Public Affairs Quarterly, Volume 22, Number 1, January 2008 pp.43-61
Is the State Endorsement of Any Marriage Justifiable?
Same-Sex Marriage, Civil Unions, and the Marriage Privatization Model By Lawrence G. Torcello I. Introduction
The issue of same-sex marriage is one of the most controversial and politically polarizing matters of American public policy. A great deal of literature has been generated and the issue is never far from the public eye. From political commentators to comedy talk-show hosts the issue of same-sex marriage is a loaded topic. At the 2006 “Value Voter’s Summit” sponsored by the evangelically grounded “Family Research Council,” mainstream and marginal conservative politicians alike used the issue of same-sex marriage as a rallying cry to their constituents. Republican Congresswoman Marilyn Musgrave of Colorado went so far as to claim that of all the issues currently facing the American public, the issue of same-sex marriage is the most pressing.1
Despite all of this attention, or maybe because of it, the strident hostility that many exhibit against the idea of same-sex marriage seems to far outstrip what is warranted by publicly identifiable reasons alone, as arguments against same-sex marriage tend to drift toward the private sphere of comprehensive values rather than public reason. The need is therefore clear, from a Rawlsian perspective, for an emphasis on public reason regarding debate over legislation on the topic of same-sex marriage.
Ronald Dworkin, though himself an advocate of same-sex marriage, has described in the September 21, 2006 issue of “The New York Review of Books” the argument against same-sex marriage which he believes to have the most merit.
The only genuine argument against gay marriage…put most sympathetically, begins with the premise that the institution of marriage is…a unique and immensely valuable cultural resource. Its meaning and hence its value have developed over centuries and the assumption that marriage is the union of a man and a woman is so embedded in our common understanding that it would become a different institution were that assumption now challenged and lost. Just as we might struggle to maintain the meaning and value of any other great natural or artistic resource, so we should struggle to retain this uniquely valuable cultural resource.2 In his article, Dworkin concludes that this argument fails because from the fact that marriage is an important cultural institution it does not follow that the institute of marriage is non-malleable.
In this article I wish to argue in contrast to Dworkin’s estimation, that there is indeed a stronger position against same-sex marriage than the one he illustrates. In what follows I will argue for what I call the Marriage Privatization Model. Under this model the state endorsement of any marriage is inappropriate; therefore, the most genuine argument against same-sex marriage condemns the state endorsement of marriage globally. Resultantly I will show, from a Rawlsian perspective grounded in public reason, that state authority must be confined to exclusively endorse civil unions for both heterosexual and homosexual couples seeking the legal and economic benefits of partnership currently associated with marriage. My claim then is that the only sustainable argument opposing same-sex marriage takes the form of an argument to privatize marriage itself.
The argument presented here as the Marriage Privatization Model (what I will refer to as MPM for brevity) will be unsatisfying to many conservatives who would like to see same-sex marriage banned for substantive philosophical and religious reasons,3 and perhaps also unsatisfying for some of those on the left who would defend same-sex marriage by arguing to expand the state endorsed definition of marriage on egalitarian grounds.4 As I will demonstrate here, the model I am proposing is the only position sustainable if committed to the Rawlsian doctrine of public reason, and I will argue in this article that there are compelling reasons as to why we ought to commit ourselves to public reason in contentious political debates such as the one raging over same-sex marriage.5
II. Pluralism, Public Reason, and Same-Sex Marriages
The idea that there is a pressing need to approach contentious social issues from the perspective of public reason is arrived at as soon as one seriously contemplates the reality of moral pluralism. Moral pluralism in the sense used here and by Rawls is discernible through the realization that in a liberal society marked by the free exercise of human conscience, a diversity of values and ethical doctrines is to be expected. Such diversity is a permanent feature of society given the limits of human rationality. These limits include but are not limited to what Rawls’ conceptualizes as the “Burdens of Judgment.”6 These burdens might best be understood as consisting of the normal hazards a reflective person must confront in the course of any political or moral speculation.
Evidence is often sketchy, conflicting, or otherwise insufficient to bestow certitude on our judgments. In the course of our interactions with one another we may place emphasis on different pieces of evidence or interpret data in conflicting ways. Many issues of contention are sufficiently complicated as to be indeterminate beyond subjective interpretations of data. Such interpretations themselves are biased in an irreducible way upon our diverse life experiences as a whole. Disagreements about normative considerations are common and unassailable from the limited perspective of subjective rationality. Additionally, the need for social identity necessitates that any moral or political institution must stipulate a boundary to the values it can coherently endorse. In the wake of these considerations, hard ethical dilemmas confronting a society give up no easy solutions.
