/apost_letters/documents/hf_jp-ii_apl_22051994_ordinatio-
sacerdotalis_en.html (last visited April 18, 2007).
69
See ROSALIND ROSENBERG, BEYOND SEPARATE SPHERES: THE INTELLECTUAL ROOTS OF MODERN FEMINISM (1982) (evidence
of how feminists have fought this particular stereotype since at least the late 19th century).
70
See supra note 22.
71
Jay Alan Sekulow and John Tuskey, Sex and Sodomy and Apples and Oranges: Does the Constitution Require
States to Grant a Right to Do the Impossible? 12 BYU J. PUB. L. 309 (1998).
American Center for Law and Justice (ACLJ),72 a sort of Christian conservative answer to the
ACLU, at the time of the article’s publication, 1998. Sekulow in particular is an important
manifestation of legal and political convergence within the Christian right. Pat Robertson asked
him to found the ACLJ in 1991, after he won a landmark case arguing that Jews for Jesus have a
right to evangelize in airports.73 During the 2005 battle in the United States Senate over the rule
allowing filibusters of federal judicial nominees, The Wall Street Journal extolled Sekulow’s
ability to keep rank-and-file Christian conservatives motivated on behalf of the Republican
Party’s position while discouraging extreme threats, such as efforts to impeach large numbers of
federal judges, that would only produce backlash.74
Equally interesting is the fact that this article appeared in the Brigham Young University
Journal of Public Law. Mormons have emerged as one of the leading forces opposing
recognition of same-sex marriage,75 which may by itself bring about one of the greatest
rapprochements among Christian conservatives yet. Other conservative Protestants have long
harbored significant hostility toward Mormons.76 A leading legal voice in opposition to
72
www.aclj.org
73
Board of Airport Commissioners of the City of Los Angeles et al. v. Jews for Jesus, Inc., et al., 482 U.S. 569
(1987). See also, Jeanne Cummings, Crowd Control: In Judge Battle, Mr. Sekulow Plays a Delicate Role; Lawyer
Rallies Evangelicals on Filibuster Issue, Keeps Them from Boiling over, WALL STREET J., May 17, 2005, A1; SARA
DIAMOND, NOT BY POLITICS ALONE: THE ENDURING INFLUENCE OF THE CHRISTIAN RIGHT 86-87 (1998).
74
Cummings, supra.
75
See, e.g., Jonathan Kim, ReThink Review: 8: The Mormon Proposition – How Gay Marriage Got SLC Punk’d,
HUFFINGTON POST, June 27, 2010 (http://www.huffingtonpost.com/jonathan-kim/rethink-review-em8-the-
mo_b_627147.html) (last visited Aug. 6, 2010).
76
Kenneth Woodward, The Presidency’s Mormon Moment, NY TIMES, April 9, 2007 (anticipating Mormon Mitt
Romney’s speech at Regent University, which Christian Coalition founder Pat Robertson created; Woodward notes
that conservative Christians “study Mormonism in order to rebut its claims”); Adam Nagourney and Laurie
Goodstein, Mormon Candidate Braces for Religion as Issue, NY TIMES, Feb. 8, 2007; Mitt Romney’s Problem, THE
ECONOMIST, Sept. 30, 2006, p. 44 (explaining that Romney has trouble appealing to Christian conservative voters
because he is a Mormon); John Kincaid, Extinguishing the Twin Relics of Barbaric Multiculturalism – Slavery and
Polygamy – from American Federalism, 33 PUBLIUS 75 (2003) (noting similarity between slavery and Mormon
polygamy as issues defining the practice of federalism under the U.S. Constitution during the 19th century);
Diamond, supra note 50 at 64 (reluctance of Moral Majority to work with Mormons in opposition to Equal Rights
Amendment). See also, PAUL KEITH CONKIN, AMERICAN ORIGINALS: HOMEMADE VARIETIES OF CHRISTIANITY 162-225, 162
(1997): “[Mormonism] has so many distinctive doctrines and stands so far apart from all other Christian
denominations as to constitute a completely new religious tradition. Some scholars, rather than classifying it as a
Christian denomination, see it as a distinct and separate world religion.”
recognizing same-sex marriages, however, is Lynn D. Wardle, who teaches at Brigham Young
University’s law school.77 Wardle cooperated with two professors from the Catholic University
of America to edit Marriage and Same-Sex Unions: A Debate.78
Sekulow and Tuskey’s article is a particularly clear, forthright explanation of Christian
conservative opposition to legal recognition of same-sex marriage. They argue that judges who
cannot discern any important difference between opposite-sex and same-sex relationships will
have trouble seeing any legal justification for refusing to recognize same-sex relationships as
marriages on equal terms with opposite-sex relationships.79 “The debate over same-sex
marriage, then, and the issues that debate raises, are as much ontological as legal.”80 The title of
their article conveys much about their argument: “Sex and Sodomy and Apples and Oranges -
Does the Constitution Require States to Grant a Right to Do the Impossible?” For Sekulow and
Tuskey, marriage as an institution exists independent of the state such that no amount of
legislative or judicial redefinition can bring about same-sex marriages, which are definitionally
impossible.81 The title also displays a subtle parallel with the New Natural Law definition of
marriage. “Sex and Sodomy and Apples and Oranges” suggests that somehow sodomy is not
sex, which is consistent with the NNL position that only “reproductive-type,” marital sex is
moral.
Sekulow and Tuskey provide a clear, helpful explication of marriage as “one-flesh
union,” for which they rely on Finnis, George, and other authors as their sources.82 They make
77
See, e.g., Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. Ill. L. Rev. 833
(asserting that evidence exists to raise serious questions about impact on children of having lesbian/gay parents).
78
LYNN D. WARDLE, ET AL., MARRIAGE AND SAME-SEX UNIONS: A DEBATE 393-96 (2003).
79
Sekulow and Tuskey, supra note 71 at 314.
80
Id.
81
Id. at 313: “Two men or two women cannot enter into a relationship that by definition consists of one man and one
woman. No law can change this reality.” See William B. Turner, The Perils of Marriage as Transcendent
Ontology: National Pride at Work v. Gov. of Mich., forthcoming, Geo. J. of Gender and Justice (if this conservative
proposition is true, then conservatives should have no fear of legislation recognizing same-sex marriage).
82
clear the appeal of the New Natural Law approach, even as they hint at a lingering attachment to
the doubts between Protestants and Catholics: “This answer, while consistent with classical
Christian (or at least Catholic) teaching on marriage, is philosophical, not theological, and makes
no appeals to religious authority.”83 They repeat the gerrymandered tautology according to
which sterile couples can engage in “reproductive-type” sex acts even if they cannot actually
reproduce.84 “Reproductive-type” activity makes the married, heterosexual couple “one flesh”
regardless of whether children “supervene upon,” to use George’s phrase,85 the couple as a result
of that activity. Sekulow and Tuskey cite Finnis in support of their definition of marriage:
We begin with the premise that marriage is a free and complete giving of the two spouses
to each other. When two people freely consent to give themselves to each other, they
