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PART FOUR
CANADIAN AND BRITISH LAW JOURNAL ARTICLES
71 Matthew B. OBrien, Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls,
Political Liberalism, and the Family, 1 BRIT. J. AM. L. STUDIES (Issue 2,
Summer/Fall 2012, May 1, 2012).
2
72 F.C. DeCoste, Courting Leviathan: Limited Government and Social Freedom in
Reference Re Same-Sex Marriage, 42 ALTA. L. REV. 1099 (2005).
64
73 F.C. Decoste, The Halpern Transformation: Same-Sex Marriage, Civil Society, and
the Limits of Liberal Law, 41 ALTA. L. REV. 619 (2003).
90
74 Monte Neil Stewart, Judicial Redefinition of Marriage, 21 CAN. J. FAM. L. 11
(2004).
117





TAB 71

WHY LIBERAL NEUTRALITY PROHIBITS SAME-SEX MARRIAGE: RAWLS,

POLITICAL LIBERALISM, AND THE FAMILY
By Matthew B. O'Brien
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 9'
1
' Circuit Courts 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.
CONTENTS
Introduction
I. Rawls's Account of the Family
II. The Political Function of the Family
Ill. A Publicly Reasonable Argument for Traditional Marriage
IV. Why Arguments for Same-Sex Marriage are Publicly Unreasonable
Conclusion
O'Brien, Matthew B, Why Liberal Neutrality Prohibits Same-Sex MaiTi?ge: Rawls,
Liberalism, and the Family (May I. 2012). The British Journal of Amencan Legal Stud1es, Vol.
1, Issue 2 (Summer/Fall 2012). Available at SSRN: http://ssrn.com/abstract=2136540
001291
WHY LIBERAL NEUTRALITY PROHIBITS SAME-SEX MARRIAGE:
RAWLS, POLITICAL LIBERALISM, AND THE FAMILY
Matthew B. 0 'Brien
INTRODUCTION
In Perry v. Schwarzenegger federal district judge Vaughn Walker
overturned California's Proposition 8 that defined marriage as between a
man and a woman.
1
Among the findings of fact in the case, Walker
includes the following assertion about the illegitimacy of moral judgment
as a justifiable ground for state action:
In the absence of a rational basis, what remains of the
proponents' case is an inference, amply supported by evidence in
the record, that Proposition 8 was premised on the belief that
same-sex couples simply are not as good as opposite-sex couples.
FF 78-80. Whether that belief is based on moral disapproval of
homosexuality, animus towards gays and lesbians or simply a
belief that a relationship between a man and a woman is
inherently better than a relationship between two men or two
women, this belief is not a proper basis on which to legislate.
See Romer, 517 U.S. at 633; Moreno, 413 U.S. at 534; Palmore
v. Sidoti, 466 U.S. 429, 433 (1984) ("[T]he Constitution cannot
control [private biases] but neither can it tolerate
None of Walker's citations in Romer, Moreno, or Palmore actually support
the assertion that moral judgment, as such, is an unreasonable basis for
legislation. Indeed, how could they? State governments have always
Veritas Post-Doctoral Fellow, Matthew J. Ryan Center, Department of Political
Science, Villanova University; Ph.D., Philosophy, The University of Texas at
Austin, 20 II; M.A., Philosophy, The University of Texas at Austin, 2008; A.B.,
Philosophy, Princeton University, 2003. I am indebted to Audrey Pollnow for
research assistance with this article, as well as to comments at various stages of
revision from Michael Fragoso, Sherif Girgis, David Bernard, Dr. Matthew
Franck, Professor Ken I. Kirsch, Dr. Peter Wicks, Daniel Mark, Professor Robert
T. Miller, and especially to Professor Frank Micheiman and two other reviewers
for the Journal who remain anonymous I also owe thanks to audiences at the
University of Notre Dame Center for Ethics & Culture, The University of Texas at
Austin, Department of Philosophy, and the James Madison Program, Department
ofPolitics, Princeton University, where earlier versions of this paper were
presented; and to the support of Professor Colleen Sheehan, director of the
Matthew J. Ryan Center, under whose auspices I had the time to complete this
project.
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010).
2 !d. at I 002 (emphasis added).
2
Electronic copy available at: http://ssrn.com/abstract=2136540
001292
exercised the traditional "police powers" over public health, safety, and
morals, however broadly or narrowly the courts have construed them.
Romer, Moreno, and Palmore each disqualifies animus as a rational basis,
but none of them makes the claim, as Walker does, that "moral
disapproval" or judgments of ethical superiority are themselves equivalent
to irrational animus.
In the 9th Circuit Court's decision upholding Walker's ruling on
appeal (now as Perry v. Brownt Judge Stephen Reinhardt, writing for the
2-1 judgment of the panel, amplifies Walker's assertion. Reinhardt notes
that California's Proposition 8 is not subject to any heightened scrutiny,
because the U.S. Supreme Court has never held that sexual orientation is a
suspect classification. Rather, he argues that Proposition 8 is subject to the
lower hurdle of rational basis review, which it nevertheless fails to clear.
Although Reinhardt admits that "[a]s a general rule, states may use their
police powers to regulate the 'morals' of their population," straightaway he
withdraws this concession and echoes Walker by asserting that moral
judgment as such does not constitute a legitimate state interest, and that
"animus, negative attitudes, fear, a bare desire to harm, and moral
disapproval" are equivalently unconstitutional grounds for legislation.
4
Reinhardt's evidence for his assertion is a remark by Justice O'Connor in a
concurrent opinion in Lawrence v. Texas: "Indeed, we have never held that
moral disapproval, without any other asserted state interest, is a sufficient
rationale under the Equal Protection Clause to justify a law that
discriminates among groups ofpersons."
5
Reinhardt speculates that "[t]he
Lawrence majority opinion seems to have implicitly agreed" with
O'Connor's remark, which thus entails that moral judgment as such is an
illegitimate state interest according to Supreme Court precedent.
6
Walker and Reinhardt's arguments against moral judgment as a
legitimate state interest are novel developments in constitutional law.
Nevertheless, the thought that moral approval and disapproval as such are
somehow an illegitimate basis for state action is a very familiar one. The
thought arises not from federal case law, but liberal political theory, where
the thought is expressed in more sophisticated fashion as the political
principle of liberal neutrality.
7
However immediate or derivative the
influence of liberal political theory upon Walker and Reinhardt's thinking,
their decisions in Perry effectively reinterpret the traditional judicial
standard of rational basis review in terms of a liberal neutrality principle. I
point this out not in order to raise a question about the legitimacy of
informing constitutional interpretation with philosophical considerations
about justice-this may be inevitable anyway-but in order to show the
3
Perry v. Brown, 671 F. 3d 1052 (9th Cir. 2012).
4
!d. at II 02 (citing Romer v. Evans, 517 U.S. at 635).
