Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada

By Jason Pierceson | Go to book overview

3

Liberalism and Gay Politics:
Rights and Their Critics

MY ARGUMENT in this book isthat liberalism is an ideology capableof accommodating claims of lesbian and gay equality, particularly the claims associated with same-sex marriage, and that courts can be effective vehicles for promoting this equality. But liberalism is, and continues to be, under attack. Queer and critical theorists view liberalism as a mask for power and oppression of minorities, while communitarians, both left and right, see liberalism as a thin ideology, overly concerned with the individual at the expense of the needs of society. Increasingly, few commentators are willing to embrace liberalism. This is ironic, since courts traffic in the language of liberalism and rights. Many of these critical commentaries, then, are divorced from political and legal reality; while commentators disdain rights, judges continueto use and apply them. This chapter will explore these critiques and defend liberalism as an ideology that can be receptive to lesbian and gay rights and equality. Although this chapter ultimately deals with political philosophy, it is not a chapter of pure philosophical reasoning. Instead, I outline recent developments in liberal thought and the thought of liberalism's critics and discuss the historical development and the prominent strains of liberalism in the United States.1 Critics of liberalism score points when they offer a minimal caricature of liberalism; they paint liberalism in its thinnest and most unsubstantial form. Following David Greenstone, I argue that U.S. liberalism possesses multiple strains. These strains have waxed and waned over time, but they are fair game for political and legal discourse.

This and the following chapter will illustrate two points: (1) liberalism's utility, compared to other political ideologies, for the future success of lesbian and gay rights, and (2) the necessity to view liberalism as more than mere negative libertarianism. In this chapter, I outline some important aspects of liberalism for gay politics and assess critical and queer critiques of liberalism, followed by communitarian and traditionalist critiques.


LIBERALISM'S IMPORTANCE FOR GAY RIGHTS

Liberalism is an ideology that emphasizes the importance of the individual. In classical and medieval thought, the individual was not a primary focus of concern, only the good of the state or society. Born of the Enlightenment's emphasis on empiricism and opposition to social and political hierarchy, liberalism holds that all human beings are free and equal and their main purpose is to pursue their individual tastes and interests and not exclusively be concerned with the good of

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