The liberal case against gay marriage-Peter Brian Barry, The Liberal Case Against Same-Sex Marriage Prohibitions - PhilArchive

Sign in Create an account. Syntax Advanced Search. Abstract 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.

The liberal case against gay marriage

The liberal case against gay marriage

Stefan Collini. Stevens, concurring opinion, Federal Communications Division v. We began to accept inter-ethnic and inter-religious marriages. Read the fucking Constitution. Texas U. Up yours political correctness! Even if these worries can be overcome, the liberal who takes her commitment to Te seriously has to worry about determining whether recognition of SSM seriously burdens anyone else.

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It was a case about race. Nevertheless, its basic familial ideal remains intact: a monogamous, heterosexual, and devotional ayainst directed toward the rearing of children. Gay The liberal case against gay marriage, he said, have "a dignity that can be fulfilled. Rather than anchored by necessity, they are governed by the centrality of freedom. The answer lies in marriage itself, as it has been understood and practiced almost universally. Shell believes that a "liberal" can't be against gay rights. Nothing against them, definitely, but we can't guarantee Kay facial the same experiences. The debate over gay marriage is currently polarized by these two sectarian forces. That's pretty obvious, but like many couples who can't reproduce, and as she acknowledges, they can have children through adoption or IVF. The Constitution will always win out in the end. And yet you eventually got married, caae still are. Even at amusement parks, everyone but the extremely tall can enjoy. She does a good job. It also regulates the treatment of corpses, which may not merely be disposed of like any ordinary animal waste.

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  • Magazine article The Public Interest.
  • Okay: What is the Supreme Court thinking about marriage?
  • Shell The issue of gay marriage brings to a head, like few other issues of our time, a central conflict between two moral positions that interact like seismic plates beneath the surface of contemporary American political life.
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  • What helps me keep an open heart in this very personal to me and gripping debate is the realization, now being increasing verified by science , that conservative and liberal brains work differently.

To browse Academia. Skip to main content. You're using an out-of-date version of Internet Explorer. Log In Sign Up. Peter Brian Barry. Email: pbbarry svsu. It is somewhat less clear what the appropriate liberal strategy is, and should be, in defense of this thesis. The Rational Basis Principle condemns liberty-limiting legislation as indefensible unless that legislation bears a reasonably conceivable rational relationship to a legitimate state interest. I then argue that while SSM prohibitions limit liberty, they bear no reasonably conceivable rational relationship to anything that a liberal would regard as a legitimate state interest.

Accordingly, same-sex marriage prohibitions are rightly dismissed as illiberal. Keywords: liberalism, same-sex marriage, gay marriage, rational basis review, conceivability 1. Introduction Experience suggests that most legal philosophers are not surprised to be told that liberal states cannot permissibly prohibit same-sex marriage henceforth: SSM.

It is less clear how the faithful liberal this thesis. There is an embarrassment of riches here: why should liberals prefer to defend SSM by appeal to one such right rather than some other? Perhaps the most obvious direct strategy to defend SSM is to make a straightforward appeal to a commitment to equality and contend that SSM prohibitions deny homosexual persons equal status. So understood, SSM prohibitions are problematic on liberal grounds for the same reason that racial and gender-based discrimination is: they are inconsistent with a liberal commitment to equality.

Some kinds of discrimination are legally and morally tolerable. A commitment to equal protection is arguably consistent with some kinds of unequal treatment so long as there is a legally and morally sufficient justification for it. My reluctance to appeal to the above strategies signals only my uncertainty about them, not my hostility. I offer a different indirect argument that liberal states must recognize SSM.

I propose an argument rooted American Constitutional law—that area of the law I am most familiar with—that implies that SSM prohibitions are indefensible on liberal grounds. In brief, I contend that SSM prohibitions do not survive a liberalized version of rational basis review and thus that SSM cannot be prohibited justly. Since liberal states must permit what they cannot justly prohibit and since permitting SSM requires its recognition, liberal states must therefore recognize SSM.

