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84 Geo. L.J. 301 (1995-1996)
Marriage and the Liberal Imagination

handle is hein.journals/glj84 and id is 321 raw text is: Marriage and the Liberal Imagination

In an article marked by the intelligence and fairmindedness for which
his work is widely-and rightly-admired, Stephen Macedo has argued
against our view that sodomy, including homosexual sodomy, is intrinsi-
cally nonmaritalt and immoral. His goal is to show that new natural law2
theorists, such as Germain Grisez, John Finnis, and the two of us, have no
sound argument for drawing moral distinctions-which would, in turn,
provide a basis for legal distinctions (particularly in the area of marriage)-
between the sodomitical acts of devoted, loving, committed homosexual
partners3 and the acts of genital union of men and women in marriage.
We propose in this response to defend our view against Macedo's criticisms.
We heartily commend Macedo's efforts to understand and accurately
represent the view we defend. Nevertheless, we are not entirely happy with.
his formulations of it. Neither Grisez, nor Finnis, nor either of us perceives
the central moral wrongness of sodomitical and other nonmarital sex acts
as consisting in their being distractions from genuine human goods. A
more adequate, though unavoidably more complex, formulation of our
position is the following: (1) Marriage, considered not as a mere legal
convention, but, rather, as a two-in-one-flesh communion of persons that is
consummated and actualized by sexual acts of the reproductive type,4 is an
© 1995 by Robert P. George and Gerard V. Bradley.
* Associate Professor of Politics, Princeton University.
** Professor of Law, University of Notre Dame.
1. We hold that marriage, as a one-flesh communion of persons, is intrinsically, and not
merely instrumentally, good. In marital acts-that is, sexual intercourse that consummates
and actualizes marriage by uniting the spouses in a reproductive-type act, thus making them,
in no merely figurative sense, two-in-one-flesh-spouses participate in this intrinsic good-
ness. Because the biological reality of human beings is part of, not merely an instrument of,
their personal reality, the biological union of spouses in marital acts constitutes a truly
interpersonal communion. John Finnis, Law, Morality, and Sexual Orientation, 69 NOTRE
DAME L. REV. 1049, 1066 (1994). Sodomitical acts, by contrast, lack this unitive capacity,
and thus cannot actualize marriage. Such acts are, therefore, nonmarital even when per-
formed by persons who are married to each other. It is precisely in this sense that sodomy is
intrinsically nonmarital.
2. Stephen Macedo, Homosexuality and the Conservative Mind, 84 GEO. L.J. 261, 264
3. Id. at 279.
4. The concept of a reproductive-type act is biological-functional. It refers to the species-
specific pattern of behavior suited to the reproductive function. Although that function is
completed only if certain nonbehavioral conditions also obtain, the pattern of behavior
remains the same even if those conditions do not obtain. The reproductive-type acts of
humans and other mammals are acts of inseminatory union of male with female genital
organs. The freely chosen reproductive-type acts of spouses are marital in that they actualize
and enable the spouses to experience their interpersonal communion, of which such acts are
the biological matrix. It is important to see that, though all marital acts are reproductive in

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