Deliberative democracy, overlapping consensus, and same-sex marriage

Fordham Law Review

Volumn 66, Issue 4, 1998, Pages 1241-1251

  McClain, Linda C ^a  

^a HOFSTRA UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0032386688     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (60)

1. Amy Gutmann & Dennis Thompson, Democracy and Disagreement 52 (1996).
2. See John Rawls, Political Liberalism (1996); John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) [hereinafter Rawls, Public Reason]. Rawls defines "comprehensive moral doctrine" as a moral conception that "includes conceptions of what is of value in human life, and ideals of personal character, as well as ideals of friendship and of familial and associational relationships, and much else that is to inform our conduct . . . ." Rawls, Political Liberalism, supra, at 13. Other leading work on deliberative democracy shares Rawls's premise that citizens should not seek to impose or establish their comprehensive moral doctrines in politics, but should abide by an idea of public reason and a duty of reciprocity. See Gutmann & Thompson, supra note 1, at 46-49.
3. See John Rawls, Political Liberalism (1996); John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) [hereinafter Rawls, Public Reason]. Rawls defines "comprehensive moral doctrine" as a moral conception that "includes conceptions of what is of value in human life, and ideals of personal character, as well as ideals of friendship and of familial and associational relationships, and much else that is to inform our conduct . . . ." Rawls, Political Liberalism, supra, at 13. Other leading work on deliberative democracy shares Rawls's premise that citizens should not seek to impose or establish their comprehensive moral doctrines in politics, but should abide by an idea of public reason and a duty of reciprocity. See Gutmann & Thompson, supra note 1, at 46-49.
4. Robert P. George, Public Reason and Political Conflict: Abortion and Homosexuality, 106 Yale L.J. 2475, 2504 (1997).
5. See generally Michael J. Sandel, Democracy's Discontent: America In Search of a Public Philosophy (1996) (attributing the "procedural republic" characteristic of America's public philosophy to, inter alia, Rawls's political liberalism).
6. See Edward B. Foley, Jurisprudence and Theology, 66 Fordham L. Rev. 1195 (1998). Foley draws upon Gutmann & Thompson, supra note 1; Rawls, Political Liberalism, supra note 2; and Rawls, Public Reason, supra note 2.
7. See Edward B. Foley, Jurisprudence and Theology, 66 Fordham L. Rev. 1195 (1998). Foley draws upon Gutmann & Thompson, supra note 1; Rawls, Political Liberalism, supra note 2; and Rawls, Public Reason, supra note 2.
8. See Edward B. Foley, Jurisprudence and Theology, 66 Fordham L. Rev. 1195 (1998). Foley draws upon Gutmann & Thompson, supra note 1; Rawls, Political Liberalism, supra note 2; and Rawls, Public Reason, supra note 2.
9. Foley, supra note 5, at 1197.
10. Id. at 1207.
11. Id. at 1204.
12. Id. at 1209-10.
13. Id. at 1206-09. The idea of an overlapping consensus, which Foley takes from Rawls, plays a central role in Foley's approach to achieving a secular legal system. See id.
14. Id. at 1211 n.22. Foley offers the example of abortion. Id. at 1210.
15. See discussion infra text accompanying notes 25-29.
16. Although Professor Foley's article focuses primarily upon the responsibilities of judges, in this essay, based upon his few references to the responsibilities of legislators, I focus upon implications of his model for public justification by legislators and citizens.
17. See Rawls, Public Reason, supra note 2, at 797.
18. Foley suggests that his distinction between secular and theological reasoning is "essentially equivalent" to Rawls's discussion between public and private reason. Foley, supra note 5 at 1206 n.16 (discussing John Rawls, A Theory of Justice (1971)). But Rawls distinguishes public reason from "secular reason and secular values," because the latter, on his view, include "reasoning in terms of comprehensive nonreligious doctrines," and are "too broad to serve the purposes of public reason." Rawls, Public Reason, supra note 2, at 775.