Following Dworkin, it is commonly supposed that a liberal state should not promote or justify its actions by appeal to controversial conceptions of the good life. So, it would seem that if a liberal state recognizes SSM it must do so within the boundaries of liberal neutrality. Here is one representative example: The basic rationale for marriage lies in its serving certain legitimate and important interests of married couples.

But many same-sex couples have the same interests, which marriage would serve in essentially the same way. So restricting marriage to opposite-sex couples is a denial of equality. There is no way of justifying this denial of equality without appealing to controversial conceptions of the good such as the moral superiority of heterosexuality or the procreative family ; and it is a basic principle of liberalism that the state should not promote, or justify its actions by appeal to, such controversial conceptions of the good.

This sort of argument puts tremendous pressure on opponents of SSM to identify some neutral rationale for opposing SSM given that a line of liberal thinkers from Mill to Feinberg deny that any rationale will suffice. However, some opponents of SSM argue that recognition of SSM, not its prohibition, is illiberal in virtue of violating the liberal commitment to neutrality Beckwith , Gilboa , Levin , Shell Of course, it is one thing to assert that recognizing SSM is illiberal and another thing to show that this is the case, and I doubt that opponents of SSM can cogently show that recognition of SSM is illiberal Barry But even if opponents of SSM are confused about just what the liberal commitment to neutrality demands, that confusion should ideally be dispelled.

Suppose, for example, that M is a necessary means for realizing S. Finally, suppose that the existence of M depends upon its legal recognition by the state. If neither the recognition of M nor the realization of M and S imposes serious burdens on anyone else and violates no principles of justice, then a liberal state should not legally prohibit M.

Since even reasonable individuals who believe that there is nothing especially morally valuable or virtuous about M would presumably allow that the state should not legally prevent people from satisfying serious desires when the satisfaction of those desires burdens no one and violates no principles of justice, the liberal state need not adopt any controversial view about the good life to justify permitting M.

But, arguably, many individuals have a serious desire to marry their partner who happens to be of the same-sex. And satisfaction of that serious desire requires the recognition of SSM Wedgwood I am sympathetic with this line of reasoning, but it is not unproblematic.

On a coarse-grained description, the relevant desire is simply the desire to marry simpliciter—the same desire that typical opposite-sex couples have Wolfson If the relevant desire is given a coarse-grained reading, some opponents of SSM will object that the state has already provided its citizens with the means to satisfy it; SSM prohibitions do not frustrate the right to marry per se.

But then the demand that liberal states recognize SSM lest they frustrate some serious desire is unfounded. By contrast, if the relevant desire is given a fine-grained rendering then it is much less clear that it really is a serious desire after all.

Even if these worries can be overcome, the liberal who takes her commitment to neutrality seriously has to worry about determining whether recognition of SSM seriously burdens anyone else. By what standard can the liberal distinguish serious burdens from slight and superfluous ones?

The liberal could either appeal to some objective standard for determining whether a burden is genuine and serious or else appeal to the subjective beliefs and values of the complainant. At least, it is difficult to provide a defensible rationale for asserting that some burdens are not genuine or serious without appealing to some conception of the good life.

After all, liberal states do sometimes legitimately limit the liberty of their citizens. A diversion may be instructive. In American constitutional law, legislation that either utilizes a suspect classification such as race or implicates some fundamental right is subject to a stringent test for legitimacy: strict scrutiny. Legislation survives strict scrutiny only if it is a necessary means and narrowly tailored to realize some compelling state interest.

If the relevant interest is not a compelling one or if the legislation is not necessary and narrowly tailored to realize that interest, the legislation does not survive strict scrutiny. Not much legislation meets both of these conditions and not much legislation survives strict scrutiny, but this should strike liberal philosophers as just about right.

Accordingly, liberals have good reason to hope that not much legislation will survive strict scrutiny. The least stringent test for legitimacy is rational basis review, a test that requires only that legislation bears a reasonable relationship to the attainment of a legitimate governmental objective, a rather weaker standard. At least many liberals will similarly find this result attractive. This way of understanding rational basis review arguably renders it so weak as to be effectively toothless.