The burdens of judgment framed by Rawls can be recognized at least as far back as the modes of perplexity offered by ancient pyrrhonists. Just as those modes can be buttressed by “Agrippa’s Trilemma,” so can Rawls’ burdens of judgment. If one is to present a moral claim it is without force until one provides a justification for the proposition. Each justification must itself be justified and so an infinite regress ensues. One may attempt to interrupt such a regress by asserting a belief dogmatically, but then, the third prong of the trilemma asserts itself as any claims deduced from an unjustified belief must collapse into the form of a circular argument. Indeed the writings of Alasdair MacIntyre7 provide a contemporary example of this type of argument in support of moral pluralism.
Such arguments lead to the conclusion that moral pluralism is a permanent feature of society. Consequently, if we are to avoid the slippery slope from moral pluralism to moral relativism, then we must stake, as a society, a fair procedure for deliberating about contentious political and social controversies when they arise. Rawls’ conception of public reason provides the model for just such a procedure. The endorsement of public reason is an outcome of recognizing that a morally pluralistic society is made up of innumerable comprehensive doctrines. Comprehensive doctrines as understood here and in Rawls are marked by a rationally coherent (if not necessarily true) understanding of the world, one’s place in it, and the values one is to hold in relation to the world. Comprehensive doctrines may be religious or secular.
In a diverse society marked by a variety of comprehensive doctrines some of those doctrines will be reasonable. Reason as used here is not meant to be synonymous with rational. A reasonable comprehensive doctrine will be rational in that it will be coherent and more or less consistent over time, but a comprehensive doctrine that recognizes the burdens of judgment at play in its selection of concepts and values can be understood as reasonable. Reasonable comprehensive doctrines tend to evolve slowly over time “in the light of what, from its point of view, it sees as good and sufficient reasons.”8 As Rawls argues, a reasonable person is one that recognizes and is willing to shoulder the consequences of those burdens of judgment outlined earlier. Therefore, reasonable persons who adhere to reasonable comprehensive doctrines recognize a limit as to what can be justified to others who adhere to different reasonable comprehensive doctrines. This is not to imply that such individuals will be happy about these limits, but intellectual honesty forces one to admit certain limits to what can be reasonably agreed to across incommensurable comprehensive doctrines.
In a society marked by reasonable pluralism, such as is the case in the United States, the idea of public reason emerges as the best means to negotiate ethical and social dilemmas such as same sex marriage. The notion of public reason dictates that when confronted with contentious social issues concerning the rights of free and equal citizens, then those issues must be addressed in the public forum in terms that all reasonable people can be expected to understand if not endorse. This means that in public debate over issues like same-sex marriage one must refrain from conceptualizing the problem in terms of comprehensive values religious or otherwise. One may provisionally acknowledge one’s comprehensive commitments according to the notion of public reason endorsed here and by Rawls, but in a liberal society marked by moral pluralism, comprehensive values cannot, and ought not to be, the source of legislative decision making.
III. Public Arguments and Neutrality
Considering the argument for public reason presented above, there are some types of arguments regarding the issue of same-sex marriage that should be dismissed at the public level right away. Any argument that endorses a religious view should hold no currency in terms of public policy in a liberal democracy.9 Similarly, any argument that purports to make a claim from the supposed naturalness or unnaturalness of homosexuality should be understood as outside the realm of public reason.10 To claim that something is natural or unnatural is vague, and when such claims are explored, they inevitably steer one toward a particular comprehensive doctrine from which naturalness or unnaturalness can be judged.11 This position necessarily renders the question of nature relative to a particular comprehensive tradition, and thus should be seen as outside the boundaries of public reason.12 It is argued here that there are three species of arguments that are prima facie candidates for public arguments, these are: (1) Arguments that appeal to state rights regarding controversial matters of legislation. (2) Arguments that seek neutrality through a compromise on controversial matters of legislation. (3) Arguments regarding the equal protection of rights on controversial matters of legislation. The MPM mentioned above falls into the third category. Before exploring the MPM it is necessary to explore other possibilities among these three categories in order to rule them out.
1. Appeals to State Rights Regarding Same-Sex Marriage
Perhaps the most obvious form of public argument appropriate regarding same-sex marriage involves an appeal to states’ rights to decide this matter through their own legislation. This is the current model by which the issue of same-sex marriage is being handled in the United States. The argument in favor of this method asserts that because this issue is so divisive, the government should resist making a conclusive judgment legally applicable to the entire nation. Put another way one might say that since the government is not very good at making moral decisions it ought not to attempt them. Instead, the issue should be tested one state at a time through battles of state legislation. This is the form of public argument historically used by Douglas in his debates with Lincoln over slavery. This political argument has the advantage that it allows debate to flourish and play itself out openly in the public forum. This position also respects the autonomy of individual states and therefore reflects on a larger scale the emphasis that in a pluralistic society individual communities should be given the right to develop and adhere to their own comprehensive doctrines as much as possible.