create an intercommunion of their whole persons - mind, spirit, and body. This insight is
reflected, as Finnis notes, in Plutarch's observation in the early second century that the
union of husband and wife creates an "integral amalgamation" of their two lives.86
This passage nicely captures both the Christian conservative position on the issue, and the
difficulty of resolving the issue.
One obvious question for any feminist and/or queer observer in response to Sekulow and
Tuskey’s definition of marriage is, why cannot same-sex couples engage in “a free and complete
giving of the two spouses to each other”? Finnis states flatly that they cannot.87 Quoting the
English Catholic scholar Germain Grisez, Sekulow and Tuskey assert that, unlike all other
83
Id.
84
Id. at 320-21.
85
George, What’s Sex Got to Do with It?, supra note 23 at 75.
86
87
Finnis, “Sexual Orientation,” supra note 37 “Reality is known in judgment, not in emotion, and in reality,
whatever the generous hopes and dreams and thoughts of giving with which some same-sex partners may surround
their sexual acts, those acts cannot express or do more than is expressed or done if two strangers engage in such
activity to give each other pleasure, or a prostitute pleasures a client to give him pleasure in return for money, or
(say) a man masturbates to give himself pleasure and a fantasy of more human relationships after a gruelling day on
the assembly line.”
biological functions, humans can only reproduce as pairs.88 For anyone who wants to reserve
marriage to heterosexuals, this proposition only leads back to the question, what about
heterosexual couples who cannot reproduce? The answer, as we have seen, is the gerrymandered
tautology, which Sekulow and Tuskey explain by analogy to murder: just as a murderer can have
the requisite intent to commit the act even if the gun fails to fire or the intended victim is wearing
a bullet-proof vest, so a heterosexual couple can have the intent to reproduce even if their
particular reproductive organs lack the necessary characteristics as a result of some inherent
anomaly or disease.89 Of course, the same is true of same-sex couples: if intent to reproduce is
completely separable from ability to do so, then why is the sex of same-sex couples who would
like to have children, whether via alternative modes of insemination, adoption, etc., any less
moral than sterile heterosexual couples? Again, the logical absurdity of these explanations from
persons who apparently possess at least the minimal intelligence necessary to write a law review
article is explicable only in terms of an appeal to a tautology informed by belief in a
metaphysical, omnipotent deity.
Sekulow and Tuskey, as attorneys at a law firm, focus their attention on how various
arguments might play in the federal courts, which is why they make the patently ridiculous claim
that their definition of marriage “makes no appeals to religious authorities.” Having explored to
their own satisfaction the New Natural Law definition of marriage as “one-flesh union,” they go
on to discuss the analogy between prohibitions on recognition of same-sex marriages and
prohibitions on recognition of interracial marriages.90 We are deeply concerned about the
political and legal effects of these arguments, but we take exactly the opposite position from
Sekulow and Tuskey – we consider legal recognition for same-sex marriages to be necessary as a
88
89
Id. at 321-22. This analogy actually reflects a misunderstanding of the NNL position, for which intent is
irrelevant. See Finnis, “Sexual Orientation,” supra note 37.
90
matter of constitutional law, and as a matter of simple justice. Therefore, we consider it essential
in closing this section of the paper to note certain logical implications of the New Natural Law
arguments that Sekulow and Tuskey disregard. In the next section, we offer systematic critiques
of NNL theory from feminist, queer, and liberal perspectives. Here, we offer two key points that
NNL theorists seem logically committed to, given the rest of their arguments, but which seem
patently bizarre and/or offensive on their face. If this is where NNL theorizing leads, anyone
who cares about the equal protection of the laws should beware.
Robert George follows through one important implication of the NNL proposition that
“one-flesh unity,” rather than reproduction, is the “intrinsic good” of marriage, onto which
children may or may not “supervene” as “gifts.”91 He asserts:
Desired under a proper description, that is, with a proper understanding and disposition,
and sought by means that are in line with such an understanding and disposition, children
are treated by their parents, even in their conception, not as means to their parents’ ends,
but as ends-in-themselves; not as objects of the desire or will of their parents, but as
subjects whose fundamental interests as human beings are protected by principles of
justice and human rights: not as property, but as persons.92
It seems impossible to avoid two conclusions from this passage.
First, George seems to suggest that children’s status as persons rather than property
depends on why their parents choose to have them. George may mean that parents who want
children for the wrong reasons will treat them as property, rather than as persons. Certainly this
is a potential problem, but the identification of it in the current context only begs the question:
what is the state interest in distinguishing parents who treat their children as property from
91
George, Marriage, Morality, and Rationality, supra note 38 at 74-75. See supra, note 29 and accompanying text
for full quotation.
92
George, Marriage, Morality, and Rationality, supra note 38 at 75.
parents who treat their children as persons, and how does George propose to distinguish the two
classes of parents from each other? Insofar as the state interest consists of minimizing harms to
children, George’s distinction seems unlikely to help. Surely an abused or neglected child is an
abused or neglected child, regardless of whether the abusing/neglecting parent(s) see the child as
person or property. Or, to put the point another way, surely a child is a person regardless of why
her parents chose to have her.
The issue of distinguishing the two classes of parents leads to the second, and related,
proposition. George’s position here seems to entail the conclusion that all same-sex couples who
want children do so for the wrong reasons, and that therefore all same-sex couples who have
children will treat those children as property. “Reproductive-type” acts literally embody the
“one-flesh unity” of marriage, which is the intrinsic good of marriage.93 Although, as the name
indicates, “reproductive-type” acts may have the effect of producing children, that is not their
primary purpose. Children are a happy gift that someone, presumably an omnipotent deity,
bestows upon those heterosexual couples who engage in “reproductive-type” acts, and on whom
the deity has already decided to bestow all of the biological characteristics necessary for actual
reproduction to occur. Why this allegedly omnipotent deity would not choose to deprive all