For example, in Romer v. While the Romer majority found a scarcity of legitimate state interests, Justice Scalia found them in abundance. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, contra bonos mores, i.

Recalling both the FLP and the above suggestion that legislation will survive rational basis review if there is any reasonably conceivable state of facts that could provide a rational basis, I submit that liberal jurists will endorse the following principle: The Rational Basis Principle RBP : If legislation limits liberty then that legislation is illiberal unless it bears a reasonably conceivable rational relationship to a liberally legitimate state interest.

To be clear, endorsing RBP is consistent with thinking that legislation might be illiberal for other reasons— say, because it unnecessarily utilizes suspect classifications or because it implicates a fundamental right.

RBP hardly exhausts concerns about due process or equal protection; it simply constitutes a necessary condition for liberal legitimacy. But if it is going to be useful for present purposes, at least two matters require clarification. Liberal Rational Basis Review First, RBP says nothing about what differentiates liberally legitimate state interests from illegitimate ones.

There is a danger of stipulating the problem away, but liberty-limiting legislation probably does not serve a liberally legitimate state interest unless it prevents something akin to harm or offense—that is, wrongful setbacks to interests or right-violating disliked mental states Feinberg And since it is unclear how unwilling spectators could have their rights violated by consenting adults displaying their genitals to one another behind closed doors, it is not likely that a liberal state has a legitimate interest in prohibiting fully nude dancing.

These results are significant since they suggest, first, that RBP is not a trivial principle, and second, that RBP coheres well with actual liberal intuitions. So far, so good. Clarification is needed for a second reason given that RBP calls for, not a conceivable rational relationship to some liberally legitimate state interest, but a reasonably conceivable rational relationship.

Legislation bears a rational relationship to some interest just in case that legislation tends to promote that interest to some non-trivial degree. But what is it, exactly, to reasonably conceive of such a relationship? Philosophical interest in the thesis that conceivability entails possibility has peaked recently and many philosophers have wondered about its implications for the reducibility of the mental to the physical, the unity of the sciences, the truth of naturalism, and so forth.

While articulating just what is necessary for ideal conceivability is a tricky business, it probably depends on undefeatable justification—that is, justification that cannot be defeated by better reasoning.

Undefeatable justification involves, at least, the absence of familiar cognitive limitations and external impediments to knowledge: it requires the absence of external conditions that undermine justification; it requires that the acquisition of further true justified beliefs will not result in the revision of relevant beliefs, and so forth.

And filling in those details may well be beyond the reach of some subjects. Thus, positively conceiving that P is not an idle exercise of imagination uninformed by relevant facts. All these distinctions can be used simultaneously. Prima facie negative conceivability only requires not being able to rule out P based on initial appearances while something approaching ideal negative conceivability demands not being able to rule out P after rather more consideration.

Prima facie positive conceivability requires only a modest imaginative exercise constrained by rather little while idealized positive conceivability requires a rather complicated and informed imaginative exercise. How, then, should reasonable conceivability be understood? I take it that it requires positive conceivability, not negative conceivability, given that FLP demands that liberty-limiting legislation actually be justified. As such, reasonable conceivability requires more than simply insisting that one cannot rule it out that legislation will tend to some liberally legitimate interest.

Also, reasonable conceivability surely requires more than prima facie conceivability since requiring only prima facie conceivability makes rational basis review a toothless test. But reasonable conceivability does not require ideal conceivability either; generally, that which is reasonable is not ideal.

I submit that reasonable conceivability requires moderate conceivability, something between prima facie and idealized conceivability. Roughly, a subject can moderately conceive of P just in case her belief that P is conceivable will not easily be defeated—that is, just in case her belief that P is conceivable is consistent with the vast majority of other true justified beliefs she has and with true propositions that she could reasonably be expected to believe.

So, whether or not P is moderately conceivable is, to some extent, fixed by certain facts about the actual world; if it is actually the case that some subject would abandon her belief that P is conceivable if she only thought a bit harder or did a bit more research then P is not moderately conceivable.