However, there are serious downfalls to this position. One of the characteristics of this arrangement is that it simply moves the essential issue aside in the process of deliberation. The essential features of the political dilemma over same-sex marriage do not really change from the state to federal level. Whether one talks about a state or a larger federal political body made up of diverse states, the need to make a decision that avoids emphasizing any one comprehensive doctrine over and above others still stands. There is no reason to assume that states are meaningfully less diverse than larger, more inclusive governments.
So, even when deferring the process of public deliberation to the state level, the demands of public reason remain. By letting the issue play itself out from state to state, nothing can be gained politically, even while time is allowed to lapse as the issue is considered. That is, the essential question does not change as states deliberate, and it remains the case that whenever society as a whole considers the public banning of any activity, what needs to be asked is whether such a measure will deny some otherwise free and equal citizen a right of which other free and equal citizens have the benefit.
It does not appear that a more just situation is created if some states are allowed to endorse same-sex marriage while others maintain a ban on it and still others endorse civil unions. What is clear is that a more confused legal situation is created. At least one legal custody battle is currently being waged as a result of discrepancies between the laws of Vermont and Virginia regarding same-sex couples.13 It can safely be predicted that similar legal battles will increase in number as states proceed to create their own rulings on issues of same-sex marriage and civil unions. Since this issue is one that seems to go to the very heart of basic, democratic freedom, it is capricious to allow it to be decided on a state-by-state basis; new dilemmas are in fact created by such caprice. Nevertheless, even if we still grant that this issue should be decided on a state-by-state basis, the question of how any particular state should solve the matter remains. So how is this issue to be resolved either at the state or federal level in a way that meets the constraints of public reason?
2. Public Arguments that Seek Neutrality Through a Compromise
It has become a cliché that compromise is sometimes necessary for political progress. A compromise position that many are willing to endorse on this issue is that of Civil Unions. Currently civil unions are seen by many as a sort of compromise where marriage is protected as an institution, but public benefits are conceded to same-sex partners. One reason that civil unions are controversial is that such unions are not necessarily invested with the same legal rights that are conferred to married heterosexual couples. This is obviously one reason for which many are critical of civil unions, but there are other good reasons to be skeptical of the value of civil unions.
An arrangement whereby one segment of society is allowed to enter into a marriage contract while another segment is banned from the marriage contract but allowed to enter into a civil union, providing them similar rights under a different name, is puzzling. This sort of distinction serves to create a society where a social stigma against homosexuality gets institutionalized under the guise of “separate but equal.” There is a long history in the United States at to why this type of thinking is un-just and dangerous. Justice is never served by separating and labeling minority groups in an effort to compromise with a majority.
There are other possibilities regarding compromise on this issue,14 but it is not necessary to examine each individually, because beyond specific problems with civil-unions there are serious problems with the notion of compromise itself. As recognized by Rawls,15 compromise positions are just as likely to create instability over the long run as they are likely to create stability in the short term. Indeed, compromise positions often become sources of controversy in and of themselves, as parties vie with one another to get the best compromised vantage point. One reason compromise is inherently unstable is that among the different parties involved in a compromise, the tendency will be for one party to force its will on the other, should it ever find itself with a position of greater power.
Often, the parties involved in compromise are willing to pursue their interests at the other’s expense and will not hesitate to exploit circumstances in their favor should conditions change. Historical examples abound, one need only think of broken treaties with Native Americans, or of the 1938 Munich compromise, which let Adolph Hitler into Southern Czechoslovakia with a position of tactical advantage.16 It is more likely that a compromise on same-sex marriage will leave both sides of the debate unsatisfied and unwilling to settle with the accommodation provided for. Indeed the fact that the debate over same-sex marriage has not cooled in the advent of civil unions seems to bare this out.
3. Public Arguments that Seek an Egalitarian Expansion of Marital Rights
As mentioned previously, another form of publicly reasoned argument seeks to expand marital rights in an egalitarian fashion. This usually involves an appeal to civil liberties and basic legal rights. The MPM fits into this category, but it is not the only possibility that fits this category. Before examining the MPM fully it is necessary to investigate the argument that straightforwardly proposes an expanded definition of marriage to include same-sex couples. It is crucial that the implications of this argument be understood in order to fully recognize the ramifications of the MPM.
This position argues that since in other regards homosexuals are equal members of society on par with heterosexuals, they must be given the same rights afforded to heterosexuals in the domain of marriage. One might, as suggested above, argue that when contemplating the public ban of any practice, the question to be asked is: will any citizen who is otherwise considered a free and equal citizen have rights removed that are afforded to other free and equal citizens? Considering this question, it seems clear that a ban on same-sex marriage removes the right of marriage from certain citizens (viz., homosexuals wishing to enjoy a same-sex marriage). Call this the civil liberties claim regarding same-sex marriage.
