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 samesex 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.
1
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
2
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
3
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
4
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
5
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
6
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 samesex 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
7
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?
8
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 civilunions 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
9
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
10
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.
11
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
12
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 samesex 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
13
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.
14
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.
15
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.
16
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
17
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 samesex 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
18
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
19
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.
20
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
21
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.
22
Conclusion
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 samesex 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.
Faith Bremner “Gannett News Service” April, (2006)
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
1
2
23
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
24
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_marria
ges/
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.”
Bibliography
Bailey J.M., Pillard R.C. “A Genetic Study of Male Sexual Orientation” Archives of General Psychiatry
(1991) 48 1089-96
Benkov Laura, Reinventing the Family:Lesbian and Gay Parents, (Three Rivers Press) 1995
Beyer Jason A. “Public Dilemmas and Gay Marriage: Contra Jordon” Journal of Social Philosophy (2002)
33:1
Boonin David, “Same-Sex Marriage and the Argument from Public Disagreement” Journal of Social
Philosophy ( Fall 1999) 251-59
Buccola Nicholas, “Finding Room for Same-Sex Marriage: Toward a More Inclusive understanding of a
Cultural Institution” Journal of Social Philosophy 36 (3), 331-343
Carter Stephen, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion
NY: Basic Books, 1993)
Corvino Jonathan “Justice for Glenn and Stacy: On Gender, Morality, and Gay Rights” in James P. Sterba,
ed., Social and Political Philosophy: Contemporary Perspectives (Routledge, 2001) 300-18
Dworkin Ronald, “Three Questions for America,” The New York Review of Books, (2006) Sept. 21, pp.
24-30
Gerstmann Eva n, “Same Sex Marriage and the Consitution” (Cambridge University Press, 2004)
Hamer D., Hu S., Magnuson V., Hu N., Pattatucci A.,“A Linkage Between DNA Markers on the X
Chromosome and Male Sexual Orientation” Science (1993) 261:16 321-27
25
Helminiak Daniel, What the Bible Really Says About Homosexuality (San Francisco: Alamo
Square Press, 1994)
Isay Richard M, “Heterosexually Married Homosexual Men: Clinical and Developmental Issues.” Am.
Journal of Orthopsychiatry (1998) 68:3 424-32
Jordan Jeff, “Is it Wrong to Discriminate on the Basis of Homosexuality?” Journal of
Social Philosophy 26, no. 1 (1995): 39-52
Koppleman Andrew “Is Marriage Inherently Heterosexual?” (1997) Am. J. Juris. 42:51 pp.51-95.
La Follete Hugh, “Licensing Parents,” Philosophy and Public Affairs, (Winter 1980) Vol. 9, No. 2, pp. 18297
LeVay Simon, The Sexual Brain (Cambridge, MA : MIT Press 1993) pp. 120-22
Levin Michael E., Sexual Orientation and Human Rights (Lanham, MD: Rowman Litttlefield, 1999)
Levin, “Why Homosexuality is Abnormal” The Monist (1984) 67 pp. 251-83
MacIntyre Alasdair, After Virtue (University of NotreDame Press) 1981
McLain Linda C. “Evolution—Or End—Of Marriage?: Reflections on the Impasse of Same-Sex Marriage”
Family Court Review (2006) 44:2 200
Murphy Timothy F., “Homosexuality and Nature: Happiness and the Law at
Stake,” Journal of Applied Philosophy (1987) 4 pp. 195-205.
Poole, Robert “Evidence for Homosexuality Gene” Science (1993) 261:16 291-92.
Rawls John, Collected Papers, ed. Samuel Freeman, (Harvard University Press 1999)
Rawls John, Justice as Fairness: A Restatemen, (Harvard University Press, 2002)
Rawls John, Political Liberalism, (Columbia University Press 1993)
Rawls John, A Theory of Justice, (Belknap Press 1971)
Russell Bertrand, Sceptical Essays, (Routledge 2005)
Schaff Kory “Equal Protection and Same-Sex Marriage” Journal of
Social Philosophy (2004) 35:1 133
Schaff Kory “Kant, Political Liberalism, and The Ethics of SameSex Marriage,” Journal of Social Philosophy (2001) 32:3 446
Strasser Mark, Legally Wed: Same-Sex Marriage and the Constitution, (Cornell University Press, 1997)
Strasser Mark, On Same Sex Marriage, Civil Unions, and The Rule of Law (Westport, Connecticut
London, 2002)
Sullivan Andrew, Virtually Normal: An Argument About Homosexuality (New York: Alfred A. Knopf
1995)
26
Thomas Laurence M., “Preferences and Equality: A Response to Levin” in Laurence M. Thomas and
Michael E. Levin, Sexual Orientation and Human Rights (Lanham, MD: Rowman Litttlefield, 1999
Torcello Larry and Stephen E. Wear “The Commercialization of Human Body Parts: A Reappraisal From a
Protestant Perspective” Christian Bioethics (2000) 6:2 pp. 153-69
Wedgwood Ralph, “The Fundamental Argument for Same-Sex Marriage” Journal of Political
Philosophy (1999) 7:3 pp. 225-42
Westermarck Edward Alexander, The History of Human Marriage, (Adamant Media Corporation, 2000)
27