5
Lawrence v. Texas, 539 U.S. 558 at 582.
6
Perry, 671 F. 3d at 1102.
7
For an overview of liberal neutrality, see e.g. the classic essays collected in,
PERFECTIONISM AND NEUTRALITY: ESSAYS IN LIBERAL THEORY (George Klosko &
Steven Wall eds.,2003).
3
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real impact of academic theorizing about law and justice upon judicial
practice, especially in the contentious public debate about same-sex
marriage. What I do wish to question is whether liberal neutrality as a
constitutional principle, which seems so attractive to many people, has the
implications for the marriage debate that philosophers, constitutional
theorists, and the 9
1
h Circuit judges think that it does.
What is the same-sex marriage debate really about? The legal
institution of marriage has the expressive effect of socially recognizing,
promoting and dignifying the nature of the relationships that the law deems
eligible for marriage. The expressive effect of legal marriage is what the
debate over same-sex unions is really about.
8
As it is playing out in the
United States and elsewhere, the debate is about which rival conception of
sexual value and identity should harness law's expressive effect and be
reinforced by the law's coercive and pedagogical powers. Traditionalists,
on the one hand, want the law to preserve its historic definition of marriage
as a sexually complementary and conjugal union between a man and a
woman. Where the law does this it has had the effect of reinforcing
heterosexuality as socially normative and bolstering traditional gender
roles. The revisionists, on the other hand, fall into one of three camps.
The first camp wants the law to redefine "marriage" as any adult affective
sexual relationship in which two parties of whichever sex wish to be
recognized by the state.
9
The second camp wants to redefine marriage by
introducing "plural" or polygamous marriage in addition to two-person
same-sex unions.
10
The third camp wants to disestablish civil marriage
altogether or remove intimate associations from state concern.'' Where the
B See Martha Nussbaum, A Right to Marry? Same-Sex Marriage and Constitutional
Law, DISSENT, (Summer 2009), available at
http://www.dissentmagazine.org/article/?article=l935. Cf. Adam Haslett, Love
Supreme, THE NEW YORKER, May 31, 2004, at 19 (("As a political and cultural
matter, [same-sex marriage cases] are contests over something less easy to codify:
the official recognition of love.... The state is being asked not only to distribute
benefits equally but to legitimate gay people's love and affection for their partners.
The gay couples now marrying in Massachusetts want not only the same
protections that straight people enjoy but the social status that goes along with the
state's recognition of a romantic relationship") quoted in William C. Duncan,
Marriage and the Utopian Temptation, 59 RUTGERS L. REV. 265, 272 (2007)).
9
See, e.g., ANDREW SULLIVAN, VIRTUALLY NORMAL: AN ARGUMENT ABOUT
HOMOSEXUALITY (1996) (explaining how such redefinition just catches up with
contemporary social practice and has fundamentally conservative implications);
Jonathan Rauch, For Better or Worse? The Case for Gay (and Straight) Marriage,
THE NEW REPUBLIC (May 6, 1996) at 18 (arguing that defenders of traditional
marriage are actually better served, by their own lights, in endorsing gay marriage).
Ill See Beyond Same-Sex Marriage: A New Strategic Vision for All Our Families &
Relationships, BEYONDMARRIAGE.ORG {July 26, 2006) available at
http://beyondmarriage.org/full_statement.html. Signatories include influential
figures such as Cornel West, Gloria Steinem, and Barbara Ehrenreich.
11
See, e.g., David Boaz, Privatize Marriage: A Simple Solution to the Gay-
Marriage Debate, SLATE (April 25, 1997) available at
4
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law follows any of the revisionist camps, it has the effect of inducing social
acceptance of homosexuality as normal, undermining traditional gender
roles, and legally establishing a liberal conception of moral equality.
12
Participants in the marriage debate sometimes say that traditionalists
and revisionists agree upon the importance of marriage, but differ over who
should have access to it. Such "agreement" is specious and merely verbal,
however. It conceals the depth of the conflict and the significance of what
is at stake as the debate is engaged at present: if one side wins, then the
other side necessarily loses. The winner-take-all terms in which this debate
is posed are why it is so acrimonious. As Ellen Willis, a same-sex
marriage advocate, puts it, "conferring the legitimacy of marriage on
homosexual relations will introduce an implicit revolt against the institution
into its very heart."
13
The traditionalists and the revisionists alike propose
to enshrine in the law a deeply controversial facet of their incompatible
"comprehensive doctrines," to use John Rawls's term, about the valuable
forms of sexuality, their place in human flourishing, and the nature of
moral equality.
14
http://www .slate.com/articles/briefing/articles/1997 /04/privatize marriage.html
(arguing for a libertarian "privatization" of marriage); TAMARA METZ, UNTYING
THE KNOT: MARRIAGE, THE STATE, AND THE CASE FOR THEIR DIVORCE (20 I 0)
(explaining that liberals and gay rights activists should abolish legal marriage);
MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY,
AND OTHER TWENTIETH CENTURY TRAGEDIES, (I 995) (explaining that the very
institution of legal marriage harms women).
12 As gay marriage advocate Victoria A. Brownworth says, "[President George W.]
Bush is correct ... when he states that allowing same-sex couples to marry will
weaken the institution of marriage .... It most certainly will do so, and that will
make marriage a far better concept than it previously has been." Victoria A.
Brownworth, Something Borrowed. Something Blue: Is Marriage Right for
Queers? in I Doll DON'T: QUEERS ON MARRIAGE 53, 58-59 (Greg Wharton & Ian
Philips eds., 2004).
13 Ellen Willis, Can Marriage Be Saved? A Forum, THE NATION (July 5, 2004) at
16. Gay activist Michelangelo Signorile is even more explicit: he argues that gay
couples "demand the right to marry not as a way of adhering to society's moral
codes but rather to debunk a myth and radically alter an archaic institution." The
strategy is for gay couples "to fight for same-sex marriage and its benefits and
then, once granted, redefine the institution of marriage completely[, because the]
... most subversive action lesbians and gay men can undertake ... is to transform
the notion of 'family' entirely." Michelangelo Signorile, Bridal Wave, OUT (Dec.-
Jan. 1994)at68, 161.
14 A "comprehensive doctrine" in this technical sense includes "conceptions of
what is of value in human life, and ideals of personal character, as well as ideals of
friendship and of familial and associational relationships, and much else that is to
inform our conduct, and in the limit to our life as a whole. A conception [of the
good] is fully comprehensive if it covers all recognized values and virtues within
one rather precisely articulated system; whereas a conception is only partially
comprehensive when it comprises a number of, but by no means all, nonpolitical
values and virtues and is rather loosely articulated," JOHN RAWLS, POLITICAL
LIBERALISM 13 (I 995).
