Online research in philosophy

Experience clearly 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 just what the appropriate liberal strategy is and should be in defense of this thesis. Rather than try to defend SSM directly, I shall proceed indirectly by arguing that SSM prohibitions are indefensible on liberal grounds. Initially, I shall consider what I take to be the most powerful liberal argument against SSM prohibitions and account for my reservations about it. Then, I shall propose an alternative argument with roots in constitutional law that since SSM prohibitions do not survive liberal scrutiny, they must be rejected.

Addressing controversy over same-sex marriage, I defend the privatization response: disestablish civil marriage, leaving the question of same-sex marriage to private organizations; detach civil rights from erotic affiliation; and grant legal equality through the mechanism of civil unions. However, the privatization response does not fully address one key conservative argument to the effect that (heterosexual) marriage constitutes a public good of such importance that civil society has a sustaining interest in it. I acknowledge the legitimate, even profound, values or goods that marriage promotes, but contend that they are compatible withhomosexuality. Further, I argue that marriage is neither necessary nor sufficient for sustaining the goods that inhere in modern marriage. Thus, it is not clear that marriage is the best way for the state to promote these goods. Finally, I suggest that the core goods of marital commitment are moral and are not the proper subject of state regulation.

This paper defends a legal and political conception of sexual relations grounded in Kant’s Doctrine of Right. First, I argue that only a lack of consent can make a sexual deed wrong in the legal sense. Second, I demonstrate why all other legal constraints on sexual practices in a just society are legal constraints on seemingly unrelated public institutions. I explain the way in which the just state acts as a civil guardian for domestic relations and as a civil guarantor for private property and contract relations—and thereby enables the existence of legally enforceable claims. Throughout the aim is to demonstrate that Kant’s relational conception of justice entails that legally enforceable claims regarding sexual deeds are fully justifiable only insofar as they are determined and enforced by a public authority that we may refer to as a liberal democratic welfare state.

This essay argues that the four most plausible arguments compatible with public reason for an outright legal ban on all forms of polygamy are unvictorious. My purpose is not to survey exhaustively the empirical literature on contemporary forms of polygamy, but to tease out the types of arguments political liberals would have to insist on, and precisely how strongly, in order for a general prohibition against polygamy to be justified. The most common objection to polygamy is on grounds of gender equality, more specifically, female equality. But advancing this argument forcefully often involves neglecting the tendency of political liberalism (whatever name it goes by in contemporary, complex, multicultural societies) to tolerate a certain amount of inegalitarianism in private, within the bounds of robust and meaningful freedoms of choice and exit. Properly understood, polygamy involves no inherent statement about the essential inferiority of women, and certainly not more than many other existing practices and institutions (including many expressions of the main monotheistic religions) which political liberals regard as tolerable.

Incest taboos should be seen as involving non?sexual objections to sexual relations, that is, objections based on who people are in relation to each other, rather than their activities. What is at stake is brought out by considering certain objections to father?daughter incest and certain features of taboos. The objections that matter do not depend on social ties and distinctions having a biological basis, but there is nonetheless a biological element in incest taboos. To see it, one must look to the nature of the Oedipus complex, and to the conditions for the development of the individual and of society. There may be prohibitions which are necessary (to morality, to society, to humanity) even though they may not be justifiable within a narrower conception (e.g. utilitarian) of morality and justification. And so taboos which are universal (occur, in one form or another, in every society), and absolute (allow no questioning), and impose strict liability (allow no excuse), may not be irrational: they may mark the boundaries that shape a way of life.

This Article examines the role that the incest taboo has played in slippery slope rhetoric pertaining to same-sex marriage specifically, and non-normative family arrangements more generally, and argues that the law must reappraise the extent to which disgust, rather than reasoned argument, sustains laws governing sexual and familial choice. It takes issue with the claim that discussion of the taboo has led to its erosion, and contends that it has remained a powerful symbol of non-normative sexuality that sits at the bottom of the slippery slope of sexual deviance. While often dismissed as mere rhetoric, the incest/same-sex relations analogy has been a strategic way to provoke disgust against otherwise consensual relationships. To explain why the taboo has persisted over time as a point of comparison to any non-normative family arrangement (interracial marriage, same-sex marriage), it maintains that incest, more than any other sexual taboo, represents an archetypal form of disgust and boundary violation. This theory of incest as a core symbol of disgust looks to other disciplines, including political theory, anthropology, and moral psychology, that have described disgust in similar terms, namely, as a mechanism triggered in response to any perceived instance of boundary violation. After situating the taboo within this theoretical framework, this Article explores more fully how, and why, the law has relied on the taboo to discriminate against consensual sexual relationships, most notably same-sex relations. It concludes by suggesting ways in which the law might turn away from the taboo and embrace other models that conceive of familial and sexual relationships in more expansive and less disgust-driven ways.