So long as neither prima facie nor ideal conceivability is required for reasonable conceivability, something like what I am calling moderate conceivability must be appropriate for rational basis review.

It only demands that the reasoning relevant to the evaluation of legislation is subject to familiar epistemic standards.

Unless we entirely suspend reasonable epistemic standards with respect to the evaluation of legislation, it must be the case that legislation survives rational basis review only if it is moderately conceivable. Recall that RBP demands that legislation bears a reasonably conceivable—that is, positively and moderately conceivable—relationship to some liberally legitimate state interest. I submit that RBP is consistent with the legal traditions of liberal states and independently attractive to liberally inclined philosophers.

It certainly is consistent with how courts of liberal states, at least sometimes, actually reason and deliberate. Something like RBP is used to smoke out motivations for legislation based on little more than animosity towards some target group.

For example, SCOTUS has ruled that denying a special zoning permit for the construction of a group home is unconstitutional when based on little more than an irrational prejudice towards the mentally retarded. And as I have argued, RBP demands more than this. The remaining two premises require some discussion.

If disapproval and disgust at the nonthreatening behavior of others is to be the bell-weather of how we apportion rights in society, you will certainly find yourself at the receiving end of unfair discrimination sooner or later. The first position is more or less a traditional Christian one. What is the purpose of opposite-sex marriage for couples who have neither the ability nor the intention to procreate? But what many in the gay rights crowd would be saying is if this lady at 5 foot 2 and eighty pounds wants to be a fireman, don't discriminate against her. Published in The Public Interest in the summer of , it remains highly relevant.

The liberal case against gay marriage

The liberal case against gay marriage

The liberal case against gay marriage. Covering third parties and independent candidates since 2008

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(DOC) The Liberal Case Against Same-Sex Marriage Prohibitions | Peter Brian Barry - haasland.com

Political Correctness represents an imminent threat to freedom of speech, not merely in its legal form where such protections exist but in its civil manifestation as a culture of open discussion and debate where orthodoxies are questioned.

A free marketplace of ideas does not operate efficiently when monopolized, after all. But critics of Political Correctness need to keep in mind a simple truth; the broken clock is right twice a day.

After all, the same policy can be supported for multiple reasons, and there is a perfectly reasonable classical liberal case for same sex marriage. But I am not going to argue the classical liberal case for same sex marriage after all, that would be preaching to the choir; almost everyone reading this article is already familiar with the classical liberal argument on this subject.

Rather, I am going to argue that there is a specifically anti-PC case in favor of legalizing same sex marriage. First, a little background is necessary; in Australia, marriage law is a federal question and there are no enumerated constitutional guarantees of individual rights unlike the United States. This means that marriage laws will have to be changed via the democratic process, either through referendum or via our elected representatives the current postal survey is nonbinding.

A second point which needs to be brought up is that Political Correctness is an elitist ideology this explains why it fits so well with the American progressive tradition. It is an ideology with some intellectual roots in Frankfurt School Marxism; it sees our society as brainwashed and enthralled by a cultural hegemony a la Gramsci. A third point is that Political Correctness makes the fundamental claim that due to the aforementioned cultural hegemony, our society is deeply bigoted the relevant bigotry in this particular case is homophobia.

Simple; a democratic vindication of civil marriage equality becomes irrefutable evidence that the PC narrative is wrong. It defuses the great power that PC holds over people; it would demolish the power of guilt. Let us not mince words; guilt is a useful social control mechanism as the vast wealth and prestige of the Roman Catholic church makes abundantly clear.

The only power any government has is to crack down on criminals. The objective of laying these charges always in a public forum is to induce shame and guilt, to encourage others to join in the shaming, and to force the accused into an act of self-flagellatory public confession for the crime of being born into a society in which they are allegedly not discriminated against. Western society or history, however. In addition, assigning responsibility for the sins of the past to present-day individuals is irrational and an attack on the very concept of morality.

Now, unfortunately there are still some homophobes in Australian society. But they are the minority, and that is precisely the point. If a democratic majority favors changing the law to accept same sex marriage, this dynamites the PC worldview.