5
001295
The Rawlsian theory of political liberalism provides a principled way
to prescind from the socially divisive, zero-sum terms in which the
marriage debate is now engaged. 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. Political liberalism has the
resources to propose an alternative deliberative framework for resolving the
debate that treats the opposing parties equally, because the framework's
justification is neutral relative to divergent comprehensive doctrines. At
the center ofthis framework is the ideal of public reason, which requires
that arguments over the legal definition of marriage, like other arguments
over matters of basic justice, be "publicly reasonable."
15
That is, marriage
arguments must be acceptable from citizen's different viewpoints within
the various comprehensive doctrines that overlap to form the public
political culture of liberal democracies. The arguments must not depend
essentially upon controversial facets of any comprehensive doctrine as
such.
Granted that the actual terms of the marriage debate today are publicly
unreasonable, because all sides appeal to their incompatible comprehensive
doctrines, what would happen if the debate were reconceived along the
lines of political liberalism? When this question has been asked, Rawlsians
and their fellow travelers such as Walker and Reinhardt have concluded
that fairness requires the politically liberal state to revise the legal
definition of marriage to include (at least) homosexual unions.
16
The
burden of this essay is to show the contrary. In fact, political liberalism
and its ideal of public reason, rightly understood, prohibit the legal
recognition of homosexual unions as civil marriages. The upshot is that
even if the decisions in Perry are justified in construing the rational basis
review in terms of liberal neutrality, this construal provides no grounds for
endorsing same-sex marriage. In fact, to the extent that the rational basis
standard in U.S. constitutional jurisprudence includes neutrality, the courts
15 Public reason "is a view about the kind of reasons on which citizens are to rest
their political cases in making their political justifications to one another when they
support laws and policies that invoke the coercive powers of government
concerning fundamental political questions." John Rawls, The Idea of Public
Reason Revisited, 64 CHICAGO L. REV. 765, 795 (1997).
16
Elizabeth Brake, Minimal Marriage, 120 ETHICS 302, 312 (20 I 0) ("The ban on
arguments which depend on comprehensive conceptions of the good precludes
appeal to the special value of long-term dyadic sexual relationships, and without
such appeal, . . . restriction of marriage to such relationships cannot be justified.").
See also, Linda C. McClain, Deliberative Democracy, Overlapping Consensus,
and Same-Sex Marriage, 66 FORDHAM L. REV. 1241, 1244-52 (1998) (arguing that
Rawlsian liberalism requires gay marriage); Kory Schaff, Equal Protection and
Same-Sex Marriage, 35 JOURNAL OF SOCIAL PHILOSOPHY 133, (2004) (explaining
how Fourteenth Amendment claims for equal protection support gay marriage).
Later on I will discuss the purportedly Rawlsian arguments of Samuel Freeman,
Frank Michelman, Stephen Macedo, Veronique Munoz-Darde, and Elizabeth
Brake.
6
001296
have a positive legal duty to strike down federal and state statutes enacting
same-sex marriage as unconstitutional.
I will argue that there are two reasons why liberal neutrality is
incompatible with same-sex marriage: the first reason is that all available
arguments in favor of same-sex marriage depend essentially upon
controversial moral values and principles drawn from comprehensive
doctrines about the good life. These arguments are therefore illegitimate
grounds for state action in a liberal democracy marked by reasonable
pluralism. Traditional marriage, however, can be defended in terms of
public reasons. The most familiar defenses that traditionalists give are not
publicly reasonable, as I will show in a moment, but the defense I propose
here is publicly reasonable. There is a legitimate, politically liberal state
interest in ensuring the orderly reproduction of society over time. This
interest entails two public responsibilities: first, ensuring a sufficient and
sustainable birth rate, and second, ensuring the just and effective rearing of
children into capable citizens. The second responsibility, understood in
politically liberal terms, requires that citizens develop what Rawls calls
"the two moral powers." These are the power to exercise a sense of justice
as fairness and the power to form one's own reasonable comprehensive
conception of the good. Although there are alternatives to Rawls' account
of public reason, such as the work of Gerald F. Gaus, for example, it is
worth focusing upon Rawls' account because it is the most influential.
17
Furthermore, many of the main features of Rawls' theory that I will appeal
to are independently plausible, as I hope to show.
My specific claim is that the two aforementioned responsibilities
provide sound public reasons for reaffirming the conception of civil
marriage that happens to be the traditional one, by legally recognizing and
promoting families headed by two married parents who are the biological
mother and father of their children. Rawls himself is very clear that any
candidate conception of legal marriage must be specified in terms of the
publicly reasonable, limited state interest in marriage and the family as the
organ of orderly social reproduction. By contrast, the politically liberal
state has no legitimate interest in promoting the personal intimate
relationships of adults as such, but arguments in favor of same-sex
marriage wrongly assume that it does. In a pluralistic democracy regulated
by the ideal of public reason, there is no legitimate state interest in singling
out, recognizing and promoting as civil marriages specifically homosexual
relationships, because doing so privileges them uniquely among intimate
relationships generally.
My argument will proceed by taking for granted the core of political
liberalism: viz., that there is a purely "political" conception of justice, in
Rawls's special sense of that term, and public reason is the regulatory ideal
for legitimate state action on matters of basic justice and constitutional
17
Cf GERALD F. GAUS, THE ORDER OF PUBLIC REASON: A THEORY OF FREEDOM
AND MORALITY IN A DIVERSE AND BOUNDED WORLD (20 I 0); PUBLIC REASON
(1998, Fred D'Agostino & Gerald F. Gaus, eds.).
7
001297
essentials. Public reason is central to political liberalism because, as Rawls
says, it is a pluralistic democracy's form of civic friendship that constitutes
the political community, binding citizens together with mutual respect and
equal concern, in spite of their differing religious and philosophical
worldviews.
18
I will sketch a case against same-sex marriage developed
from Rawls's discussion of the family that, unlike the most familiar
arguments for traditional heterosexual marriage, satisfies the strictures of
public reason.
I will summarize Rawls's account of the family in Section I, tracing its
maturation from his early to later work, and outline his response to feminist
critics of his account. In Section II I will show how within political
liberalism the legitimate state interest in the family is functional, as the
organ of orderly social reproduction. In Section III I will defend my claim
that defining civil marriage as the conjugal union between a man and a
woman is necessary in order for the state to ensure sustainable procreation
and education of children in terms of the two moral powers. In support of
my argument, I will appeal to and develop a number of insightful
reflections about kinship and the family that J. David Velleman has
sketched in a recent series ofarticles.
19
Finally, in Section IV I will survey
the best available arguments for same-sex marriage and show how they,
unlike my argument in Section III, invariably make illicit appeals to
comprehensive doctrines and are thereby incompatible with the moral
demands of pluralistic democracy.