19. Foley suggests that his distinction between secular and theological reasoning is "essentially equivalent" to Rawls's discussion between public and private reason. Foley, supra note 5 at 1206 n.16 (discussing John Rawls, A Theory of Justice (1971)). But Rawls distinguishes public reason from "secular reason and secular values," because the latter, on his view, include "reasoning in terms of comprehensive nonreligious doctrines," and are "too broad to serve the purposes of public reason." Rawls, Public Reason, supra note 2, at 775.
20. Loving v. Virginia, 388 U.S. 1, 12 (1967); see Zablocki v. Redhail, 434 U.S. 374 (1978).
21. See Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974). For a helpful discussion and critique of these and other arguments against same-sex marriage, see William N. Eskridge, Jr. & Nan D. Hunter, Sexuality, Gender, and the Law 795-817 (1997).
22. 852 P.2d 44 (Haw. 1993).
23. Id. at 61.
24. Pub. L. No. 104-199, 110 Stat. 2419. (1996) (codified at 28 U.S.C. § 1738C (1996) and 1 U.S.C. § 1 (1996)). Proponents of DOMA repeatedly cited, as evidence of a "gay activist scheme," a LAMBDA Legal Defense and Education Fund memorandum raising this possibility as one outcome of Hawaiian legalization of same-sex marriage. See, e.g., 142 Cong. Rec. H7484 (daily ed. July 12, 1996) (statement of Rep. Sensenbrenner) ("Gay rights groups are scheming to manipulate the full faith and credit clause to achieve through the judicial system what they cannot obtain through the democratic process.").
25. 110 Stat. 2419.
26. See, e.g., Alaska Stat. § 25.05.013 (Michie 1996) (declaring that a same-sex marriage recognized by another state is "void in this state"); 750 Ill. Comp. Stat. Ann. § 5/213.1 (West 1997) ("[a] marriage between 2 individuals of the same sex is contrary to the public policy of this State"); see also David W. Dunlap, Fearing A Toehold for Gay Marriages, Conservatives Rush to Bar the Door, N.Y. Times, Mar. 6, 1996, at A13 (describing status of legislative efforts).
27. See Hawaii Seeks Law to Block Gay Marriage, N.Y. Times, Apr. 18, 1997, at A15.
28. See George, supra note 3, at 2495-2501 (arguing that resolution of same-sex marriage debate depends upon comprehensive moral views); Steven A. Holmes, Civil Rights Dance Lesson: The Tiny Step Forward, N.Y. Times, Sept. 15, 1996, at E5 (reporting poll results that 67 percent of respondents felt gay marriages went against their "religious beliefs"); Alan Wolfe, The Homosexual Exception, N.Y. Times, Feb. 8, 1998, § 6 (Magazine), at 46 (reporting prevalence of references to sin, unnaturalness, and immorality in a survey of middle-class suburban Americans' attitudes about homosexuality and resistance to toleration and acceptance of gay men and lesbians).
29. See George, supra note 3, at 2495-2501 (arguing that resolution of same-sex marriage debate depends upon comprehensive moral views); Steven A. Holmes, Civil Rights Dance Lesson: The Tiny Step Forward, N.Y. Times, Sept. 15, 1996, at E5 (reporting poll results that 67 percent of respondents felt gay marriages went against their "religious beliefs"); Alan Wolfe, The Homosexual Exception, N.Y. Times, Feb. 8, 1998, § 6 (Magazine), at 46 (reporting prevalence of references to sin, unnaturalness, and immorality in a survey of middle-class suburban Americans' attitudes about homosexuality and resistance to toleration and acceptance of gay men and lesbians).
30. 142 Cong. Rec. S10111 (Sept. 10, 1996) (statement of Sen. Byrd).
31. Id. at S10109-10.
32. The argument was made by Senator Robert Byrd, a co-sponsor of DOMA, see text accompanying notes 25-26, and subsequently praised by Senator Nickles, who brought DOMA to the floor for debate, for putting the legislation in "historical perspective." 142 Cong. Rec. S10111 (daily ed. Sept. 10, 1996) (statement of Sen. Nickles).
