Justificatory Liberalism and Same‐Sex Marriage

Abstract

Supporters of Justificatory Liberalism (JL)—such as John Rawls and Gerard Gaus—typically maintain that the state may not coerce its citizens on matters of constitutional essentials unless it can provide public justification that the coerced citizens would be irrational in rejecting. The state, in other words, may not coerce citizens whose rejection of the coercion is based on their reasonable comprehensive doctrines (i.e., worldviews). Proponents of the legal recognition of same‐sex marriage (SSM) usually offer some version of JL as the most fundmental reason why laws that recognize marriage only if it is a union between one man and one woman are unjust. In this article I argue that the application of JL in support of legal recognition of SSM does not succeed because the issue under scrutiny—the nature of marriage—is deeply embedded in, and in most cases integral to, many (if not most) citizens’ reasonable comprehensive doctrines. Thus, I argue that because of the effects and consequences of the legal recognition of SSM, it results (or will result) in a violation of JL against dissenting citizens.

Public Reason Liberalism and Sex‐Neutral Marriage A Response to Francis J. Beckwith

“…Section 1 of Beckwith's essay (“Justificatory Liberalism”) manages to make a liberal case against SSM only by presenting a tendentious picture of two of liberalism's key principles, the Political Liberty Principle (Beckwith , 490–2) and the Public Justification Principle (Beckwith , 492–5). The former principle advances the primacy of personal liberty in matters relating to civil association, while the latter states that certain important aspects of that political association need to be justified to those relevantly affected by it.…”

“…This clearly needs some contextualisation in theoretical terms. The SSM issue can be conceived of within the specification of Rawls's “first principle of justice” (Rawls , 5, quoted in Beckwith , 490) within a society's political conception of justice, or as an expression of a political society's commitment to “the social bases of self‐respect” for those citizens in same‐sex relationships (see Michelman , 413). An overlapping consensus on a liberal political conception of justice, or a family of such conceptions, regulates only the basic structure of a constitutional democracy, which in turn relates only to matters of basic justice and the essence of a constitution.…”

“…Francis J. Beckwith argues that justificatory liberalism (propounded, as he sees it, by the likes of Gerald Gaus, John Rawls, and Ronald Dworkin) necessitates that same‐sex marriage (SSM) not be recognised in civil law (Beckwith ). He reaches this conclusion by arguing that official Roman Catholic moral and social doctrine, including in relation to the morality of same‐sex relationships, is “reasonable” in John Rawls's liberal schema.…”

“…First, he gives an inadequate presentation of John Rawls's understanding of political liberalism and compounds this by inaccurately conflating it with another discrete form of contemporary liberalism: justificatory liberalism (see Section 1 of this article). Taking into account these flaws the upshot of Beckwith's analysis, assuming arguendo , is sufficient only to justify certain exemptions for those who are irreconcilably opposed to SSM on the basis of conscientious reasons (Beckwith , 506), but does not justify a general bar on enacting sex‐neutral marriage.…”

“…Second, Beckwith views disagreement on the issue of civil marriage as representative of purely rational disagreement between parties who hold no undue prejudice (Beckwith , 489, 503) about people in same‐sex relationships (see Section 2 below). In doing so he overlooks evident undue bias against people with a same‐sex sexual orientation present in the culture of many societies and in the official Catholic stance on homosexuality.…”