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Notes
See United States v. Windsor, 507 US___ (2013).
See Hollingworth v. Perry, 507 US___ (2013).
As of September 9, 2013, 29 US states do not recognize any form of same-sex partnership. Twelve US states and the District of Columbia recognize same-sex marriage, and the remaining nine states recognize some sort of domestic partnership status short of full marriage. See, http://www.marriageequality.org/Marriage%20Equality%20State-by-State (last checked Sept. 14, 2013).
For details, see, http://www.marriageequality.org/Around%20the%20World (last checked Sept. 14, 2013).
See Steven Erlanger, “Gay Marriage is Protested in France”, New York Times, May 26, 2013, at http://www.nytimes.com/2013/05/27/world/europe/thousands-march-in-france-against-gay-marriage.html?_r=0.
See Miriam Elder, “Russia Passes Law Banning ‘Gay Propaganda’”, The Guardian, June 11, 2013, at http://www.theguardian.com/world/2013/jun/11/russia-law-banning-gay-propaganda.
See, “Russian MP moves to strip gays of parental rights”, Russia Today, Sept. 5, 2013, at http://rt.com/politics/gay-families-no-kids-447/.
The idea of “public reason” is, of course, most strongly associated with Rawls. See, in particular, John Rawls, Political Liberalism, pp. 212–254 (Columbia University Press, 1996). Distinct but related ideas have been developed by Martha Nussbaum, Gerald Gaus, Charles Larmore, Jurgen Habermas, and others. None of these figures are discussed in this book, as is appropriate for its intended audience, but it seems quite appropriate to my mind to see the book as a particularly clear example of how a debate within public reason would take place.
Gallagher does slip a few times, when she worries about the fate of people who hold a view of marriage “embedded in Genesis” (168) and worries about an “institution grounded in the laws of nature and Nature’s God” being demoted to a mere licensing scheme (176). She usually does manage to present public-reason arguments. I cannot help but be amused by the “embedded in Genesis” argument, as that would seem to call for an institution where marriage is made up of a man, his wife, and his several concubines, though of course that is not what Gallagher has in mind.
Corvnio has provided convincing arguments for this view elsewhere, but does not depend on them in this book. See, in particular, Corvino, “Homosexuality and the PIB Argument”, Ethics, Vol. 115 (April 2005): 501–534. At greater length, see Corvino, What’s Wrong with Homosexuality? (Oxford University Press, 2012).
All parenthetical references are to the book under review.
By this Gallagher seems to mean something like marriage found in 1950s America—after women had most legal rights but before the 2nd wave feminist movement, and marriage of the sort common during a period of full-employment and economic growth. Her official account of “traditional marriage” is, “the exclusive, enduring sexual union of husband and wife, where the couple promise to care for each other and any children their union produces.” This is, of course, a funny sense of “traditional”. Corvino gives many reasons to doubt the normative use of this “tradition” (21–26), but we might also note such examples as the claim by the great classicist M.I. Finley that both ancient Greece and Rome lacked concepts that line up with common “modern” notions of “family”, and that marriage was a very different idea in both of those societies than in the “modern” world. See Finley, The Ancient Economy, pp. 18–19 (University of California Press, 1984).
In an end-note, Gallagher suggests that if recognizing same-sex marriage did not lead to the problems she suggests it would, she “would no longer care whether the law recognized [same-sex marriages] as such”, even though she would still not think they were marriages (235). Perhaps Gallagher thinks it is too soon to draw inferences from the continued high rates of marriage, relatively low rates of divorces, and low rates of teen pregnancy in Massachusetts. She does not address the issue, making her reasoning seem obscure and apparently a priori.
See Turner v. Safley, 482 US 78 (1987); Zablocki v. Redhail, 434 US 374 (1978); Loving v. Virginia, 388 US 1 (1967); Skinner v. Oklahoma, 316 US 535 (1942); Meyer v. Nebraska, 262 US 390 (1932).
Even here we would have reason to hesitate, if the denial of equal rights would lead to significant dignity harms.
See Thom Brooks, Punishment, pp. 144–148 (Routledge, 2012) for this claim. A similar claim, though not put in quite these terms, seems to me to be inherent in Tommie Shelby’s important paper, “Justice, Deviance, and the Dark Ghetto”, Philosophy & Public Affairs, Vol. 35, No. 2, pp. 126–159 (2007).
It seems more likely that most of the crimenogenic effect of marginalizing homosexual men, assuming there was such, has been reduced by the wider acceptance of homosexuals, and that allowing marriage would be putting the icing on the cake, so to speak.
If, in fact, there are people who oppose same-sex marriage on moral grounds but who are not motivated by bigotry, we might best compare them to people who oppose sex before or outside of marriage on moral grounds. Very few such people, however, believe that their moral beliefs provide good reason for legal regulations of other people’s lives. Such beliefs, then, need be no barrier to the legal recognition of same-sex marriage.
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Nothing in this review reflects an official position of the US Government or the Court of Appeals.
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Lister, M. John Corvino and Maggie Gallagher: Debating Same-Sex Marriage. Criminal Law, Philosophy 9, 727–735 (2015). https://doi.org/10.1007/s11572-013-9281-2
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DOI: https://doi.org/10.1007/s11572-013-9281-2