In the controversial Marquette case, philosophy instructor Cheryl Abbate claimed that it is improper to say that same-sex marriage is controversial under John Rawls’s theory of justice. But in this 2012 paper published in the British Journal of American Legal Studies, Matthew O’Brien makes precisely that argument. The abstract:
John Rawls’s political liberalism and its ideal of public reason are tremendously influential in contemporary political philosophy and in constitutional law as well. Many liberals are Rawlsians of one stripe or another. This is problematic, because most liberals also support the redefinition of civil marriage to include same-sex unions, and as I show, Rawls’s political liberalism actually prohibits same-sex marriage. Recently in Perry v. Schwarzenegger, however, California’s northern federal district court reinterpreted the traditional rational basis review in terms of liberal neutrality akin to Rawls’s ideal of “public reason,” and overturned Proposition 8 and established same-sex marriage. (This reinterpretation was amplified in the 9th Circuit Court’s decision upholding the district court on appeal in Perry v. Brown). But on its own grounds Perry should have drawn the opposite conclusion. This is because all the available arguments for recognizing same-sex unions as civil marriages stem from controversial comprehensive doctrines about the good, and this violates the ideal of public reason; yet there remains a publicly reasonable argument for traditional marriage, which I sketch here. In the course of my argument I develop Rawls’s politically liberal account of the family and defend it against objections, discussing its implications for political theory and constitutional law.
From the paper itself:
[Judges] Walker and Reinhardt’s arguments against moral judgment as a legitimate state interest are novel developments in constitutional law. Nevertheless, the thought that moral approval and disapproval as such are somehow an illegitimate basis for state action is a very familiar one. The thought arises not from federal case law, but liberal political theory, where the thought is expressed in more sophisticated fashion as the political principle of liberal neutrality. However immediate or derivative the influence of liberal political theory upon Walker and Reinhardt’s thinking, their decisions in Perry effectively reinterpret the traditional judicial standard of rational basis review in terms of a liberal neutrality principle. I point this out not in order to raise a question about the legitimacy of informing constitutional interpretation with philosophical considerations about justice—this may be inevitable anyway—but in order to show the real impact of academic theorizing about law and justice upon judicial practice, especially in the contentious public debate about same-sex marriage. What I do wish to question is whether liberal neutrality as a constitutional principle, which seems so attractive to many people, has the implications for the marriage debate that philosophers, constitutional theorists, and the 9th Circuit judges think that it does.
Participants in the marriage debate sometimes say that traditionalists and revisionists agree upon the importance of marriage, but differ over who should have access to it. Such “agreement” is specious and merely verbal, however. It conceals the depth of the conflict and the significance of what is at stake as the debate is engaged at present: if one side wins, then the other side necessarily loses. The winner-take-all terms in which this debate is posed are why it is so acrimonious. As Ellen Willis, a same-sex marriage advocate, puts it, “conferring the legitimacy of marriage on homosexual relations will introduce an implicit revolt against the institution into its very heart.” The traditionalists and the revisionists alike propose to enshrine in the law a deeply controversial facet of their incompatible “comprehensive doctrines,” to use John Rawls’s term, about the valuable forms of sexuality, their place in human flourishing, and the nature of moral equality.
There are of course religious conceptions of marriage that define marriage as an exclusively male-female union, but these conceptions are manifestly nonpublic from the perspective of political liberalism and ineligible as grounds for legislation. For these reasons philosophers, political theorists, and constitutional lawyers alike have concluded that Rawlsian political liberalism mandates same-sex marriage as a requirement of basic justice. The significance of this conclusion goes beyond mere academic issues debated among idle theoreticians. For as Stephen Macedo has observed, “The insistence on public reasonableness is at the core of liberal constitutionalism and helps explain the importance of the political power of the courts and of judicial review.” In the United States the legal recognition of same-sex unions as marriages has proceeded almost entirely through the action of state and federal courts or executive officials, without and often against considerable democratic majorities. These courts and officials have justified the introduction of same-sex marriage by appealing to moral ideals of fairness and equality, which they purport to have found implicit in state and federal constitutional provisions regarding equal protection and due process of law. These interpretations of such constitutional provisions have often been justified along Rawlsian lines, as Rawls himself urges: “in a constitutional regime with judicial review, public reason is the reason of its supreme court,” and “the supreme court is the branch of government that serves as the exemplar of public reason.” In this way and in others Rawlsian political liberalism, which dominates contemporary Anglophone political thought, has extended its influence to the actual practice of constitutional law by justifying an expansive moral reading of constitutional provisions. Legal practitioners have shown an increasing willingness to make the ideal of public reason judiciable, and the issue of same-sex marriage is a prime example of this tendency. Rawls himself remarked that the judiciary should be the exemplar of public reason; many American judges like Walker and Reinhardt seem primed to take his advice. Rawls’s followers, however, have failed to appreciate that although the standard natural law case against same-sex marriage violates public reason by appealing to comprehensive philosophical doctrines, so too do all the available arguments for same-sex marriage. All available justifications for same-sex marriage appeal to different varieties of comprehensive doctrines about, e.g., sexual liberation or personal autonomy. Nonetheless there remains a persuasive and publicly reasonable case for preserving marriage as a legal union between a man and a woman, which is what I propose to demonstrate here.
I’ve quoted long sections of this 50+ page paper, but if you want to read the actual argument, download the paper here. If you believe that no one has made a cogent argument against same-sex marriage without reference to religious beliefs, then read the paper to see how wrong you are.
O’Brien, its author, points out that so very much of this public debate has been premised on the groundless conviction that pro-SSM liberals are defending a philosophically neutral position. O’Brien:
Conservative and Marxist critics alike have long maintained that the original [Rawlsian] position is an elaborate sham whose real function is to disguise the bourgeois liberal assumptions of justice as fairness, which would never gain assent if Rawls argued for them openly.
This is exactly right, and what galls so many of us on the Right about these matters. As O’Brien rightly points out, almost all of those participating in this debate arrive at their positions from axiomatic beliefs in what is Good — foundational beliefs that are irreconcilable. One reason liberals hold the high ground is that they really do believe that their views are objectively and obviously true, and that those who do not agree are, ipso facto, filled with irrational animus.
(By the way, the reader who sent this to me says that the paper’s author, Matthew O’Brien, was a distinguished young professional philosopher who knew that publishing it would end his academic career. He now works in finance.)
The news today brought an example of a prominent liberal engaging in an “elaborate sham” to conceal his true motives and views on gay marriage:
Barack Obama misled Americans for his own political benefit when he claimed in the 2008 election to oppose same sex marriage for religious reasons, his former political strategist David Axelrod writes in a new book, Believer: My Forty Years in Politics.
“I’m just not very good at bullshi*ting,” Obama told Axelrod, after an event where he stated his opposition to same-sex marriage, according to the book.
Axelrod writes that he knew Obama was in favor of same-sex marriages during the first presidential campaign, even as Obama publicly said he only supported civil unions, not full marriages. Axelrod also admits to counseling Obama to conceal that position for political reasons. “Opposition to gay marriage was particularly strong in the black church, and as he ran for higher office, he grudgingly accepted the counsel of more pragmatic folks like me, and modified his position to support civil unions rather than marriage, which he would term a ‘sacred union,’ ” Axelrod writes.
The fix is always in with these folks. Always.