If our society is filled to the brim with homophobes, the democratic process dooms same sex marriage. As such, a democratic victory for same sex marriage would validate the tolerance of the average Australian, the openness of Australian civic culture, and make it quite clear that Australians today should not be feeling guilty over the homophobia of the past.

It would be something Australians could be proud of. It would promote classically liberal, civic-nationalist sentiment. Postal surveys are not inexpensive, after all. But there is substantial cultural-symbolic value in the result. It becomes harder to cast Australia as a society where bigotry is normalized when the majority of people embrace tolerance and equality.

It would show the fundamental injustice of throwing the everyday Australian into the Basket Of Deplorables. So for now we are faced with the option of either changing nothing, or expanding the marriage act to allow same-sex couples to wed.

A bedrock social institution is not to be junked on a silly whim. Our language, religion, culture, political debates and priorities, have all changed over time. Oh, and marriage has changed repeatedly over history. Polygamy diminished and was eventually abolished.

We began to accept inter-ethnic and inter-religious marriages. And marriages, which used to be something people did out of social obligation and economic prudence, became thought of as romantic. And having children is no longer thought of as mandatory to marriage or exclusive to it. The institution has already changed substantially over time.

How is opening the institution up to same-sex couples any more drastic than the shifts that have already taken place? The marriage act itself certainly is.

Of course the practice of marriage and weddings goes back before that. But the idea that the government should regulate marriage is novel. Ideally the government should just be a record-keeper and otherwise treat marriage as any other contract. I wish he had argued the classical liberal case rather than this strawman he creates to resemble political correctness. Well written Andrew, especially the Ayn Rand paragraphs which reminds me to dig out her books again.

I respectfully disagree though with your conclusion as history has shown us that the progressives march towards reshaping our society will not be slowed by acceding to their demands. They are not interested in slowing down the deconstruction of time-proven institutions. No doubt their intellectual leaders want more power and control which can only be bad for a free thinking and tolerant society. A for authoritarian. There is nothing that can be done to appease them.

They will juggernaut through to the very end. And how would it in any way advance an authoritarian agenda presuming that religions were left alone to define their particular religious marriages? I merely think that a strong democratic majority for same sex marriage would serve as effective evidence against their worldview.

Rob Darvell…. A lovely, cunning ploy to get people opposed to ssm to support it, believing that a yes vote would cripple political correctness. There are many good libertarian arguments for same-sex marriage. See, Australia is not homophobic! We voted yes. Up yours political correctness! Hurr, hurr, hurr! Read the fucking Constitution. Thanks Andrew. I still have not got round to digging out Introduction to Objectivist Epistemology but I recall Rand or maybe it was Rothbard saying that institutions must have some exclusivity to have any meaning.

I agree with this and am not persuaded that society would be better off having splintering definitions of long accepted Christian institutions. Indeed, I would wager it would be worse off. Anything else smacks to me of political correctness. Would voting yes really strike a blow against the cultural marxists?

Absolutely not. They will view the Yes vote, buoyed by their confirmation bias, as another important victory on their long march. I agree all concepts including institutions must be exclusive by definition things are what they are, not what they are not. But why does that mean civil marriage in particular must remain exclusively for opposite-sex couples?

Is marriage an inherently Christian institution? Marriage exists in every religion and it existed in pre-Christian pagan Europe. Civil marriage is entirely a creation of the State. If its legally identical to an opposite sex civil marriage… why not use the same word?

And yeah, the social justice left will like having same sex marriage. About Latest Posts. Andrew Russell. Andrew Russell is an Economist, Objectivist and political commentator. His legal interests include travel, electronic-industrial music, casino gambling and recreational alcoholism. That, in my opinion, would have to be the strongest argument for a YES vote I have read so far. The constitution says otherwise. Of course, the constitution can be changed. Silly whim?

Gregory, Thank you very much for your response. Gregory, I agree all concepts including institutions must be exclusive by definition things are what they are, not what they are not.

The liberal case against gay marriage