unmarried couples of the biological capacity to reproduce is unclear. More, George’s position
has the presumably unintended consequence of making children almost accidental by-products of
marital sex, when it seems obvious that the best way to ensure proper care for children is to make
the children the conceptual as well as the experiential core of the marital union.
Regardless, by definition, in this framework, same-sex couples cannot engage in
“reproductive-type” acts, so presumably any children they acquire come from somewhere other
than the omnipotent deity who set this system up. This logic would also seem to apply to all
93
See supra, notes 37-52 and accompanying text for complete explication of this logic.
parents who have children via adoption or any sort of technological assistance, unless perhaps
the opportunity to adopt or the ability to afford technological assistance is just the approximate
form in which the deity chooses to manifest the supervening gift of children (but if lesbian
couples can easily get access to the technological assistance necessary to have children, or can
conceive children without much technological assistance, then isn’t God supervening children on
them?).
John Finnis was less concerned with the status of children than with the status of lesbians
and gay men in “Law, Morality, and ‘Sexual Orientation’.”94 We will not be surprised to find
scare quotes95 around “sexual orientation” here. Presumably Finnis, like Sekulow and Tuskey,
sees himself as engaging in an exploration of ontology, such that the terms of the debate include
words that have no real-world referent.96 Scare quotes are the solution for one who must use a
term in order to participate intelligibly in a debate, but who believes the terms of that debate to
be mistaken. We will explore the issue of ontology, in conjunction with metaphysics and as
opposed to epistemology, within the ambit of liberal political theory, below.
Here, however, a long quotation is helpful to see the legal implications that Finnis draws
from his position:
So there was a sound and important distinction of principle which the Supreme Court of
the United States overlooked in moving from Griswold v. Connecticut (private use of
contraceptives by spouses) to Eisenstadt v. Baird (public distribution of contraceptives to
unmarried people). The truth and relevance of that distinction, and its high importance
94
Finnis, “Sexual Orientation,” supra note 37 at 14-15 (1995).
95
See Geoffrey K. Pullum, Secure and Insecure Scare Quotes, May 21, 2005, at
http://itre.cis.upenn.edu/~myl/languagelog/archives/002188.html (last visited, April 23, 2007). We mean to express
no opinion about the differences between the semantic and pragmatic aspects of meaning that Professor Pullum
writes to defend (although we agree with his argument insofar as he states it at this web page). Our primary interest
is in his discussion of the uses of scare quotes. We believe that Finnis uses them in the “secure” manner that Pullum
describes, to indicate his belief that one should eschew the term “sexual orientation.”
96
Finnis, supra note 37 at 32, characterizes the term “homosexual orientation” as “highly equivocal.”
for the common good, would be overlooked again if laws criminalizing private acts of
sodomy between adults were to be struck down by the Court on any ground which would
also constitutionally require the law to tolerate the advertising or marketing of
homosexual services, the maintenance of places of resort for homosexual activity, or the
promotion of homosexualist ‘lifestyles’ via education and public media of
communication, or to recognize homosexual ‘marriages’ or permit the adoption of
children by homosexually active people, and so forth.97
It is obvious to no less an authority than Justice Antonin Scalia that the legal restrictions on
lesbian/gay advocacy that Finnis here advocates plainly violate various provisions of the United
States Constitution.98
This passage is important because it illustrates the lengths that NNL theorists are willing
to go to in order to impose their vision of family life on the polity. Finnis and Scalia take
chiastic positions: Finnis rejects sodomy statutes as illegitimate uses of state power even as he
advocates restrictions on the associational and expressive freedoms of lesbians and gay men,
while Scalia defends the associational and expressive freedoms, at least insofar as they are
essential to full participation in the political process, even as he asserts the power of state
governments to prohibit sodomy, including via statutes that target only same-sex couples. As the
next section explains, however, from a feminist/queer perspective, this is a distinction without a
difference insofar as prohibiting sodomy as the act that allegedly defines the class of
97
Id. at 38. Similarly, Robert George asserts that prudential considerations regarding marital privacy and law
enforcement could lead one consistently to hold that all contraceptive use is immoral and that the state still should
not attempt to prohibit married couples from using contraceptives. ROBERT P. GEORGE, IN DEFENSE OF NATURAL LAW
152 (1999).
98
Lawrence, 539 U.S. at 603 (Scalia dissenting): “Let me be clear that I have nothing against homosexuals, or any
other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other
morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters
is the best.”
“homosexuals,” and prohibiting same-sex marriages, both have the effect of restricting the
participation of lesbians and gay men in the political process.
V. Queer, Feminist, and Liberal Critiques
Queer theory, feminist theory, and liberal theory all provide distinct, but importantly
related, bases from which to critique the one-flesh union. What ties these critiques together is
that they all ask, from different angles, why Christian conservatives choose to define individual
identity and its relationship to state power as they do.
A. Queer Theory
Following queer theorist Eve Kosofsky Sedgwick, the Christian conservative position as
articulated in New Natural Law theory only begs the question: why is orgasmic coupling by
same-sex couples necessarily a set of acts called “sex” that anyone has any reason to compare to
“reproductive-type” acts?99 Why does anything involving a penis or vagina and a hand, a mouth,
an anus, or another penis or vagina, have to fall within the ambit of only one type of ontology,
with its consequent moral analysis? NNL theorists like analogies for explaining bodily
functions.100 Perhaps comparing same-sex orgasmic coupling to “reproductive-type” acts is no
different from comparing the use of human hands to paint paintings with the use of human hands
to write checks. The mere fact that the same body parts are involved is no reason to apply the
99
EVE KOSOFSKY SEDGWICK, Queer and Now, in TENDENCIES (1993).
100
George inadvertently illustrates well the gerrymandered quality of the exception for sterile heterosexuals by citing
a “thought experiment” from Grisez: “Imagine a type of bodily, rational being that reproduces, not by mating, but by
some individual performance. Imagine that for these beings, however, locomotion or digestion is performed not by