Some may counter that homosexuals are not banned from marriage per se, but only from marriage with members of their same sex. While this is technically true, it is a bizarre argument, as odd as arguments that would claim that only members of the same race should be married,17 or that only marriages that are properly arranged by a couple’s family should be permitted. All of these positions seem to rest on a certain definition of marriage, which is indefensible without appealing to a comprehensive doctrine or tradition.18 Therefore, the argument goes that if any free citizen is to be allowed a right to marry in line with their freedom of conscience, then every free citizen must be allowed to marry in line with their freedom of conscience. This civil liberties appeal is clearly a political argument evoking the need for equal consideration among free and equal citizens in a society marked by comprehensive pluralism.
The way to combat a civil liberties appeal is to show that if the liberty in question were permitted, it would harm others or circumvent their freedom. A common argument of this form suggests that same-sex marriage harms others by denigrating the institute of heterosexual marriage.19 This is a belief that has fueled support of the Federal Marriage Amendment supported by many conservative politicians including President George W. Bush. This argument is unsupported, or circular, in that it relies on a comprehensive notion that already condemns same-sex marriage. The only way to argue that allowing homosexuals to marry will denigrate marriage itself is from a position that already views same-sex marriage as morally wrong in a comprehensive way, and thus such a view falls outside the legitimate scope of public reason.
Another argument might be that if same-sex couples are allowed to marry, then many will attempt to adopt children together. This position goes on to assert that children raised by same-sex couples will be harmed, if not by advances of uncontrolled sexuality by their adoptive parents, then by the mere exposure to them, as psychologically or morally damaged people. The simple response to this argument is that it actually concerns separate issues. The issue of marriage and the issue of adoption are separate in terms of heterosexual marriage as well as in terms of same-sex marriage. It can easily be argued that there are many heterosexual couples who are allowed to marry and who should not biologically reproduce or adopt.20 Unbiased and reliable evidence needs to be shown that homosexuals are any more dangerous to children than heterosexuals are; there is no evidence linking parental responsibility to sexual preference. It is not difficult to argue that there are many children now being raised by abusive heterosexual parents that would be better off were they being raised by nurturing homosexual parents.21
Some might assert that same-sex couples should not raise children because exposure to their lifestyle might promote homosexuality in their children. This again, is on its face a question begging argument, which only has merit if one already assumes that there is something morally wrong with homosexuality. Still, one might conceivably argue, without assuming that there is something immoral about homosexuality, that if same-sex parents did indeed encourage the trait of homosexuality in their children, then such a circumstance may harm the children by removing the possibility from them of having their own biological children in the future.22 Suffice it to say that one may counter this claim simply by pointing out the fact that reproductive methods and technologies may be as helpful for homosexual couples as they are for heterosexual couples that are infertile or otherwise have trouble conceiving. More importantly, this type of argument oversimplifies the complicated issue of whether or not homosexuality is predominantly a biological trait, an environmentally induced trait, or a choice.23 Ignoring this particular controversy for now, it is essential to note that the cause of homosexuality is irrelevant in terms of the moral status of homosexuality. Regardless of what causes the trait, any moral condemnation of it is adequately sustainable only by virtue of a comprehensive doctrine. Therefore according to this argument, in concurrence with the demands of public reason, same-sex marriages must be publicly permissible.
4. The Marriage Privatization Model
From the above analyses, it is revealed that once comprehensive doctrines are bracketed away there exist three categories of political arguments that can be raised from the groundwork of public reason. One option is to work out some form of compromise at the public level. In our examples of political arguments, the compromise option is represented by the proposal for civil unions as an acceptable accommodation to the same-sex minority while maintaining marriage rights for the heterosexual majority. It has been argued here that this compromise is unsatisfactory. Aside from problems particular to it, primarily, it is unacceptable precisely because it is a compromise position. Compromise positions, as previously stated, tend to be unstable and unjust in that they inevitably favor a particular party.
Consequently, the political need for public reason in a just liberal democracy boils down to a choice between deliberation at the state or the federal level. As already argued, state-by-state deliberation does no more than move the issue a step back in the process of debate. Whether or not the issue is played out at the state level or at the federal level, the original question of how the issue should be resolved remains. Additionally, the result of having divergent laws in place from state to state on this topic seems unjustly capricious. For these reasons, in the case of same-sex marriage the debate should be held at the federal level. It seems from the above analysis, that from the perspective of public reason, the permissive solution suggested by the appeal to civil liberties should be endorsed.24 However, given the constraints of public reason, this too presents problems unexpected and unappreciated by many advocates of equal protection on the left.
According to the preceding analysis, it may seem justifiable, in the absence of reasonable public arguments against same-sex marriage, that such marriages must be recognized by the state. Nevertheless, it is the case that in endorsing any concept of marriage open to both men and women, the state is confirming the public justification of a particular definition of marriage, namely the inclusive definition of marriage that allows homosexuals as well as heterosexuals to engage in marital unions.25 This amounts to a public endorsement of that inclusive definition of marriage which, from the perspective of public reason, is no more appropriate than the restrictive definition of marriage between a man and woman.