Before addressing Rawls' account of the family, it will be helpful to
contrast the form and content of a politically liberal argument with the
more familiar arguments against legally recognizing same-sex unions as
marriages. The most prominent philosophical arguments against same-sex
marriage (and against the morality of same-sex acts generally) are those
arguments advanced by John Finnis, Robert P. George and other moral and
legal theorists in the natural law tradition.
20
Mary Geach, in a more
Aristotelian vein, has offered similar arguments.
21
One of the chief
IO RAWLS, supra note 14, at 4 70.
l9 J. David Velleman, Narrative Explanation, 112 (1) THE PHILOSOPHICAL REVIEW
(2003); J. David Velleman, Family History, 34 PHILOSOPHICAL PAPERS 357
(2005); J. David Velleman, Persons in Prospect II: The Gift of Life, 36
PHILOSOPHY & PUBLIC AFFAIRS 245 (2008).
2o Perhaps the clearest statement of the natural law argument for traditional
marriage is by Sherif Girgis, Robert P. George, and Ryan T. Anderson. See Sherif
Girgis eta!., What is Marriage? 34 HARV. J. L. & PUB. POL'Y 245 (2010).
21 See Mary Geach, Marriage: Arguing to a First Principle in Sexual Ethics, in
MORAL TRUTH AND MORAL TRADITION 178 (L. Gormally ed., 1994); Mary Geach,
Lying with the Body, 91 THE MONIST 523 (2008); see also Francis Beckwith, Legal
Neutrality and Same-Sex Marriage, 7 PHILOSOPH lA CHRISTI 19 (2005) (explaining
a traditional Christian natural law conception of marriage); Roger Scruton,
Sacrament and Sacrilege in THE MEANING OF MARRIAGE (Robert P. George &
Jean Bethke Elshtain eds., 2005) (arguing for a traditional conception of marriage
by appealing to anthropology and phenomenology); ROGER SCRUTON, SEXUAL
8
001298
complaints about natural law arguments is that they rely upon contestable
metaphysical premises about human nature, because they require endorsing
a version of Aristotelian-Thomistic naturalism and a moralized conception
of practical rationality.
22
From the perspective of political liberalism,
arguments from such premises face a dilemma: first, they are
straightforwardly implausible, critics say, yet even if they are true, the
appeal to such controversial metaphysical premises as a basis for legal
action is unjust in a contemporary democratic society marked by moral and
religious pluralism.
23
Legislating by appeal to some controversial
philosophical or religious vision of the good life fails to treat as equals
those citizens who do not subscribe to that vision.
24
Therefore, in order to
treat citizens fairly legislation should appeal only to those more limited
grounds that reasonable citizens could accept by their own lights.
If Rawls's political liberalism or something like it is correct, then even
if the natural law arguments about sexual morality are sound, they still fail
in the political realm to justify restricting civil marriage to heterosexual
couples because such arguments appeal to a controversial comprehensive
doctrine about human flourishing, since it is only from appeals to the
natural sexual complementarity that natural law theorists are able to
conclude that civil marriage should be defined as between one man and one
woman.
25
There are other philosophical theories of sexual morality in
addition to the natural law tradition-notably the phenomenological
theories of Roger Scruton and Aurel Kolnai, for example-which are also
critical of homosexual acts and same-sex marriage.
26
These theories are no
less "comprehensive" in their philosophical presuppositions than natural
law, however, so they are equally impugned by political liberalism as
grounds for legislation in a pluralistic democracy. There are of course
religious conceptions of marriage that define marriage as an exclusively
male-female union, but these conceptions are manifestly nonpublic from
DESIRE: A PHILOSOPHICAL INVESTIGATION (2006) (arguing that homosexual desire
is ethically suspect because its object is not essentially "other").
22 See Girgis et al., supra note 20 at 248-260; see also ROBERT P. GEORGE &
PATRICK LEE, BODY -SELF DUALISM IN CONTEMPORARY ETHICS AND POLITICS
(2008) (presenting a more extended treatments of Aristotelian-Thomistic
philosophical anthropology); JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS
at 100-133 (1980) (offering an account of"practical rationality").
2
3
See Steven Macedo, Homosexuality and the Conservative Mind, 84
GEORGETOWN L.J. 261 (1995) Paul Weithman, Natural Law, Ethics and Sexual
Complementarity in SEX, PREFERENCE AND FAMILY 227 (Martha Nussbaum &
David Estlund eds., 1997).
H See, e.g., Ronald Dworkin, Liberalism in PUBLIC AND PRIVATE MORALITY 60
(Stuart Hampshire ed., 1978).
25 See Robert P. George & Christopher Wolfe, Natural Law and Public Reason in
NATURAL LAW AND PUBLIC REASON (Robert P. George & Christopher Wolfe eds.,
2005)
26 See Scruton, supra note 21 and SCRUTON, supra note 21; AUREL KOLNAI,
SEXUAL ETHICS (Francis Dunlop ed., 2005).
9
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the perspective of political liberalism and ineligible as grounds for
legislation.
27
For these reasons philosophers, political theorists, and constitutional
lawyers alike have concluded that Rawlsian political liberalism mandates
same-sex marriage as a requirement of basic justice. The significance of
this conclusion goes beyond mere academic issues debated among idle
theoreticians. For as Stephen Macedo has observed, "The insistence on
public reasonableness is at the core of liberal constitutionalism and helps
explain the importance of the political power of the courts and of judicial
review."
28
In the United States the legal recognition of same-sex unions as
marriages has proceeded almost entirely through the action of state and
federal courts or executive officials, without and often against considerable
democratic majorities.
29
These courts and officials have justified the
introduction of same-sex marriage by appealing to moral ideals of fairness
and equality, which they purport to have found implicit in state and federal
constitutional provisions regarding equal protection and due process of law.
These interpretations of such constitutional provisions have often been
justified along Rawlsian lines, as Rawls himself urges: "in a constitutional
regime with judicial review, public reason is the reason of its supreme
court," and "the supreme court is the branch of government that serves as
the exemplar of public reason."
30
In this way and in others Rawlsian
political liberalism, which dominates contemporary Anglophone political
thought, has extended its influence to the actual practice of constitutional
law by justifying an expansive moral reading of constitutional provisions.
Legal practitioners have shown an increasing willingness to make the ideal
of public reason judiciable, and the issue of same-sex marriage is a prime
example of this tendency. Rawls himself remarked that the judiciary
should be the exemplar of public reason; many American judges like
Walker and Reinhardt seem primed to take his advice.
Rawls's followers, however, have failed to appreciate that although
the standard natural law case against same-sex marriage violates public
reason by appealing to comprehensive philosophical doctrines, so too do all
the available arguments/or same-sex marriage.
31
All available
2
7
For a concise account and defense ofthe traditional Christian understanding of
marriage, see J. Budziszewski, The Illusion of Gay Marriage, 7 PHILOSOPHIA
CHRISTI 46 (2005).
28
Stephen Macedo, Homosexuality and the Conservative Mind, 84 GEO. L.J. 261,
299 (1995-1996) ..
