Together with a coauthor, Gerard V. Bradley, I recently debated issues of marriage and sexual morality, including the question of homosexual acts and relationships, with Stephen Macedo in the pages of the Georgetown Law Journal. Professor Macedo argues that government has an obligation in justice to its homosexually oriented citizens to issue marriage licenses on a nondiscriminatory basis to same-sex couples. If I understand Macedo's argument correctly, he defends a conception of marriage as essentially an emotional and, possibly, spiritual union of two loving and devoted persons who may be of opposite sexes or the same sex. The intimacy and overall value of their union is, or may be, enhanced by the partners' cooperation in the performance of mutually agreeable sexual acts. Professor Bradley and I defend an alternative conception of marriage—one which we believe to be reflected in traditional American and British marriage law, especially in the law governing consummation of marriage. We argue that marriage is a one-flesh (i.e., bodily, as well as emotional, dispositional, and spiritual) union of a male and a female spouse consummated and actualized by sexual acts that are reproductive in type. Such acts consummate and, we maintain, actualize the intrinsic good of marriage whether or not reproduction is desired by the spouses in any particular marital act, or is even possible for them in a particular act or at all.
. . .
Macedo's claim about "denying fundamental aspects of equality" can be sustained only if we presuppose the truth of his own comprehensive liberalism. If the nature and value of marriage are, in truth, what Macedo's comprehensive view supposes them to be, then it is indeed a violation of equality to deny marriage licenses and the full legal benefits of marriage to same-sex partners. This violation occurs, however, only because homosexual partners can in fact realize in their sexual acts and relationships the same constitutive value or values (pleasure, intimacy, the expression of tender feelings) that can be realized by heterosexual spouses. No principle of equality is violated, however, if, in truth, homosexual sexual acts and relationships cannot realize the constitutive value or values of marriage—if marriage truly is, as Bradley and I contend, a bodily communion of persons consummated and actualized by sexual acts which are reproductive in type.
On Macedo's view and on mine, marriage is an important value which society and government have an obligation to help make available to people and which the government should not deny to people who are capable of fulfilling its requirements. What follows from this, in my view, is society's obligation to "get it right," that is, to embody in its law and policy a morally sound conception of marriage. This obligation seems to me especially stringent in view of the fact that whatever understanding of marriage is embodied in law and public policy will profoundly shape the public's understanding of the nature and value of marriage, and, thus, affect people's capacities to live out true marriages and participate in their value. This is an area in which moral neutrality strikes me as not only undesirable, but unattainable. The conflict of comprehensive views is unavoidable.
(Robert P. George, "Public Reason and Political Conflict: Abortion and Homosexuality," The Yale Law Journal 106 [June 1997]: 2475-504, at 2497, 2501 [italics in original; footnotes omitted])
Keith Burgess-Jackson, J.D., Ph.D. 