Taking public reason seriously leads to the idea that the legalization of same-sex marriage may be just as unbalanced as its ban. This is unavoidable, since we cannot genuinely imagine any definition of marriage that does not in some sense call upon a comprehensive notion of the meaning of marriage. Without exception, comprehensive doctrines are to be bracketed out of our public decisions according to the dictates of public reason.
Having already dismissed the value of a compromise position as unstable, what is a just society to do in the light of public reason? The MPM approach to same-sex marriage most rigorously conforms to the dictates of a Rawlsian political approach to liberalism given the reality of moral pluralism. Contra Dworkin, it is the argument that does in fact provide the most genuine political bases for banning the public endorsement of same-sex marriage and it is fully in line with the constraints of public reason.
According to the MPM any comprehensive tradition may endorse a particular understanding of marriage. For instance, a Roman Catholic tradition may wish to limit marriage to a covenant between a man and a woman. This is completely consistent within the dictates of that tradition. Alternatively, a particular Episcopalian diocese may find it acceptable to allow same-sex couples to unite in marriage. This is an issue that must be debated within the domain of the respective comprehensive doctrine involved26. The principle of liberal legitimacy, which recognizes the freedom of reasonable comprehensive doctrines, seems to dictate that the state must refrain from endorsing or condemning either practice insofar as members of each tradition are exercising their collective freedom.
It is impossible to define marriage outside of the values belonging to any comprehensive doctrine. Therefore, as far as the realm of public reason is concerned, all that can properly be justified by the state in terms of public reason is a civil union in both same-sex and heterosexual cases. Civil-unions that guarantee equal rights to heterosexual couples and homosexual couples alike are most appropriate. To define marriage is always to define it comprehensively. This implies a public advocacy of certain values against alternative values. Simply put, legal marriage is intrinsically linked to comprehensive doctrines and is therefore by definition, outside the realm of true public reason. A consistent use of public reason can only endorse a civil union, whether of a hetero- or homosexual couple, with its attendant rights and benefits.
Taking Rawls’ emphasis on public reason seriously means that as far as the state is concerned, the only thing that should be of issue is the conferring of certain public benefits upon a couple made up of otherwise free and equal citizens. So the only union that a state should endorse in the public domain of reason is a civil union bestowing public rights and benefits. To endorse any other form of marriage would mean that the state endorses a certain definition of marriage consistent with a particular comprehensive doctrine, which is already unacceptable from the Rawlsian perspective on public reason.
Having made this argument, however, it is imperative to add that in addition to a civil union, the parties involved should be able to define their bond in relation to a particular comprehensive doctrine in the private sphere as they see fit. The latter comprehensive arrangement should remain a strictly private, non-legal matter. Each individual couple, hetero- or homosexual, is free to enter into a marriage ceremony for the sake of the comprehensive tradition to which they adhere.
Otherwise, to prevent homosexuals from being married would mean that the state prescribes a certain comprehensive doctrine that defines marriage as acceptable only between a man and a woman, while at the same time effectively negating any doctrine that would hold marriage open to couples of all persuasions. This does not mean that any Catholic priest or any other representative of a comprehensive tradition would ever be obligated to wed a particular couple, unless he saw it as appropriate from within the dictates of that tradition. Debates over the appropriateness of such an act are doctrinal debates within any given tradition and therefore fall well outside the realm of public reason. The endorsement of such civil unions across society is the best way to insure that no comprehensive doctrine religious or otherwise is given preference at the public level and that all citizens share civic benefits compatible with benefits equally shared by other recognized citizens in a free society.
The constraints of reason in terms of the public sphere are severe. However, in the midst of moral pluralism, a just society that would seek to treat all citizens as free and equal and to uphold a system of rights across society that transcends any private notion of the good, must seek to determine its legislation in terms of public reason. It follows that if the sanctity of marriage is to be safeguarded according to the belief of some citizens, even the majority, then it can only be so protected at the level of a private institution without encroaching on the rights of others. If this is the case, then society as a whole must abandon marriage entirely to the private sphere and endorse civil-unions exclusively and equally for heterosexual and homosexual couples alike.
V. Possible Objections and Concerns
In response to the claim that the MPM is the position which most rigorously conforms to the dictates of public reason, one may ask why it is not the position that Rawls himself endorses. In a passage contained in “The Idea of Public Reason Revisited,” Rawls actually mentions the issue of same-sex marriage.