33. Foley, supra note 5, at 1202-05. For Gutmann and Thompson, the appeal to divine authority as such is not what creates a problem for a deliberative perspective (for example, to take an earlier battle, miscegenation is wrong because God says so in the Bible): "The problem lies in the appeal to any authority whose conclusions are impervious, in principle as well as practice, to the standards of logical consistency or to reliable methods of inquiry that themselves should be mutually acceptable." Gutmann & Thompson, supra note 1, at 56. A claim "fails to respect reciprocity if it imposes a requirement on other citizens to adopt one's sectarian way of life as a condition of gaming access to the moral understanding that is essential to judging the validity of one's moral claims." Id. at 57.
34. Cf. 142 Cong. Rec. S10106 (daily ed. Sept. 10, 1996) (statement of Sen. Gramm) (making this argument in support of DOMA).
35. For example, a helpful point made at the Conference in response to this essay was that some contemporary religions support same-sex marriage, which calls into question the assertion of uniform religious opposition to same-sex marriage. See also Shahar v. Bowers, 114 F.3d 1097, 1118-22 (11th Cir. 1997) (Godbold, J., dissenting) (noting that Reconstructionist Judaism accepts same-sex marriage and that state's denial of employment to lesbian participant in such marriage violated her constitutional right of intimate association), cert. denied, 118 S. Ct. 693 (1998); William N. Eskridge, Jr., The Case for Same-Sex Marriage 46-48 (1996) (noting various religions' support of same-sex unions).
36. See, e.g., 142 Cong. Rec. S10122 (daily ed. Sept. 13, 1996) (statement of Sen. Robb) (referring to "last frontier" in fight for civil rights and earlier public revulsion at miscegenation); 142 Cong. Rec. H7491 (daily ed. July 12, 1996) (statement of Rep. Studds) ("this is . . . the last unfinished chapter of civil rights in this country"); id. at H7499 (statement of Rep. Conyers) (referring to public opposition to ending segregation when civil rights laws were passed in the 1960s).
37. Bowers v. Hardwick, 478 U.S. 186, 197 (1986) (Burger, C.J., concurring).
38. See Bowers, 478 U.S. at 190-96 (upholding sodomy statute because of electorate's presumed moral condemnation of homosexual sodomy). But see Romer v. Evans, 517 U.S. 620 (1996) (striking down constitutional amendment prohibiting protection of gay men, lesbians, and bisexuals against discrimination as premised on impermissible "animus").
39. Rawls, Public Reason, supra note 2, at 797.
40. Id. at 771; see also Gutmann & Thompson, supra note 1, at 52-53 (linking reciprocity to a sense of mutuality that citizens and representatives should bring to the public forum).
41. Rawls, Public Reason, supra note 2, at 769.
42. Id. at 776, 783-84.
43. Id. at 797.
44. Id. at 771.
45. Id. (discussing the examples of slavery, the denial of religious liberty, and the denial of suffrage to women).
46. Some prominent natural law scholars attempt to elaborate a teleological version of these arguments: government does not treat gays and lesbians unequally or discriminate against them in denying them the right to marry if gays and lesbians lack the capability to fulfill its requirements and to realize the goods of marriage, that is, a "one-flesh" union of a male and a female yielding friendship and children. George, supra note 3, at 2497-99; see also John M. Finnis, Law, Morality, and "Sexual Orientation," 69 Notre Dame L. Rev. 1049, 1066-68 (1994) (defending government's failure to protect against discrimination of the basis of sexual orientation because of the immorality of homosexual conduct and arguing that same-sex couples cannot achieve the goods of marriage).
47. See, e.g., Ronald Smothers, Mississippi Governor Bans Same-Sex Marriage, N.Y. Times, Aug. 24, 1996, at 7 (reporting Governor Fordice's statement that "same-sex marriage makes a mockery out of the institution of marriage, which is already embattled").