This paper argues that the four most plausible arguments compatible with public reason for an outright legal ban on all forms of polygamy are unvictorious. I consider the types of arguments political liberals would have to insist on, and precisely how strongly, in order for a general prohibition against polygamy to be justified, while also considering what general attitude towards "marriage" and legal recognition of the right to marry are most consistent with political liberalism. I argue that a liberal state should get out of the "marriage business" by leveling down to a universal status of "civil union" neutral as to the gender and affective purpose of domestic partnerships. I then refute what I regard as the four most plausible rational objections to offering this civil union status to multi-member domestic partnerships. The most common objection to polygamy is on grounds of gender equality, more specifically, female equality. But advancing this argument forcefully often involves neglecting the tendency of political liberalism (by whatever name it goes in contemporary, complex, multicultural societies) to tolerate a certain amount of inequality in private, within the bounds of robust and meaningful freedoms of choice and exit. Properly understood, polygamy involves no inherent statement about the essential inferiority of women, and certainly not more than many other existing practices and institutions (including many expressions of the main monotheistic religions) which political liberals regard as tolerable, even reasonable. Arguments from the welfare of children, fairness in the spousal market, and the abuse of family subsidies are also considered and found insufficient for excluding polygamy.

If a state with liberal political and justificatory commitments extends benefits of various kinds to persons forming families, what qualifications may such a state place on the right to access to those benefits? I will make two assumptions for the purposes of this paper. The first is the political and justificatory terrain of some form of political or otherwise non-perfectionist liberalism. The assumption is that we are considering the resources and limitations of a community of persons who accept moral pluralism (if not a specific doctrine like the "burdens of judgment"), some priority for individual freedom, and the obligation to justify public coercion and exclusion in terms accessible and fair to all members of morally and culturally diverse society. The second is that it is justified for a liberal state to recognize some forms of domestic partnerships or families in the first place and extend further benefits to them such as tax credits or laws extending (or facilitating the extension of) medical or social insurance. It is, of course, possible to imagine the argument that the liberal state gets out of the marriage business by getting out of it entirely - by extending no recognition or positive rights to families whatsoever beyond negative non-interference rights. I am interested in the dilemma of a society broadly like existing liberal ones which is committed both to subsidizing families and also to justificatory neutrality (expressed in American constitutional legal terms as the requirement of providing a "rational basis" for unequal treatment). Given these assumptions, I believe that the most justifiable policy on liberal grounds is not the institution of "marriage" increasingly open to new constituent relationships but rather a status of "registered domestic partnership" which fulfills the social and moral aims behind subsidizing the family but is entirely neutral not only to the gender or even to the numbers of the partners, but also to the affective and emotional content of domestic life and the purposes behind contracting domestic partnerships. So is there a right to polygamy and incestuous marriage? There is not a specific right to either and thus there is no a priori reason why some restrictions or even prohibitions on them might not be justified, but the same is true for every specific act where a general right to the freedom exists. I argue in this paper, however, that the arguments compatible with public reason for prohibiting them outright, or even for excluding them from the permissible types of legally registered partnerships, are quite weak. I argue that objections to polygamy from (1) female autonomy, (2) damage to children, (3) fairness in the marital market, and (4) the unfair burdening of society are serious and worth refuting, but do not establish a victorious case against multi-member relationships. As to incest, there are two separate questions. The first is whether the new institution of "registered domestic partnershi

In this article I consider whether the legalization of sex-same marriage implies a right to incestuous marriage. I begin by suggesting that the liberal state get out of the 'marriage' business by leveling down to a universal civil union status. The question is then whether incestuous unions should be both legal and eligible for this status. I argue that the arguments compatible with public reason for prohibiting them outright, or even for excluding them from the permissible types of legally registered partnerships, are quite weak. The objections to allowing such relations are those from (1) child abuse; (2) unfair burdening of society; and (3) the creation of bad lives. I argue that while rape and other forms of child abuse would be no more legal or tolerated than they are now, the concern about any form of weakening a society's legal and political resources to combat such abuses does indeed register on the justificatory scale, but does not prove that such first-degree incestuous sexual relations are inherently bad enough to warrant intervention in their own right. I then argue that the concern about unfairly burdening society with unhealthy persons is not as dangerously totalitarian as we might initially fear, but nor is it strong enough to justify an outright prohibition. Finally, I argue that a concern to dissuade persons from creating certain kinds of lives (children with extreme birth defects) is also not as dangerously totalitarian as we might initially fear, and in fact goes further towards explaining why we might have a legitimate interest in intervening. Nonetheless, I argue that the criminalization of such acts only make sense when they are indicators of other offenses, namely negligence or abuse, and it thus seems that the act of consanguineous reproduction is itself insufficient.

This paper offers a genealogy of anti-polygamy sentiment in North America, elucidating certain racist and nationalist formations that are implicit in the historical valorization and enforcement of heterosexual monogamy. It tracks the white supremacist and heteronormative logic that conditions the widespread disdain toward polygamy, and that renders it fundamentally different from familial configurations that are associated with national identity. Relating political and philosophical doctrines to the archival documentation and insights of contemporary legal and cultural historians of anti-polygamy sentiment, it elucidates the racial Anglo-Saxonism of Hegel's ruminations on marriage and on the state, and highlights its reverberation within the political philosophy that justified the criminalization of polygamy and its supporting institutions in the nineteenth century and in contemporary immigration policy and same-sex marriage advocacy in Canada and the United States.