individuals, but only by biologically complementary pairs that unite for this purpose. Would anybody acquainted
with such beings have difficulty understanding that in respect of reproduction the organism performing the function
is the individual, while in respect of locomotion or digestion the organism performing the function is the united
pair?” George, Marriage, Morality, and Rationality, supra note 38 at 78. In the case of locomotion, what is the
analog to a sterile couple? A couple who walks together but never reaches a destination? What is the analog to a
same-sex couple, and what reason would we have for thinking that the same-sex analog would locomote immorally?
same moral and/or aesthetic standards to both activities. Perhaps reproducing and fucking for
fun simply belong to different ontologies, insofar as one wishes to ontologize.
This approach reflects the queer theoretical practice of examining definitions of sexual
and gender identity, expression, and practice in our culture in order to discern their political
investments and implications.101 Queer theorists suspect that what seems most “natural” and
inevitable in our culture – presumably in any culture – seems that way more by dint of
associations that powerful persons cultivate for their own advantage than because of any external
necessity, divine or otherwise.102 One of the chief virtues of the queer theoretical approach is
that it contemplates, even assumes, the possibility of radical incommensurability among
competing descriptions and explanations of the world. That is, any ultimate reconciliation of the
Christian conservative and lesbian/gay rights perspectives on this issue may be impossible.103
Certainly the difficulty for a queer author of describing carefully and accurately the NNL
argument militates in favor of this claim. They have their explanation of the universe, which
they consider internally consistent and morally and ontologically necessary. We have our own,
which we also perceive as internally consistent and which we will defend on moral and political
grounds even if we abjure the claim to necessity as itself part of the problem – one who believes
in the moral and ontological necessity of one’s worldview is more likely than others, we think,
to feel justified in using state power, or ordinary violence, to impose that worldview on persons
101
See TURNER, supra note 8 at 3.
102
See, e.g., JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF “SEX” (1993).
103
See ARKADY PLOTNITSKY, RECONFIGURATIONS: CRITICAL THEORY AND GENERAL ECONOMY (1993). Plotnitsky is not a
queer theorist, but he does a good job of exploring the implications of developments in theoretical physics during the
20th century for our understanding of language and linguistic meaning, which in turn is closely related to the
poststructuralist philosophy that underlies queer theory. He uses the term “undecideability” to explore the point that
humans have no ultimate platform from which to adjudicate between, say, the Christian conservative and the queer
theoretical world views. The larger point is that quantum physics, with its observations of particles that defy the
laws of Newtonian physics even as they apparently underlie the Newtonian world we see around us, would seem to
obviate any possibility of a definitive ontology, insofar as a definitive ontology would seem to rest on the ability to
identify discrete, solid objects that quantum physics tells us is actually impossible. Interestingly, the Dalai Lama
asserts that quantum physics confirms the Buddhist worldview. See Dalai Lama, The World in a Single Atom.
who disagree, especially when one’s vision of moral and/or ontological necessity grows out of
belief in an omnipotent deity.
In Gender Trouble, Judith Butler cites anthropologist Mary Douglas for the proposition
that bodily boundaries often parallel cultural boundaries.104 Persons who allow the wrong things
into their bodies, or use the wrong routes, or both, threaten the prevailing identity and practices
of the culture. This should remind us of John Finnis’ assertion that same-sex sexual conduct has
the effect of “disintegrating” the individuals who participate in it – and implicitly threaten the
larger culture thereby.105 From the Christian conservative perspective, it seems that the link
between individual and national identity is not even metaphorical. Acquiescence to marriage as
“one-flesh union” should be, on this view, a prerequisite to full participation in the polity. As
Turner explains in his study of queer theory, liberalism claims to begin with a single, monolithic
definition of human identity: “We hold these truths to be self-evident, that all men [sic] are
created equal, that they are endowed by their Creator with certain inalienable rights.” Long
historical experience demonstrates, however, that one must first possess a particular type of
identity, grounded in a particular type of body, and apparently in a particular type of sexual
practice, in order to enjoy all the rights and privileges of the liberal state.106
B. Feminist Theory
Butler has also written to demonstrate that it is inaccurate to divide feminist studies from
LGBT studies by assigning to feminists primary concern for gender and assigning to LGBT
scholars primary concern for sexuality.107 Feminists have always attended to issues of sexuality.
Still, we can reasonably assert that a common concern about marriage for feminists is that gender
104
JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY (2006, 1990).
105
Supra note 50 and accompanying text.
106
Turner, supra note 8 at 16.
107
Judith Butler, Against Proper Objects, 6 DIFFERENCES: A JOURNAL OF FEMINIST CULTURAL STUDIES 1 (1994).
hierarchy may be an inescapable element of it. Certainly the feminist critique is correct if one
uses the Christian conservative definition of marriage. It is not true that no women defend
Christian conservative positions on issues of marriage definition and related family law
matters.108 It is true that none of the Christian conservative legal scholars who advocate the
“one-flesh union” definition of marriage is a woman. It is also true, as we saw with James
Dobson, that Christian conservatives apparently only refer in debates about the definition of
marriage specifically to women in order to define the identities of all women in universal terms
that reflect men’s preferences and interests. And, again, neither Dobson’s own wife, nor any
other woman, had any apparent opportunity to contribute to Dobson’s jeremiad on marriage.
(Well, maybe one typed it for him.)
So it is that the debate over legal recognition of same-sex marriages occurs at the
intersection of concerns about both sexuality and gender, as articulated by queer theorists, by
LGBT scholars who may or may not identify as queer, and by feminists who may or may not
identify as LGBT or queer. As E.J. Graff puts it, “[t]he battle against same-sex marriage is a
battle against basic feminism.”109 It is worth noting, however, that even if this assertion is true,
and we believe that it is, one may not logically conclude that the battle for same-sex marriage is