29
The one exception is the recent example of the State ofNew York, which
established same-sex marriage legislatively on July 24, 2011, Marriage Equality
Act (AB A08354).
30 Rawls, supra note 14, at 231.
31 Of course natural law theorists have argued against public reason, or argued that
it should be reformulated to allow for natural law arguments. See, e.g., John
Haldane, The Individual, the State and the Common Good, 13 SOCIAL PHILOSOPHY
& POLICY, 59 (1996) (making the case against public reason); George & Wolfe,
10
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justifications for same-sex marriage appeal to different varieties of
comprehensive doctrines about, e.g., sexual liberation or personal
autonomy. Nonetheless there remains a persuasive and publicly reasonable
case for preserving marriage as a legal union between a man and a woman,
which is what I propose to demonstrate here.
If the foregoing contention is correct, why have Rawls's followers not
recognized that political liberalism prohibits same-sex marriage? I suspect
that the reason is threefold: firstly, Rawls's followers have almost
universally failed to ask why the state has a legitimate interest in marriage
at all, but without first answering this question the issue of same-sex
marriage cannot be resolved; secondly, they have failed to attend closely to
the implications of Rawls's own functional definition of the legitimate state
interest in the family; thirdly, most Rawlsian political liberals are also
comprehensive liberals, and so they are prone to read their own private
liberal convictions into the "purely political" conception of justice, which is
supposed to be free from such private convictions.
I. RAWLS'S ACCOUNT OF THE FAMILY
In order to understand Rawls's account of the family, it is important to
grasp how political liberalism is supposed to adjudicate policy
disagreements like the debate over same-sex marriage. Political liberalism
as such does not demand or prohibit any specific marriage policy. This is
because public reason applies to and imposes strictures upon what sorts of
grounds may be invoked to justify policies, but it does not actually speak to
specific policy programs themselves. Unlike liberalism as a
comprehensive doctrine, liberalism as a "purely political conception of
justice," as Rawls puts it, does not provide a substantive policy platform,
but rather it regulates how contemporary pluralistic democracies should
make substantive policy by providing a deliberative framework that ensures
reasonable citizens participate politically on fair and equal terms. Political
liberalism is thus a form of deliberative democracy.
32
As Rawls
emphasizes:
Public reason may also seem too restrictive because it might seem
to settle questions in advance. However, it does not, as such,
determine or settle particular questions of law or policy. Rather, it
specifies the public reasons in terms of which such questions are to
be decided.
33
supra note 25, at 51-74 (arguing that public reason should be expanded in order to
include natural law arguments).
32 See AMY GUTMANN & DENIS THOMPSON, WHY DELJBERA TIVE DEMOCRACY?
(2004).
33 RAWLS, supra note 14, at Iiii. See also Frank Michelman, Rawls on
Constitutionalism and Constitutional Law in THE CAMBRIDGE COMPANION TO
RAWLS 413-414 (Samuel Freeman ed., 2003) ("[I]n a company of free and equal
persons divided by a plurality of comprehensive ethical views, it cannot be
II
001301
No available arguments for legal recognition of same-sex unions can be
specified in terms of public reasons because all essentially appeal to
controversial comprehensive doctrines about sexual value. At first blush
this claim is no doubt surprising. Rawls himself was a liberal and his
passing remarks about same-sex unions suggest that he found them
unproblematic. Furthermore, the few discussions of same-sex marriage in
the voluminous secondary literature on Rawls of which I am aware
extrapolate Rawls's casual remarks and conclude that political liberalism
allows legal recognition of same-sex marriage, and some go further and
argue that political liberalism demands it.
34
It is important to recall,
however, that even by his own lights Rawls's profession of liberalism as a
comprehensive doctrine includes commitments to moral positions which a
"purely politically liberal" conception of justice would circumscribe from
the public sphere, and the recommendation of same-sex marriage may be
just one of those moral positions.
If both the comprehensive liberal arguments for same-sex marriage
and the natural law arguments against it violate the strictures of public
reason, it is natural to conclude that marriage, as a legal institution, should
be disestablished entirely.
35
Perhaps there is no publicly reasonable
justification for the state to be in the marriage business to begin with. If
this is so, then marriage should be reconceived as a private form of
voluntary association available to those who seek it on whatever terms they
decide, but it should be detached from the public concerns of the state.
Rawls, however, is quite explicit that the politically liberal state must be in
the marriage and family business, and his reasons for affirming the state's
interest are sound. His treatment of the family and the state's interest in it
changed over the course of his career, however, and it is worth tracing his
development.
Rawls wrote two big books defending different versions of his theory
of ')ustice as fairness," A Theory of Justice (1971) and Political Liberalism
(1994).
36
By his own admission the former book fails by the standard of
the latter, since A Theory of Justice depends upon a comprehensive liberal
doctrine about human good. By the time Rawls published Political
reasonable to allow any subgroup a privilege of using political authority to shape
the basic structure [of political society] in accordance with that group's special
ethical convictions at the cost of equal citizenship for all; that 'neutrality of aim' is
the only reasonable approach to adjusting the claims to liberty of equally respected
citizens whose ethical convictions differ and sometimes collide; that, in sum, a
morally defensible answer to the problem of political legitimacy in modern free
societies does not come without its price, and the price is the constraint of public
reason .... ").
3+ /d.
35 See TAMARA METZ, supra note II; Veronique Munoz-Darde, Is the Family to be
Abolished Then?, PROCEEDINGS OF THE ARISTOTELIAN SOCIETY (1998).
3u The latter was further developed in JOHN RAWLS, JUSTICE AS FAIRNESS: A
RESTATEMENT (Erin Kelly ed., 2001).
12
001302
Liberalism in 1994, the American "culture wars" were in full swing and an
account of justice like the one in Theory, which relied upon prior
acceptance of controversial liberal moral ideals such as individual
autonomy and economic egalitarianism, failed to address what Rawls now
took to be the central problem of political philosophy for modern western
democracies, viz., securing agreement among reasonable people about
principles of fair political cooperation in order to ensure a stable and just
democratic society.
37
The historical context of Rawls's work is suggestive:
A Theory of Justice was published two years before the U.S. Supreme
Court handed down Roe v. Wade,
38
which stoked the culture wars, and
Political Liberalism was published two years after Planned Parenthood v.
Casey,
39
which aggravated them further.
Although A Theory of Justice relied too heavily upon comprehensive
liberal moral doctrines, there is a different sense in which it was not
comprehensive enough in its treatment of the basic structure of social life.
As critics pointed out, Rawls neglected both the role of the family in
sustaining a just society over generations and the possible application of
principles of justice within the family itself. With respect to the first issue,
Annette Baier points out that
Rawls's sensitive account of the conditions for the development of
that sense of justice needed for the maintenance of his version of a
just society takes it for granted that there will be loving parents
rearing the children in whom the sense of justice is to develop.