In a democratic regime the government’s legitimate interest is that public law and policy should support and regulate in an ordered way, the institutions needed to reproduce political society over time. These include family (in a form that is just), arrangements for rearing and educating children, and institutions of public health generally[…]Thus appeals to monogamy as such or against same-sex marriages, as within the government’s legitimate interest in the family, would reflect religious or comprehensive moral doctrines. Accordingly, that interest would appear improperly specified. Of course, there may be other political values in the light of which such a specification would pass muster: for example, if monogamy were necessary for the equality of women, or same-sex marriages destructive to the raising and educating of children.27 Since there is no evidence that same-sex marriage has negative impacts on the raising and education of children, it appears that Rawls must endorse the egalitarian expansion of marital rights. Some might argue, while referencing the above passage, that marriage between a man and a woman meets Rawls’ concern for the continuation of society because it involves a procreative aspect that same-sex marriage does not. This assumption is unwarranted. Rawls does not mention heterosexual marriage at all in the above passage and only refers to the need for a just conception of family and provisions for raising and educating children, neither of which are dependent on the ability to procreate biologically.
Still, even if Rawls were to endorse the egalitarian expansion of marital rights, it would not change the fact that a definition that endorses marriage between homosexual couples is no less comprehensive a definition of marriage than one that excludes homosexual couples. Pointing out that Rawls never argued for a conception such as the MPM is no telling objection. The fact that Rawls mentions same-sex marriage in passing does not imply that he had any considered position on the issue from within the framework of his philosophical project taken as a whole. To the contrary, Rawls specifically avoided any conclusions in his philosophical writings as to how civic debates involving public reason should play out. Rawls’ concern in such matters is primarily with discovering a just procedure for addressing controversies of public legislation that may arise in a pluralistic liberal society. He does not develop applied opinions on any such matters, in a way that could be understood as a final pronouncement inferred from his philosophy as a whole.
Nevertheless, the passage quoted above is suggestive of another anticipated objection to the MPM that manifests itself in the form of a slippery slope. Some may argue that if marriage is relegated to the realm of a private institution and left to be defined in that sphere, then nothing will prevent individuals from defining marriage in any form they wish. In other words, some may ask, what limits, if any, should be placed on what one can legitimately define as a marriage in the private sphere. In addition to same-sex marriages, some will ask whether or not polygamous, incestuous, adult-child, or even human-animal marriages should be permissible in private.
The easy response to this objection is that each of these cases is unique and discrete. These concerns do not have anything to do with the issue at hand regarding same-sex marriage. There may be compelling reasons to ban any or all of these combinations, consistent with the dictates of public reason, which are not appropriate in the case of same-sex marriage. For instance, in the case of adult-child marriage, it should be argued that even in the private sphere, marriage arrangements can only be reasonably entered into if both parties are fully capable of giving consent in a way that a child is not capable of, by virtue of limited life experience as well as limited intellectual capacities. A similar argument can be mounted regarding the human-animal proposal. To prohibit such activities in the private sphere would clearly be less about encroaching on individual freedoms and more persuasively about protecting the safety of minors and nonhuman animals.
As for polygamous and incestuous arrangements, other, less obviously compelling reasons may have to be presented. Nonetheless, since such cases are distinct from the issue of same-sex marriage, sustained consideration of them reaches beyond the scope of this paper. As in the case of same-sex marriage, any arguments against these cases at the legislative level would have to be restricted to those in the realm of public reason. Suffice it to say that if compelling public reasons could not be discovered to justify the legal prohibition of such behaviors, then, as a corollary to the arguments presented here, it would seem that civil unions must extend to protect the rights of polygamous as well as incestuous couples as free and equal citizens, with all of the public entitlements provided to other free and equal citizens.
Others will argue that the egalitarian expansion of same-sex marriage can be fully endorsed from a Rawlsian framework as part of an overlapping consensus.28 Despite the ready existence of this argument, it is unlikely that groups with incommensurable comprehensive doctrines on this issue could ever come to an overlapping consensus on it. Their religious and metaphysical differences simply represent too great a gap for them to overcome. This is true regarding innumerable contentious social issues that may arise at any given time in a pluralistic society.
Moreover, in attempting to make use of the Rawlsian concept of overlapping consensus in this way, one misunderstands the fundamental nature and purpose of Rawls’ form of Political Liberalism, and it is well worth sticking with Rawls on this point. Rawls recognizes that overlapping consensus is not an option for anything other than reasonable, free-standing political conceptions, at the foundational level of society. Indeed, the plurality of comprehensive doctrines across society as a whole provides the Rawlsian impetus for an overlapping consensus at the political level in the first place.
To be clear: the idea of an overlapping consensus is advocated by Rawls in the belief that competing comprehensive doctrines, so long as they are reasonable, provide their own substantive rationale in support of the basic principles of a just society marked by moral pluralism. On this view, liberal principles such as toleration and equal opportunity can be rooted in a comprehensive groundwork consistent with the conclusions of noncomprehensive public reason.29 This is the expectation even where there is substantial disagreement on individual issues of moral and metaphysical concern. Indeed, the importance of coming to an overlapping consensus on political principles for a just society is made plain when confronted with the need for toleration and political fairness in the context of strident moral pluralism.