a battle for feminism. Too many feminists have either directly argued otherwise, or analyzed the
gender hierarchies in marriage such that it can be difficult to see how, even if both (multiple?)
parties are the same sex, they can evade the historical weight of the institution. Although the
major lesbian/gay civil rights organizations hoped before the Hawaii litigation in the early 1990s
108
See, e.g., DONALD CRITCHLOW, PHYLLILS SCHLAFLY AND GRASSROOTS CONSERVATISM: A WOMAN’S CRUSADE (2005);
Gallagher, supra notes 54, 55.
109
E.J. Graff, What is Marriage For?, 38 NEW ENG.L. REV. 541, 544 (2004).
to avoid same-sex marriage as a losing issue,110 they have long since taken it up as a goal with no
room for reconsideration or debate.111
This was not always the case. Perhaps the earliest lesbian/feminist brief against same-sex
marriage was Paula Ettelbrick’s.112 At the time, Ettelbrick was Legal Director of Lambda Legal
Defense and Education Fund, the nation’s oldest public interest law firm dedicated to lesbian/gay
civil rights. She argued that marriage is “steeped in a patriarchal system that looks to ownership,
property, and dominance of men over women as its basis.”113 The evidence from the Christian
right nearly twenty years later confirms Ettelbrick’s characterization. Recall Maggie Gallagher’s
insistence that, if we remove all of the specifically religious elements from marriage, nothing
worthwhile or recognizable is left. Ettelbrick contends that the marriage quest conflicts with the
original liberation movement for lesbians and gay men. 114 She argues that same-sex couples will
“end up mimicking all that is bad about the institution of marriage in our effort to appear to be
the same as straight couples.”115 Ettelbrick believes that if lesbians and gay men assimilate into
the current institution of marriage, they would lose the power of defining any varying or different
relationships of choice.116 Without knowing how Ettelbrick defines/understands herself, still we
can call this a specifically queer position, insofar as queer theory’s/politics’ positions entails a
110
See David Chambers, Couples: Marriage, Civil Union, and Domestic Partnership, in CREATING CHANGE:
SEXUALITY, PUBLIC POLICY, AND CIVIL RIGHTS 281-304 (John D’Emilio, William B. Turner, and Urvashi Vaid, eds.
2000).
111
This is clear from the web sites of the major organizations: the Human Rights Campaign,
http://hrc.org/Template.cfm?
Section=Center&Template=/TaggedPage/TaggedPageDisplay.cfm&TPLID=63&ContentID=17353 (last visited
April 24, 2007); National Gay and Lesbian Task Force,
http://www.thetaskforce.org/issues/marriage_and_partnership_recognition (note the heading, “Marriage/Partner
Recognition,” last visited April 24, 2007); Lambda Legal Defenses and Education Fund,
http://www.lambdalegal.org/our-work/issues/marriage-relationships-family/same_sex_relationships/ (last visited
April 24, 2007); American Civil Liberties Union, http://www.aclu.org/lgbt/relationships/index.html (last visited
April 24, 2007).
112
Paula L. Ettelbrick, Since When Is Marriage a Path to Liberation? OUT/LOOK, Fall 1989, pp. 9-17, 23.
113
Id.
114
Id.
115
Id at 23.
116
Id.
persistent refusal not only of substantive categories, but of categorization that would disable the
fundamentally ontologizing impulse behind the debate over the correct definition of “marriage.”
Ironically, this feminist critique lands in the same place as the conservatives: marriage really is
inherently heterosexual in the worst sense, and allowing same-sex couples to participate is not
going to change that fact.
Leading lesbian family law scholar Nancy Polikoff has followed this logic through over
the intervening years, linking the feminist critique of marriage to larger concerns of family law
and policy. Polikoff asserts that “[t]he desire to marry in the lesbian and gay community is an
attempt to mimic the worst of mainstream society, an effort to fit into an inherently problematic
institution that betrays the promise of both lesbian and gay liberation and radical feminism."117
Polikoff warns that same-sex marriage will follow the footsteps of the campaign to legalize
abortion. She argues that in order to gain mainstream acceptance, abortion advocates
downplayed women’s sexual freedom by characterizing the issue in terms of “pro-choice,”
substituting privacy for women’s liberation.
Polikoff argues that, as with the attenuated cause of abortion advocates, the effort to
legalize same-sex marriage “would make a public critique of the institutions of marriage
impossible” because long-term, monogamous couples would become the exemplars of the
movement. Consequently, marriage “would be touted as the solution to these couples' problems;
the limitations of marriage, and of a social system valuing one form of human relationship above
all others, would be downplayed.”118 She contends that advocating same-sex marriage “will
117
Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not
"Dismantle the Legal Structure of Gender in Every Marriage," 79 VA. L. REV. 1535, 1536 (1993). See also, Nancy
D. Polikoff, Why Lesbians and Gay Men Should read Martha Fineman, 8 AM. U.J. GENDER SOC. POL'Y & L. 167
(2000) (couching the critique of same-sex marriage in terms of the general critique of marriage as articulated by
feminist legal theorist Martha Fineman).
118
Polikoff, We Will Get What We Ask For, supra at 1546.
detract from, even contradict, efforts to unhook economic benefits from marriage and make basic
health care and other necessities available to all.”119
As this passage indicates, although Polikoff states her opposition to same-sex marriage in
terms of “lesbian and gay liberation and radical feminism,”120 she also considers the issue in the
narrower terms of family law and policy specifically. She notes the peculiarity of confining
certain legal rights and privileges to married couples, rather than extending them to a wider range
of adult relationships.121 She points to a report, Beyond Conjugality, by the Law Commission of
Canada as the basis for a systematic revision of the law as it pertains to “all caring and
interdependent personal adult relationships.”122 The demand for same-sex marriage “is not
optimal family policy” according to Polikoff because it perpetuates the privileging of married
over all non-married relationships.123 Consistent with her wide-ranging concern for family law
and policy generally, Polikoff takes both sides in the same-sex marriage debate to task for
relying on the proposition that children fare best with two, married parents, rather than rethinking
fundamentally how law and policy could best provide for the well-being of all children.124
Again, this is a position that one could characterize as queer, insofar as resistance to
categorization entails attention to the proliferation of options that human actually cook up, here
options for adult, consensual, relationships of various forms of support, economic, emotional,
psychological, household, health, etc.
Although advocates of same-sex marriage have managed to stunt this debate in many
quarters, the work of Polikoff and other lesbian feminist authors indicates that it continues
robustly among legal scholars.