"The parents, we may suppose, love the child, and in time the child
comes to love and trust the parents." Why may we suppose this?
Not because compliance with Rawls's version of our obligations
and duties will ensure it. Rawls's theory, like so many other
theories of obligation, in the end must take out a loan not only on
the natural duty of parents to care for children (which he will have
no trouble including) but on the natural virtue of parental love (or
even a loan on the maternal instinct?). The virtue of being a loving
3
7
The question which POLITICAL LIBERALISM attempts to answer is, 'How is it
possible for there to exist over time a just and stable society of free and equal
citizens who remain profoundly divided by reasonable religious, philosophical, and
moral doctrines?' (4). By contrast, A THEORY OF JUSTICE "explicitly attempts to
develop from the idea of the social contract, represented by Locke, Rousseau, and
Kant, a theory of justice .... A Theory of Justice hopes to present the structural
features of such a theory so as to make it the best approximation to our considered
judgments of justice and hence to give the most appropriate moral basis for a
democratic society. Furthermore, justice as fairness is presented there as a
'comprehensive doctrine' (although the term 'comprehensive doctrine' is not used
in the book) in which all the members of its well-ordered society affirm that same
doctrine. This kind of well-ordered society contradicts the fact of reasonable
pluralism and hence Political Liberalism regards that society as impossible." JOHN
RAWLS, LAW OF PEOPLES 179 (200 I) (emphasis added).
38
410U.S.l13(1973).
39
505 u.s. 833 (1992).
13
001303
parent must supplement the natural duties and the obligations of
justice, if the just society is to last beyond the first generation.
40
In Political Liberalism Rawls acknowledges this problem and attempts to
correct it by incorporating the family into his account of the basic structure
of society and emphasizing the family's functional role in reproducing
society over time.
41
Rawls also attempts to respond to the second
allegation of neglect, often leveled by feminist theorists, that he gives an
insufficiently radical scope to the principles of justice and so prevents
reforming gender relations within the family. On this point Rawls more or
less holds the ground he staked out in Theory.
42
Most discussion of
Rawls's treatment of the family has centered on this second issue, viz., of
justice applied within the family. In this essay I focus on the first.
II. THE POLITICAL FUNCTION OF THE FAMILY
In A Theory of Justice Rawls states, "[h]owever attractive a conception
of justice might be on other grounds, it is seriously defective if the
principles of moral psychology are such that it fails to engender in human
beings the requisite desire to act upon it. "
43
A candidate conception of
justice must be a conception of justice adequate to real human beings, and
not to some merely imaginable rational creature. Although Rawls makes
this point in terms of moral psychology, the point needs to be generalized,
in light of Baier's criticism quoted above, in terms of sociology: that is,
however attractive a conception of justice might be on other grounds, it is
seriously defective if the principles of sociology are such that a "just"
society fails to reproduce itself in an orderly way over time. This
implication is precisely what Rawls comes to recognize in his later work.
As he notes in Justice as Fairness, "the family is part of the basic structure
[of society], the reason being that one of its essential roles is to establish
the orderly production and reproduction of society and of its culture from
one generation to the next."
44
Political responsibility for ensuring the
orderly reproduction of society is not optional within Rawls's political
liberalism. Unlike so many liberal theorists, Rawls in his later work
attends to the social imperative of providing for society's future
generations:
a political society is always regarded as a scheme of cooperation
over time indefinitely; the idea of a future time when its affairs are
40
Annette Baier, What do Women Want in a Moral Theory?, in VIRTUE ETHICS
267-68 (Roger Crisp & Michael Slote eds., 1997).
41
RAWLS, supra note 14 at 258. This latter discussion comes chiefly in the later
essay, Rawls, supra note 15.
42
See SAMUEL FREEMAN, RAWLS (2007) (describing how Rawls defended certain
aspects of his early claims from later feminist criticisms).
43
JOHN RAWLS, A THEORY OF JUSTICE 398 (2d ed., 1997).
44
!d. at 162.
14
001304
to be wound up and society disbanded is foreign to our conception
of society. Reproductive labor is socially necessary labor.
Accepting this, essential to the role of the family is the
arrangement in a reasonable and effective way of the raising and
caring for children, ensuring their moral development and
education into the wider culture.
45
The purely political liberal conception of justice bears an important, if
limited, resemblance to Aristotelian justice, and it is worth fleshing out this
comparison. Unlike Aristotelian justice, the purely political conception
eschews grandiose metaphysical commitments about human nature and
presupposes a basic separation between political and comprehensive values
that is a given historical feature of modern pluralistic democracies. Like
Aristotelian justice and unlike some perfectionist forms of liberal
individualism, however, the purely political conception acknowledges the
sociality of human nature by making orderly social reproduction by means
of the family a desideratum for any candidate theory ofjustice.
46
Thus
political liberalism presupposes a non-trivial but "thin" moral psychology
and sociology of human nature.
47
Political liberalism's presupposition of a certain moral psychology and
sociology does not compromise its commitment to neutrality as an ideal. It
is a common misunderstanding to think that because political liberalism is
anti-perfectionist, then its "neutrality" purports to go all the way down, as it
were, and implies being neutral about neutrality itself. On the contrary,
political liberalism can take its own side in an argument (pace Robert
Frost) because political liberalism entails a moral commitment to
neutrality-or better, a moral commitment to impartial regard for citizens
and their reasonable comprehensive doctrines. This is why Stephen
Macedo, for example, prefers to contrast neutrality with public reason:
Neutrality builds on principles that are central to liberalism, but for
them it erects an excessively strong ban on judgments about human
45
!d. at 162-63.
46
Just as certain forms of perfectionist liberalism echo Plato's radical proposals in
the REPUBLIC to abolish the family, so Rawls's neutralist liberalism seems to echo
Aristotle's criticism of Plato's proposal. In the POLITICS Aristotle argues,
" ... everybody is more inclined to neglect something which he expects another to
fulfill; as in families many attendants are often less useful than a few. Each citizen
will have a thousand sons who will not be his sons individually, but anybody will
equally be the son of anybody, and will therefore be neglected by all alike .... Nor
is there any way of preventing brothers and children and fathers and mothers from
sometimes recognizing one another; for children are born like their parents and
they will necessarily be finding indications of their relationship to one another".
THE COMPLETE WORKS OF ARISTOTLE 1262a 1-20 (Jonathan Barnes, ed. 1984).
47
See RAWLS, supra note 14, at 86-88. For a further treatment of the need to press
Rawls's political conception of the person in an Aristotelian direction, see Martha
C. Nussbaum The Future of Feminist Liberalism in 74 PROCEEDINGS AND
ADDRESSES OF THE AMERICAN PHILOSOPHICAL ASSOCIATION at 4 7 (Nov., 2000).
