Academic journal article Journal of Politics and Law

The Liberal Case against Same-Sex Marriage Prohibitions

Academic journal article Journal of Politics and Law

The Liberal Case against Same-Sex Marriage Prohibitions

Article excerpt

Abstract

Experience suggests that most legal philosophers and ethicists are not surprised to be told that liberal states cannot permissibly prohibit same-sex marriage (henceforth: SSM). It is somewhat less clear what the appropriate liberal strategy is, and should be, in defense of this thesis. Rather than defend SSM directly, I proceed indirectly by arguing that SSM prohibitions are indefensible on liberal grounds. First, I articulate a principle that has roots in constitutional law that I dub the "Rational Basis Principle," a principle intended to capture a constitutive commitment of liberalism: a commitment to liberty. The Rational Basis Principle condemns liberty-limiting legislation as indefensible unless that legislation bears a reasonably conceivable rational relationship to a legitimate state interest. I then argue that while SSM prohibitions limit liberty, they bear no reasonably conceivable rational relationship to anything that a liberal would regard as a legitimate state interest. Accordingly, same-sex marriage prohibitions are rightly dismissed as illiberal.

Keywords: liberalism, same-sex marriage, gay marriage, rational basis review, conceivability

1. Introduction

Experience suggests that most legal philosophers are not surprised to be told that liberal states cannot permissibly prohibit same-sex marriage (henceforth: SSM). It is less clear how the faithful liberal this thesis.

One way to defend SSM on liberal grounds is to invoke some right jealously guarded by liberals that requires the legal recognition of SSM-say, the right to marry simpliciter or the right to privacy or "to be let alone." But spelling out the relevant right claim is tricky business and even proponents of SSM do not necessarily agree about how that claim should be spelled out: proponents of SSM appeal variously to the right to marry somebody that one loves (Rauch, 2004), to fulfill a shared desire to make a familiar sort of legally binding mutual commitment (Wedgwood, 1999), and the right to marry whomever one wishes and have that marriage publicly recognized (Boonin, 1999). There is an embarrassment of riches here: why should liberals prefer to defend SSM by appeal to one such right rather than some other?

Perhaps the most obvious direct strategy to defend SSM is to make a straightforward appeal to a commitment to equality and contend that SSM prohibitions deny homosexual persons equal status. So understood, SSM prohibitions are problematic on liberal grounds for the same reason that racial and gender-based discrimination is: they are inconsistent with a liberal commitment to equality. However, this sort of defense of SSM-one that I am not unsympathetic with, as I endeavor to make clear below-is a false start without an antecedent account of what constitutes unacceptable discrimination in the first place. Some kinds of discrimination are legally and morally tolerable. A commitment to equal protection is arguably consistent with some kinds of unequal treatment so long as there is a legally and morally sufficient justification for it.

My reluctance to appeal to the above strategies signals only my uncertainty about them, not my hostility. I offer a different indirect argument that liberal states must recognize SSM. I propose an argument rooted American Constitutional law-that area of the law I am most familiar with-that implies that SSM prohibitions are indefensible on liberal grounds. In brief, I contend that SSM prohibitions do not survive a liberalized version of rational basis review and thus that SSM cannot be prohibited justly. Since liberal states must permit what they cannot justly prohibit and since permitting SSM requires its recognition, liberal states must therefore recognize SSM.

2. Why Liberals (Might) Want to Recognize SSM

In response to the question "What does it mean for the government to treat its citizens as equals?" Ronald Dworkin famously answers that "government must be neutral on what might be called the questions of the good life" (Dworkin, 1995). …

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