119
Id. at 1549.
120
Id.
121
See, e.g., Nancy Polikoff, Ending Marriage as We Know It, 32 HOFSTRA L. REV. 201 (2003-04).
122
Id. at 203.
123
Id.
124
Polikoff, For the Sake of All Children, supra note 2.
C. Liberalism
Perhaps surprisingly, garden-variety liberalism may provide the most compelling
critique, at least in historical terms, of the “one-flesh union” definition of marriage. As a
question of the history of Anglo-American political and legal theory and practice, Christian
conservatives simply get it wrong – they posit a version of individual identity, and of the
individual’s relationship to the state, that profoundly contravenes this nation’s traditions.
Whereas the purpose of this nation’s founding documents and traditions is to create a field in
which politics can occur, Christian conservatives wish to preclude political debate and action by
subsuming the definition of marriage – and of gender, sexuality, and the state – within their
interpretation of the Bible.125
To reiterate, the phrase, “one-flesh union,” comes directly from the Bible. Both
Protestants Jay Sekulow and Alan Tuskey at the ACLJ, and the Catholic NNL authors, represent
their theory as originating in a western intellectual tradition that precedes Christianity.126 Their
purpose in presenting this claim is to avoid the charge of establishing religion in violation of the
First Amendment to the Constitution. Even if we accept the Biblical book of Genesis as the
starting point for our political theory, however, we still arrive at the conclusion that the Christian
conservative approach precludes, rather than enabling, public debate and decision-making by
members of the polity.
This observation comes directly from the work of John Locke, whom NNL authors
conspicuously omit from their pantheon of western moral/political philosophers, despite his
125
This section borrows heavily from William B. Turner, Of Marriage and Monarchy: Why John Locke Would
Support Same-Sex Marriage, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=968274. See also, William B.
Turner, Comment: Putting the Contract into Contractions: Reproductive Rights and the Founding of the Republic,
2005 WISC. L. REV. 1535.
126
status as far and away the most influential in the United States.127 Insofar as we see Locke as
incorporating the empiricism of the scientific revolution into western political theory, thereby
playing a key role in the advent of modernism, NNL theorists’ refusal to engage with Locke
amounts to a rejection of modernism. This is the political equivalent of the Catholic Church’s
punishment of Galileo for confirming the Copernican account of the universe.
Living at a time and place when reference to the Bible was both necessary and the
starting point for any debate, Locke articulated a solution that would have a major impact on the
founders of the United States.128 He asserted, based on his own careful reading of the Bible, that
God had chosen not to institute any specific form of government among human beings.129 This
claim necessarily precluded acceptance of the conservative argument during the seventeenth
century that the authority of kings derived from God via God’s grant of authority over the earth
to Adam in Genesis. Openly disputing the conservative claim for a direct genealogy of authority
from Adam to the kings of England, and covertly doubting the related claim of original sin as
transmitted from Adam to all subsequent human beings, Locke instead articulated a theory of
127
JOHN LOCKE, SECOND TREATISE OF GOVERNMENT (Mark Goldie, ed., 2003) (1690). Locke nowhere states the point
exactly as we do. However, insofar as he disparaged the proposition that kings receive their right to rule from God
via God’s grant of authority to Adam, id. at 307, and asserted as a consequence that humans have the right to
eliminate any existing government when it fails in its responsibility to protect the citizens’ natural rights, id. at
128
Locke’s impact on the Founders was a matter of some scholarly dispute during the late twentieth century, but
most informed observers agree that the distinction between Lockean liberalism and classical republicanism in the
minds of the Founders was badly overblown. See Nomi Maya Stolzenberg, A Book of Laughter and Forgetting:
Kalman’s “Strange Career” and the Marketing of Civic Republicanism, 111 HARV. L. REV. 1025 (1998) (review of
LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM (1996)); MICHAEL P. ZUCKERT, THE NATURAL RIGHTS REPUBLIC
6-7, 208-10 (1996) (hereinafter, NATURAL RIGHTS REPUBLIC), MICHAEL P. ZUCKERT, NATURAL RIGHTS AND THE NEW
REPUBLICANISM passim (1994) (hereinafter, NEW REPUBLICANISM) (disputing the dichotomy between the Lockean
natural rights and republican political theories); Alex Tuckness, Discourses of Resistance in the American
Revolution, 64 J. OF THE HIST. OF IDEAS 547-63, 547 (2003) (hereinafter, Discourses of Resistance); GILLIAN BROWN,
THE CONSENT OF THE GOVERNED: THE LOCKEAN LEGACY IN EARLY AMERICAN CULTURE 3 (2001): “The formation of
Americans from British colonials (and other immigrants under British rule) proceeded according to Lockean
reorientations of British habits of thought. Locke’s reconceptualization of consent pervaded the colonies not only
through editions of his works but also through schoolbooks and popular stories.” Note that this is a claim, not only
about revolutionary leaders, but about the educated populace as a whole, and it rests on observations of a wide range
of relevant primary sources.
129
Locke, First Tract of Government (1660), quoted in Parker, supra note 45 at 12: “the Scripture speaks very little
of polities [i.e., politics] anywhere (except only the government of the Jews constituted by God himself over which
he had a particular care) and God doth nowhere by distinct and particular prescriptions set down rules of
government and bounds to the magistrate’s authority.”
government that derived in important respects from the Bible, but that also posited a major role
for human reason in deciding how to grant power to, and therefore how to limit the power of, the
state.130 Note that the Lockean dispensation entails some significant distance between Biblical
literalism and the state.
Consistent with his analysis of state power, Locke conceived of marriage as purely
contractual.131 He argued that human parents remain married for long periods primarily because
human children take so long to reach maturity.132 He asserted that spouses should be able to
divorce at will, with determination of child custody according to principles of contract.133 Locke
failed to follow his own reasoning through on the subject of gender hierarchy in marriage – he
assigned the last word to husbands in any dispute, not least because married couples formed
