Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family

The British Journal of American Legal Studies, Vol. 1, Issue 2 (Summer/Fall 2012)

56 Pages Posted: 27 Aug 2012 Last revised: 12 Nov 2012

See all articles by Matthew B. O'Brien

Matthew B. O'Brien

Villanova University - Matthew J. Ryan Center, Department of Political Science; Independent

Date Written: May 1, 2012

Abstract

John Rawls’s political liberalism and its ideal of public reason are tremendously influential in contemporary political philosophy and in constitutional law as well. Many liberals are Rawlsians of one stripe or another. This is problematic, because most liberals also support the redefinition of civil marriage to include same-sex unions, and as I show, Rawls’s political liberalism actually prohibits same-sex marriage. Recently in Perry v. Schwarzenegger, however, California’s northern federal district court reinterpreted the traditional rational basis review in terms of liberal neutrality akin to Rawls’s ideal of “public reason,” and overturned Proposition 8 and established same-sex marriage. (This reinterpretation was amplified in the 9th Circuit Court’s decision upholding the district court on appeal in Perry v. Brown). But on its own grounds Perry should have drawn the opposite conclusion. This is because all the available arguments for recognizing same-sex unions as civil marriages stem from controversial comprehensive doctrines about the good, and this violates the ideal of public reason; yet there remains a publicly reasonable argument for traditional marriage, which I sketch here. In the course of my argument I develop Rawls’s politically liberal account of the family and defend it against objections, discussing its implications for political theory and constitutional law.

Keywords: Marriage and Family, Public Reason, Same-Sex Marriage, John Rawls, Political Liberalism, Constitutional Law, Neutrality

Suggested Citation

O'Brien, Matthew B. and O'Brien, Matthew B., Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family (May 1, 2012). The British Journal of American Legal Studies, Vol. 1, Issue 2 (Summer/Fall 2012), Available at SSRN: https://ssrn.com/abstract=2136540

Matthew B. O'Brien (Contact Author)

Independent ( email )

United States

Villanova University - Matthew J. Ryan Center, Department of Political Science ( email )

800 Lancaster Avenue
304 Old Falvey Hall
Villanova, PA 19085
United States

HOME PAGE: http://villanova.academia.edu/MatthewOBrien

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
1,458
Abstract Views
7,102
Rank
24,330
PlumX Metrics