48. See, e.g., Kit R. Roane, Gay Couples and the Law, at Odds Over the Right to Marry, N.Y. Times, Feb. 2, 1997, at § 13, 7 (quoting New Jersey Assemblyman Marian Crecco: "Allowing [gays and lesbians] to marry would make the institution meaningless. What if someone next wants to marry their brother or sister? Where does it stop?"). For a thoughtful exploration by a proponent of same-sex marriage of the lessons to be learned from the invocation of the polygamy analogy in the debate over DOMA,
49. see David L. Chambers, Polygamy and Same-Sex Marriage, 26 Hofstra L. Rev. 53 (1997).
50. See 142 Cong. Rec. S10113-14 (daily ed. Sept. 10, 1996) (statement of Sen. Coats).
51. Rawls, Public Reason, supra note 2, at 779-80, 788 & n.60.
52. Civ. No. 91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996).
53. Id. at *20-21.
54. Id. at *5-6.
55. Rawls, Public Reason, supra note 2, at 780 (discussing laws treating homosexual relations between citizens as criminal offenses).
56. Id. at 779-80. In contrast, natural law scholar Robert George argues that society and government have an obligation to "get it right," that is, to embody a morally sound conception of marriage, and that doing so must appeal to comprehensive moral doctrines concerning the nature and good of marriage. George, supra note 3, at 2500.
57. Rawls, Public Reason, supra note 2, at 780. But see George, supra note 3, at 2499 (contending that his conception of marriage rests upon a comprehensive view that does not "make[] any appeal to principles or propositions that are not publicly available to rational persons"). In contrast, Foley appears to reject "theological" beliefs because of their inaccessibility to those who do not share the belief. See Foley, supra note 5, 1204-06. Gutmann and Thompson similarly emphasize that such beliefs violate the condition of reciprocity because of their inaccessibility. See discussion supra note 28 and accompanying text. As discussed supra note 15, Rawls does not equate secular with public reason. Although I cannot here elaborate on the extent to which Gutmann and Thompson's account of reciprocity may differ from that of Rawls, for present purposes, the significant point of agreement is the insistence upon public justification on the basis of mutually acceptable reasons and the requirement that citizens not seek to impose their comprehensive moral conceptions or doctrines. See Gutmann & Thompson, supra note 1, at 14, 92. I do not criticize Foley's invocation of reciprocity to the extent that it shares these two features. My argument here is that Foley's approach does not go far enough in requiring the appeal to political values and public reason, even when citizens may permissibly appeal to theological beliefs and argument.
58. See 142 Cong. Rec. H7278 (daily ed. July 11, 1996) (statement of Rep. Frank).
59. See Loving v. Virginia, 388 U.S. 1, 11 (1967) (striking down anti-miscegenation law, defended in terms of religious and moral convictions, as being rooted in impermissible ideology of white supremacy); Rawls, Public Reason, supra note 2, at 790-91 (noting John Stuart Mill's critique of the family in Mill's day as a "school for male despotism" and arguing that, if the family continues to perpetuate injustice, then society must reform it). Elsewhere I enlist feminist and liberal arguments in favor of a principle of toleration as respect that would support same-sex marriage. See Linda C. McClain, Toleration, Autonomy, and Governmental Promotion of Good Lives: Beyond "Empty" Toleration to Toleration as Respect, 59 Ohio St. L.J. (forthcoming Apr. 1998).
60. See Loving v. Virginia, 388 U.S. 1, 11 (1967) (striking down anti-miscegenation law, defended in terms of religious and moral convictions, as being rooted in impermissible ideology of white supremacy); Rawls, Public Reason, supra note 2, at 790-91 (noting John Stuart Mill's critique of the family in Mill's day as a "school for male despotism" and arguing that, if the family continues to perpetuate injustice, then society must reform it). Elsewhere I enlist feminist and liberal arguments in favor of a principle of toleration as respect that would support same-sex marriage. See Linda C. McClain, Toleration, Autonomy, and Governmental Promotion of Good Lives: Beyond "Empty" Toleration to Toleration as Respect, 59 Ohio St. L.J. (forthcoming Apr. 1998).