Order in the Court

Richard Posner's opinion in the 7th Circuit Court of Appeals, striking down anti-marriage equality obstacles in Wisconsin and Indiana, is a fine piece of work, as others have noted. One thing that stood out for me was his citation of Supreme Court Justice Alito's dissent in Windsor, in which Alito refers favorably to the argument "that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so." (133 S. Ct. at 2718)

This thesis is one of those truthisms that mere repetition does not prove. It is absurd on the face of it, but that doesn't stop some people taking it seriously. The principle problem lies in the word intrinsically, which means essentially, necessarily, or inherently: something that is in the nature of a thing as and in itself, without which that thing would not be what it is. So, why does this not work for marriage? I can quickly come up with four reasons.

First, to attach a modifier like intrinsic to an action (such as marriage or sexual intercourse within marriage) is already philosophically questionable, since actions are by their nature not "substances" or "things" but the behavior or activity of things.

Second, the notion of an order is about intention or plan — even further removed from being intrinsic, since intent and plan necessarily involve a state not yet realized.

Third, the action in question, and the estate in which it takes place, is one involving more than one actor — two "things" if you will — and this also violates the notion of intrinsic as particular to a thing.

This is brought home in the final astounding admission that the desired result — assuming it to be desired, which it often isn't even when possible — does not always take place. So much for it being essential, inherent, or intrinsic — something which may not be possible can hardly be held to be essential.

It is fine to say that procreation ought to take place within marriage; but to attempt to reduce marriage to one of its possible outcomes — and one acknowledged not to be possible in many cases — is looking into the beautifully decorated wedding hall through a very narrow crack.

Tobias Stanislas Haller BSG