Overlapping consensus is needed at the political level in order to maintain civility for the very reason that overlapping consensus cannot be achieved between comprehensive doctrines on more specific social and ethical issues. Therefore, to argue for the possibility of an overlapping consensus regarding an issue like same-sex marriage necessarily entails a misapplication of the concept of overlapping consensus. In reality, if an overlapping consensus were to be reached on same-sex marriage, it would represent a substantive triumph over moral pluralism itself. However, this article has taken as its starting point the fact that moral pluralism is a permanent feature of society, for reasons best articulated by Rawls and requiring his historical and epistemological account for full elaboration.30
Finally, some will claim that in limiting the conception of marriage to the private sphere while endorsing civil unions at the public level, one is simply substituting terms in the debate. The same difficulties applying to the state endorsement of marriage will also apply to the state endorsement of civil unions, they will argue. This is perhaps the strongest argument against the MPM. However, there are several reasons why even this position presents no serious threat to the MPM.
The concept of marriage has traditional cultural and religious meanings that the concept of a civil union does not; this is the reason why the issue is being argued in the first place. In contrast, the concept of a civil union is prima facie a social contract, and as such uniquely suited to be used in a purely legalistic way. This is why the concept has already been embraced as a viable alternative in places that currently allow same-sex civil unions while banning same-sex marriage. It bears repeating: the arguments against same-sex marriage trace to metaphysical and religious comprehensive doctrines. It is inappropriate and unjustifiable to hoist those same meanings upon the more transparently social-contractarian idea of civil unions to be endorsed at the level of wider society. This is especially true, if marriage is preserved in the private sphere. It is unwarranted to assume that civil-unions will necessarily carry, or possibly could carry all the same complications that the definition of marriage, with its traditional underpinnings and implications, currently does.
If what is advocated for in this article is correct then a far reaching and surprising conclusion must be drawn. The only sustainable argument against same-sex marriage that can be endorsed from a position of public reason turns out to be a wedge by which the entire civic institute of legal state-sanctioned marriage is to be overthrown and no longer seen as publicly justifiable. In its place, a politically liberal position demands an egalitarian endorsement of civil-unions that avoids stigmatizing any group under the auspices of “separate but equal.” If the sanctity of marriage is to be protected from same-sex marriage as the rhetoric of some would demand, then it must be protected in the only realm from which it can be meaningfully held in sanctity; that of the private realm. In the public sphere of a liberal democratic society it is the equality of liberty which must be guarded as sacrosanct from the civic point of view.
Notes A version of this paper was given at the Rochester Institute of Technology, and the comments and concerns raised there proved invaluable to the further development of my thesis. I must thank Katie Terezakis for conversations on this topic that were especially beneficial for the development of ideas in this paper.
1 Faith Bremner “Gannett News Service” April, (2006)
2 Dworkin (2006), pp.24-30
3 For a sampling of arguments relevant to religious considerations on this issue see Helminiak (1994).
4 For relevant literature see Buccola (2005), Schaff (2001/2004) Wedgwood (1999)
5 That an application of Rawlsian principles on this issue should lead to a sparse minimalist position like the one advocated in this paper may come as a surprise to many. Nevertheless, the conclusion is entirely consistent with the parameters and conditions for debate according to public reason outlined by Rawls in Political Liberalism (1993). Whether or not the form of minimalism outlined here should be the result of a consistent application of Rawlsian principles on other contentious issues is beyond the scope of this paper. I take up such controversial arguments in a forthcoming paper.
6 See Rawls (1993) pp. 55-56
7 See MacIntyre (1981)
8 See Rawls (1993) p. 59
9 From the perspective of Rawlsian political liberalism religious views may be introduced into public debates, but they must be accompanied by or easily converted to, public reasons open to all reasonable parties. It is the public reasons and not the religious ones that are relevant to the public debate. For this reason, overlapping consensus when it occurs between comprehensive doctrines must occur at the level of public reason and not metaphysical substance. For a discussion of how religious positions tend to infiltrate allegedly secular arguments regarding same-sex marriage see Andrew Koppleman (1997) For an exploration of how religiously rooted arguments tend to weave themselves into the fabric of secular society with specific reference to the issue of human organ sales see Torcello and Wear. (2000) For a defense of why arguments should not be dismissed from public discourse as a matter of course see Stephen Carter(1993).
10 See Levin, (1984) pp. 251-83.
11 Also see Levin (1996) pp. 31-48.
12 For a response to Levin see Corvino (2001) pp. 300-18; Murphy (1987) pp. 195-205. Laurence M. Thomas (1999), and for further relevant literature see Sullivan (1995).
