David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
British Journal of American Legal Studies 1 (2):411-466 (2012)
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, perhaps even most, 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 “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 by drawing upon work by J. David Velleman and H. L. A. Hart, and discuss the implications of this account for political theory and constitutional law.
|Keywords||John Rawls Political Liberalism Neutrality Marriage Gay Rights Justice Constitutional Law Family Sexuality Public Reason|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Elizabeth Brake (2010). Minimal Marriage: What Political Liberalism Implies for Marriage Law. Ethics 120 (2):302-337.
Colin Farrelly (1999). Public Reason, Neutrality and Civic Virtues. Ratio Juris 12 (1):11-25.
Matthew J. Lister (2007). A Rawlsian Argument for Extending Family-Based Immigration Benefits to Same-Sex Couples. University of Memphis Law Review 37 (Summer).
Ruth Abbey (1999). Back to the Future: Marriage as Friendship in the Thought of Mary Wollstonecraft. Hypatia 14 (3):78-95.
Elizabeth Brake (2004). Rawls and Feminism: What Should Feminists Make of Liberal Neutrality? Journal of Moral Philosophy 1 (3):293-309.
Enzo Rossi (2013). Legitimacy, Democracy and Public Justification: Rawls' Political Liberalism Versus Gaus' Justificatory Liberalism. Res Publica (1):1-17.
Christie Hartley & Lori Watson (2012). Political Liberalism, Marriage and the Family. Law and Philosophy 31 (2):185-212.
Peter Brian Barry (2011). Same-Sex Marriage and the Charge of Illiberality. Social Theory and Practice 37 (2):333-357.
Sebastiano Maffettone (2001). John Rawls. Croatian Journal of Philosophy 1 (3):189-216.
Ruth Abbey (2007). Back Toward a Comprehensive Liberalism? Justice as Fairness, Gender, and Families. Political Theory 35 (1):5 - 28.
David Shaw (2011). Justice and the Fetus: Rawls, Children and Abortion. Cambridge Quarterly of Healthcare Ethics 20 (1):93-101.
James Boettcher (2004). What is Reasonableness? Philosophy and Social Criticism 30 (5-6):597-621.
Alexandra Dobra (2011). OKIN's FEMINIST CHALLENGE TO RAWLS's THEORY OF JUSTICE. FROM THEORY TO PUBLIC ACTION. Studia Philosophica (1):51-64.
Added to index2012-04-27
Total downloads228 ( #2,392 of 1,102,037 )
Recent downloads (6 months)60 ( #1,266 of 1,102,037 )
How can I increase my downloads?