something of a political one-flesh union in Locke’s account.134 But his position on this issue
patently contradicts the rest of his analysis. No more reason exists to confer absolute authority
on husbands in marriage than to confer absolute authority on monarchs in government. Indeed,
all of the reasons to deny such authority to monarchs also apply a fortiori to deny such authority
to husbands (or, presumably, to wives).135
More important than the specifics of Locke’s understanding of marriage, however, is the
general theory of politics he articulated. His account of biblical authority, combined with his
belief in the power of human reason,136 combine to preclude exactly the sort of direct appeal to
biblical definitions for resolution of political and legal controversies that Christian conservatives
130
KIM IAN PARKER, THE BIBLICAL POLITICS OF JOHN LOCKE passim, 109, 149 (2004): “The doctrine of Adam’s original
sin was contrary to the goodness of God [on Locke’s view], and to base a political order on such a false doctrine was
very dangerous indeed.”
131
LOCKE, SECOND TREATISE at ¶ 77-78.
132
Id. ¶¶ 78-82. See Mary B. Walsh, Locke and Feminism on Private and Public Realms of Activities, 57 REV. OF
POLITICS 251-78, 264 (1995) for an overview of feminist discussions of Locke’s account of marriage.
133
LOCKE, SECOND TREATISE at ¶ 82.
134
Id.
135
See William B. Turner, Comment: Putting the Contract into Contractions: Reproductive Rights and the
Founding of the Republic, 2005 Wis. L. Rev. 1535, 1567-70.
136
Parker, supra note 130 at 37, 65.
make in the debate over legal recognition of same-sex marriages. Quite unexpectedly, here the
queer, feminist, and liberal analyses converge insofar as all provide different reasons why the
state may not legitimately preclude the full political participation of entire classes of persons by
denying them the right to marry the person of their choice.
No Christian right author expressly advocates the exclusion of lesbians and gay men from
the political process, although John Finnis might as well given his advocacy of limits on the
expressive and associational freedoms of lesbians and gay men.137 Still, to the extent that
Christian conservatives claim that “marriage precedes and exceeds the church and the state,”138
and wish to prohibit legal recognition for same-sex marriage, it is a reasonable, perhaps
necessary, inference that married couples have a privileged, perhaps exclusive, role to play in
defining the polity. Obviously, if one then prohibits lesbians and gay men from marrying one
another, and if one defines marriage in terms of gender hierarchy, then lesbians, heterosexual
women, and gay men have at best a subordinate role in defining the polity. In principle,
sovereignty is indivisible, so any concession of authority at all by women and gay men in the
process of defining the polity is tantamount to the concession of all authority – if heterosexual
men get to define the bounds of participation by women and gay men, then women and gay men
participate only to the extent that heterosexual men choose to let them.
This is not the equal protection of the laws.139 Nor is it self-government. A claim that
most Christian conservative authors make in this debate is that the use of the courts by
lesbian/gay activists to achieve legal recognition of same-sex marriages involves usurpation of
the people’s legitimate power to decide public policy.140 Again, a Lockean analysis demonstrates
137
138
139
U.S. Const., Amend. XIV, sec. 1: “no state shall... deny to any person within its jurisdiction the equal protection
of the laws”; Romer v. Evans, 517 U.S. 620, 631-32 (1996).
140
See Dobson, supra note 1 at 79, quoting law professor Gerard V. Bradley, “‘The only way to rein in this runaway
Court is to change the supreme positive law: the Constitution. The Federal Marriage Amendment (FMA) would do
why this claim is false. Locke asserted that, given the establishment of a polity, majority rule
was the only viable mechanism for making specific policy decisions.141 However, majority rule
in the Lockean framework operated only after all members of the polity had consented. By
definition – in Locke’s case, by biblical definition – all potential members of the polity start out
equal. No principle exists for restricting the participation rights of anyone who accepts the
legitimate exercise of the polity’s power. Even then, legitimate majoritarian decisions must
comport with the defining imperative of all government, which is to protect individuals’ rights to
life, liberty, and property. Plainly, refusing legal recognition to same-sex marriages fails this
elemental responsibility of government, just as the conservative attempt to enforce a definition of
lesbian/gay identity and allowable rights claims of lesbians and gay men violates the principle of
originary equality.
On a Lockean analysis, then, the issue of same-sex marriage is not available for majority
determination because it implicates the right of an entire class of persons to full participation in
the polity from the outset. Even if this conclusion does not inhere in the refusal to recognize
same-sex marriages per se, it is, as we have seen, a necessary implication of the Christian
conservative claim that marriage precedes and exceeds the church and the state.
VI. Conclusion
The “one-flesh union” certainly lives up to its name insofar as it provides the basis for
intellectual, political, and legal convergence among Christian conservatives who otherwise might
that. It would impose upon willful judges and justices a limitation on their ability to redefine the family’”; Bush
Hits Hard at Gay Marriage, N.Y. TIMES, Oct. 30, 2006: “’For decades, activist judges have tried to redefine America
by court order,’ [President George W.] Bush said Monday. ‘Just this last week in New Jersey, another activist court
issued a ruling that raises doubt about the institution of marriage. We believe marriage is a union between a man
and a woman, and should be defended’”; PETER SPRIGG, OUTRAGE: HOW GAY ACTIVISTS AND LIBERAL JUDGES ARE TRASHING
DEMOCRACY TO REDEFINE MARRIAGE (2004).
141
LOCKE, SECOND TREATISE, ¶¶ 95-99.
well remain at odds with one another. It may seem depressing to learn that the people who gave
us Chief Justice John Roberts and Justice Samuel Alito also have an internally consistent
doctrinal analysis to support their opposition to legal recognition of same-sex marriages. But,
better the evil you know than the one you don’t.
Finally, we believe that robust debate among feminists and queers over the value of
marriage as an institution will contribute to the articulation of plural, perverse positions on behalf
of liberal variety among families and policies that recognize them.