15
001305
ideals. Liberals properly deploy reasons that can widely be seen to be
reasonable, and liberal believe in respect for all those who pass the
threshold requirements of reasonableness. Liberals resist paternalism,
and minimize interference with people's choice. These do not,
however, add up to neutrality. Liberal restrictions on the reason that
can be offered to support government actions are not strict enough to
constitute a commitment to neutrality.
48
Rawls himself tended to avoid the idiom of neutrality precisely to
discourage the misunderstanding that political liberalism purported to be
free from moral commitments; it doesn't. Given political liberalism's
manifest commitment to the moral ideal of equal citizenship, therefore, the
moral commitments implicit in political liberalism's prerequisite moral
psychology and sociology are unproblematic.
Political liberalism's thin moral psychology and sociology bears
similarities to the notion of natural necessity that H. L. A. Hart deploys in
The Concept ofLaw.
49
Considering Hart's discussion is instructive for
clarifying the circumscribed but essential role of human nature as a
foundation of political liberalism. 5 Hart isolates and contrasts two
concepts of law: a wide concept, which includes any valid norm of a legal
system, and a narrow concept, which includes only those legal norms that
are just and morally admirable. Hart is a legal positivist whose task is to
develop a jurisprudence qua descriptive sociology of the wide concept of
law. Even so, the wide concept of law inevitably includes a "minimal
moral content," given certain natural necessities of social life for human
beings associated together. Hart identifies six truisms about human life and
community: human vulnerability, approximate equality, limited altruism,
limited resources, limited understanding and strength of will. These natural
facts "afford a reason why, given survival as an aim, law and morals
should include a specific content," because "without such a content laws
and morals could not forward the minimum purpose of survival which men
have in associating with each other."
51
These truisms about human life
48
STEPHEN MACEDO, LIBERAL VIRTUES, 262-3.
49
H. L.A. HART, THE CONCEPT OF LAW 199-200 (2d ed., 1994) ("For it is a truth
of some importance that for the adequate description not only of law but of many
other social institutions, a place must be reserved, besides definitions and ordinary
statements of fact, for a third category of statements: those [natural necessities] the
truth of which is contingent on human beings and the world they live in retaining
the salient characteristics which they have").
50
It is true that Rawls himself says that in political liberalism "[a]ccounts of
human nature we put aside and rely on a political conception of persons as citizens
instead." RAWLS, supra note 14, at 800. In the context of this remark, however,
Rawls uses "human nature" to refer to all-things-considered comprehensive
accounts of human nature, such as those accounts that figure in Thomism,
Platonism, or Marxism. See id. at 800 n. 86. What I am calling a "thin moral
psychology and sociology" is compatible with what Rawls means by "a political
conception of persons as citizens."
51
HART, supra note 49, at 199.
16
001306
correspond roughly to the basic human needs that Rawls addresses under
the rubric of primary goods.
Political liberalism provides a specifically "political understanding of
what is to be publicly recognized as citizens' needs."
52
Accommodation of
these needs, and thus access to primary goods, is necessary from infancy to
adult citizenship, whatever one's ultimate conception of the good life.
Thus Rawls argues:
[t]o identify the primary goods we look to social background
conditions and general all-purpose means normally needed for
developing and exercising the two moral powers and for effectively
pursuing conceptions of the good with widely different contents.
53
Although neither Hart nor Rawls appeals to human nature in a morally
thick sense, the fact that they do appeal to human nature is undeniable and
necessary. Hart recognizes that any theory of law must conceive of human
beings as naturally inclined towards survival, self-maintenance, and
improvement in association with one another, because without these
inclinations there would be no law to begin with. Nevertheless, as Hart
insists-in a very Rawlsian tone-such an appeal to human nature "can be
disentangled from more disputable parts of the general teleological outlook
in which the end or good for man appears as a specific way of life about
which, in fact, men may profoundly disagree."
5
Likewise Rawls claims
that there is a specifically political understanding of primary human goods
that provides the impetus for a political conception of justice, and without
such primary goods there would be no content for a theory of justice.
Marriage and the family are not themselves primary goods, because there
are of course reasonable life plans that do not include getting married or
having children, but marriage and the family are nevertheless part of
society's basic structure.
Many Rawlsians, even if they were willing to concede that this is a
plausible elaboration of Rawls's own views, might argue that the family
should not be as central to political liberalism as Rawls himself makes it
out to be; or they would argue that the state's interest in the family should
be more than purely functional and the state should set out to transform the
family in light of a substantive moral vision of equality.
55
Veronique
Munoz-Darde, for example, accepts political liberalism and the ideal of
public reason, but argues, against Rawls, that:
we should displace most of the expectations for securing material
impartial care for the needs of individuals to the state. The aim is
52
RAWLS, supra note 14, at I 79.
53
RAWLS, supra note 14, at 75-76.
54
HART, supra note 49, at 193.
55
There is admittedly some ambiguity in Rawls's treatment of the family as it
develops from A THEORY OF JUSTICE to POLITICAL LIBERALISM. In the former the
parties to the original position are 'heads of households'.
17
001307
for affection not to be enforced (which is futile), nor assumed (for
it fails). If political institutions fulfill their impartial role, the
family can then be the realm of the genuinely affectional, not a
fallible refuge which increases the vulnerability of the worst off.
56
Munoz-Darde proposes that "families" should be redefined as "any social
unity in which a group of elders are primarily responsible and have primary
authority over a particular group of children," and argues that marriage
should be abolished as a legal category. 5
7
Her article is entitled "Is the
Family to be Abolished Then?" which is a quotation from A Theory of
Justice, where Rawls himself answers the question negatively. Although
Munoz-Darde's nominal answer to this question is also negative, she
rejects the fanciful alternative of mandatory state-administered orphanages
so tepidly and redefines "family" so thoroughly that her conclusion is
tantamount to abolishing the family in all but name. Her argument here
and in a similar article is worth evaluating, firstly, because it addresses our
primary concern, which is the justice of the family and not merely justice
within the family, and secondly, because Munoz-Darde's argument betrays
a number of substantive and methodological flaws that vitiate attempts to
deploy a Rawlsian framework to justify radical transformations of marriage
and the family.
58
Munoz-Darde purports to show how a "form of contractualism more
individualistic than Rawls's would do better at addressing the concerns
about justice and the family raised by feminist theorists, and would also
compel us to be more egalitarian."
59
This can be achieved, she argues, by
retooling the original position within which parties to the social contract
deliberate over principles of justice. If parties within the original position
are defined merely as individuals, and never as representatives of
households as Rawls himself defines them in A Theory of Justice,
60
and
furthermore if those individuals are shorn of any knowledge about or
sentimental ties to family members, then the principles of justice produced
by this decision procedure would be more radically egalitarian.