13 The case involves a former lesbian couple that had been united in a civil union under Vermont’s law. The couple had a daughter together by means of artificial insemination. The couple split, and the Vermont family court ruled that the biological mother would have custody, while the “social” mother would have visitation rights. Subsequently the biological mother has moved to Virginia with child and declared herself to be heterosexual. Because Virginia does not recognize civil-unions the biological mother is the only mother recognized by the Virginia family court system and therefore does not have to allow visitations to her former partner while in that state. Consequently the “social” mother sought and received a ruling from the Vermont Supreme Court that upholds her right to visitation because the child was adopted under Vermont law. It is expected that this case will move to the Supreme Court where it will challenge the legality of the Defense of Marriage Act (1996) that currently supports the conclusion that Virginia does not have to recognize Vermont’s laws on this matter. http://www.wcax.com/Global/story.asp?S=5242839
14 For an example of a compromise proposal that has generated substantial reaction in the literature see Jordon (1995) and the critical reactions of Boonin (1999) and Beyer (2002) to Jordan’s argument.
15 See Rawls (1993) pp. 147-148
16 It may seem to some that such examples have little in common with the issue of same-sex marriage in modern America. The point, however, is that any compromise position is by nature unstable on consistent grounds.
17 See Boonin (1999) for an extended treatment of this reduction ad absurdum in the context of Jeff Jordan’s argument for a compromise position regarding the issue of same-sex marriage.
18 Not to mention that such arguments seem to ignore human psychology and apparently
endorse the institutionalization of dishonesty by encouraging homosexuals to enter
into heterosexual marriages while ignoring the anguish that such a situation can be
expected to create for the parties of such a coupling. For some relevant literature see Richard M. Isay,
(1998) pp. 424-32
19 For some relevant material discussing the nature of marriage with respect to same-sex marriage see Linda McLain (2006).
20 For an interesting argument regarding the issue of whether or not certain individuals
should be legally permitted to reproduce see Lafollette (1980) pp. 182-97.
21 For a sustained case study analysis of same-sex parenting that suggests no significant difference in well being for children raised by same-sex couples contrasted against those raised by heterosexual couples, see Benkov (1995).
22 I must thank David B. Hershenov for bringing the possibility of this argument to my attention.
23 For research suggesting that homosexuality may have a biological basis see LeVay (1993) pp. 120-22; Bailey, Pillard (1991) pp. 1089-96; Hamer, Hu, Magnuson, N. Hu, Pattatucci (1993) pp. 321-27; Poole, (1993) pp. 291-92
24 This position is endorsed by Schaff (2001) and Buccola (2005).
25 This has been observed by Jordon (1995) and is interpreted by conservatives as a reason for the state to refrain from endorsing same-sex marriage as a means of maintaining political neutrality. Schaff (2001) has argued such appeals to neutrality are little more than veiled attempts to deny same-sex couples equal rights. Schaff, by means of a reduction ad absurdum correctly points out that such appeal to neutrality can also be used to argue against the state recognition of heterosexual marriages. The argument presented in this article, far from dismissing this implication as an absurd consequence of the insistence for state-neutrality, claims this fact to be the cornerstone of the Marriage Privatization Model; insisting that state neutrality with all of its logical implications is the only appropriate solution to the problem of same-sex marriage. For a now classic study of how the definition of marriage has evolved in a variety of cultures see Edward Westermarck’s The History of Human Marriage originally published in 1903. For a brief discussion of societal beliefs regarding marriage in the context of a moderate moral skepticism see Bertrand Russell’s “On the Value of Skepticism” first published in 1928 in his Skeptical Essays. For a further investigation of marriage as a comprehensive doctrine see Torcello “forthcoming.”
26 An October 2006 story, the Boston globe reported that several Episcopalian clergy, from the Episcopal Diocese of Massachusetts, have proposed that the Diocese refrain from performing marriages altogether. The proposal has been driven by contention over the issue of same sex-marriage, but those in favor of the proposal cite a general concern over priests being used as agents of the state. Under the proposal, Episcopalian couples would be legally married under a justice of the peace, but could have a priest bless their marriage independently if they desire. Such a proposal is very much in the spirit of the Marriage Privatization Model being proposed more broadly in this article. http://www.boston.com/news/local/massachusetts/articles/2006/10/08/episcopal_diocese_may_quit_marriages/
27 See Rawls’ “The Idea of Public Reason Revisited” in Rawls (1999) p. 587
28 See Buccola (2005) Nicholas Buccola argues that Rawls’ notion of overlapping consensus can be appealed to in order to defend an expanded definition of marriage that includes same-sex couples.
29 The relevant issue is that the comprehensive doctrine be reasonable. Even though there may be a substantive overlap, what is important for legislation is that the overlap is consistent with the dictates of non-substantive reason.
30 For further elucidation on this point see “The Idea of an Overlapping Consensus” and “The Domain of the Political and Overlapping Consensus” in Rawls (1999) and from Torcello “forthcoming.”
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