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Beware the “One-Flesh Union”:

Conservatives Coalesce in Opposition to Same-Sex Marriage

alliances between feminist and LGBT legal and political activists.

opposition to legal recognition of same-sex marriages appears to have produced an increasing

political one-flesh union – in defense of their retrograde definition of marriage as exclusively

conservatives, or even all conservatives, together2; however, to do so is necessarily to ignore the

overwhelming empirical evidence of important variations, including conflict, among

consequences that feminists and queers ignore at our peril.3

paper focuses on convergences among different types of Christian conservatives, centrifugal as

off “evangelicals” or “fundamentalists” as politically and legally hopeless is self-defeating.

as equal in their complementarity, but “complementarity” still means systematic exclusion of

women from leadership positions.

beings according to sexual practice.

legal recognition for same-sex marriages to be an egregious instance of judicial usurpation.10

possibility of politics in a manner that violates foundational principles of American liberalism.13

purposes of law and public policy in the United States.

II. Political Convergence

conservative organization in the United States.15 Part of Dobson’s rhetorical strategy is to

depredations of militant, mean-spirited LGBT activists.16 He so much sees himself as the

metaphorically slam doors, throw things, and threaten to run away.17

priorities, making political solidarity between them unremarkable.

speaking in tongues, spoke “in the tongues of Satan.”20

Leaders of the Christian Coalition deliberately tried to overcome divisions among

his standard list of religious institutions.32

III. Legal Convergence

conduct should remain accurate today.42

Key to the NNL approach is to distinguish “intrinsic” from “instrumental” goods.43 On

justifying point is precisely the marital unity of spouses.45

Hence the term, “reproductive-type,” not “reproductive” simpliciter. According to NNL

though reproduction is impossible. As Finnis explains the point:

some biological condition happens to prevent that unity resulting in generation of a

far as they then can make it….”47

couple, same- or opposite-sex – is inherently immoral.48 To repeat: such sex is inherently

We call this definition of morally good sex a gerrymandered tautology. It is a tautology

proponents. It admits of no empirical test or other external referent because it is an assertion

by reference to heterosexual marriage.

“Gerrymander” is a political term. It denotes the manipulation of electoral districts to

marriage by making reference to an analogous activity or result in a different domain. Rather,

process on the other.

always been under patriarchy.

effect of shortening the lives of lesbians and gay men.

From a feminist/queer perspective, this proposition is reprehensible on its face.

same-sex marriages, we invite all manner of disastrous consequences.

sitting cold on the table in the dark apartment.

gender hierarchies in marriage.

amendment to prohibit recognition of same-sex marriages.

IV. Legal and Political Implications

ability to keep rank-and-file Christian conservatives motivated on behalf of the Republican

federal judges, that would only produce backlash.74

harbored significant hostility toward Mormons.76 A leading legal voice in opposition to

of America to edit Marriage and Same-Sex Unions: A Debate.78

Sekulow and Tuskey’s article is a particularly clear, forthright explanation of Christian

Sekulow and Tuskey provide a clear, helpful explication of marriage as “one-flesh

no appeals to religious authority.”83 They repeat the gerrymandered tautology according to

difficulty of resolving the issue.

article is explicable only in terms of an appeal to a tautology informed by belief in a

metaphysical, omnipotent deity.

on to discuss the analogy between prohibitions on recognition of same-sex marriages and

prohibitions on recognition of interracial marriages.90 We are deeply concerned about the

children may or may not “supervene” as “gifts.”91 He asserts:

subjects whose fundamental interests as human beings are protected by principles of

justice and human rights: not as property, but as persons.92

It seems impossible to avoid two conclusions from this passage.

her parents chose to have her.