There are liberal theories, feminist or otherwise, that are of course
more individualistic and more egalitarian than Rawls's political liberalism,
and no doubt Munoz-Darde is correct on the narrow point that by
alterations to the original position, Rawls's political liberalism could be
modified in this direction. This point hardly amounts to an objection
against Rawls's project as it stands, however, because the suggested
modification fails even to engage with the distinctive aim of properly
political liberalism. That aim is to provide a noncomprehensive and purely
political conception of justice that can be agreed to in a principled fashion
56
Munoz-Darde, supra note 35 at 55.
57
Munoz-Darde, supra note 35 at 44.
58
The very similar paper is Veronique Munoz-Darde, Rawls, Justice in the Family,
and Justice of the Family, 48 PHILOSOPHICAL QUARTERLY 335 (July 1998).
59
/d. at 335.
60
RAWLS, supra note 37, at 128-29.
18
001308
by people who disagree about the ultimate aims of life, but who live
together in a democratic society. By arguing that the original position
should be packed with more controversial assumptions based on
individualistic and egalitarian moral ideals, Munoz-Darde undermines the
consensus-building purpose of the social contract methodology and plays
into the hands of Rawls's antiliberal critics.
Conservative and Marxist critics alike have long maintained that the
original position is an elaborate sham whose real function is to disguise the
bourgeois liberal assumptions of justice as fairness, which would never
gain assent ifRawls argued for them openly.
61
Munoz-Darde's
modifications of the original position, however attractive they might be to
holders of liberal comprehensive doctrines, would simply validate the
conservative and Marxist suspicions. As I mentioned above, Rawls came
to realize that even the version of justice as fairness that he proposed in A
Theory of Justice was too sectarian for a pluralistic democracy, and so he
tried to restate justice as fairness in terms accessible to all reasonable
citizens without appealing to a comprehensive liberalism. This greater
epistemic humility, which contrasts with the ambitious comprehensive
philosophies of earlier liberals like Mill and Kant, is not a form of moral
skepticism on Rawls's part, but a response to the historically demonstrable
"burdens of judgment" in moral and political matters, which is a fact of the
Western democratic inheritance.
62
Thus Rawls says:
A Theory of Justice hopes to present the structural features of such
a theory so as to make it the best approximation to our considered
judgments of justice and hence to give the most appropriate moral
basis for a democratic society. Furthermore, justice as fairness is
presented there as a "comprehensive doctrine" (although the term
"comprehensive doctrine" is not used in the book) in which all the
members of its well-ordered society affirm that same doctrine.
This kind of well-ordered society contradicts the fact of reasonable
pluralism and hence Political Liberalism regards that society as
impossible.
63
Munoz-Darde's proposed modifications to the original position with
respect to the family would contradict the fact of reasonable pluralism even
more egregiously than the first version of justice as fairness from A Theory
of Justice, which Rawls himself came to reject. Munoz-Darde's argument
is less a sympathetic critique ofRawlsian political liberalism than simply
61
Cf ROBERT P. GEORGE, MAKING MEN MORAL: CIVIL LIBERTIES AND PUBLIC
MORALITY (1995); Robert P. George, Public Reason and Political Conflict:
Abortion and Homosexua/ity,106 YALE LAW JOURNAL 2475(1996-7); ROBERT
PAUL WOLFF, UNDERSTANDING RAWLS: A CRITIQUE AND RECONSTRUCTION OF A
THEORY OF JUSTICE, {1977).
62
There are of course doubts that may be raised about Rawls's conception of
F:olitical history, but I'm bracketing these concerns.
3
RAWLS, supra note 37 at 179 (emphasis added).
19
001309
an alternative, perfectionist fonn of liberalism grounded in a particular
comprehensive doctrine.
Stephen Macedo, unlike Munoz-Darde, has offered an argument that
emends Rawls' account while agreeing that the family should play a central
role in political liberalism. The state should promote marriage and the
family, he says, with the conviction "that encouraging people to make
deeper and more stable commitments than they might otherwise do will be
good for them and for society, and that seems [publicly] reasonable."
64
At
this level of generality, he acknowledges common ground with
conservative natural law theorists about the legitimate state interest in the
family. But Macedo goes on to argue that natural law theory's narrower
conception of marriage and the family violates public reason by relying
upon further philosophically controversial assumptions. He reasons that if
"incentives to fonn relatively stable commitments are good for straight
people, then they may be good for gays and lesbians as well. "
65
Therefore,
Macedo claims that promotion of same-sex marriage should be part of the
general state interest in ensuring marital and familial stability.
Macedo's argument fails because it relies upon the assumption that
homosexual sexual relationships are intrinsically valuable. Even if this is
true, to premise state action upon its truth violates public reason, and it is
the mirror image of the natural law argument against same-sex marriage,
which is premised upon the truth of its claims that heterosexual marriage is
the intrinsically valuable expression of sexuality. As David Estlund puts it,
" ... Macedo's reasons for state action [to promote homosexual unions] are
simply the value of the fonn of life the action would encourage, just the
sort of reasoning political liberalism seems to repudiate. "
66
In spite of his
professed sympathy with Rawls, therefore, Macedo ends up advocating a
fonn of perfectionist liberalism at odds with the purely political conception
of justice, and so like Munoz-Darde, he fails to specify an argument for
redefining marriage and the family in tenns of public reasons. Elsewhere
Macedo urges that the evaluation of arguments about legislation on matters
of basic justice should restrict itself to " ... the reasonableness of these
arguments as contributions to our public deliberations about important and
basic matters of political morality."
67
But Macedo violates his own
recommendation.
Elizabeth Brake argues that Rawlsian political liberalism requires only
"minimal marriage."
68
According to Brake, minimal marriage "institutes
64
Stephen Macedo, Sexuality and Liberty: Making Room for Nature and
Tradition? in SEX, PREFERENCE AND FAMILY 94 {David M. Estlund & Martha C.
Nussbaum eds., 1998). It is worth noting that Macedo's claim is so broad that,
barring further qualifications that he does not make, it clearly justifies the state
F:romotion of polygamy in addition to same-sex marriage.
5
!d. at 93.
66
Estlund & Nussbaum, supra note 64, at 164.
67
Stephen Macedo, Homosexuality and the Conservative Mind at 264.
68
Elizabeth Brake, Minimal Marriage: What Political Liberalism Implies for
Marriage Law, 120 ETHICS 302 {2010).
20
001310
the most extensive set of restrictions on marriage compatible with political
liberalism [and it implies] no principled restrictions on the sex or number
of spouses and the nature and purpose of their relationships, except that
they be caring relationships."
69
Thus Brake thinks that any "network" of
individuals should qualify as a civil marriage so long as they care for each
other. Brake's argument is perhaps the closest to the one I am proposing
here, because she tries to avoid relying upon controversial liberal ideals
about sexual morality: " ... it is unjust to define marriage legally on the
basis of contested moral views regarding same-sex activity."
70
Brake also
recognizes at some level that the state interests in orderly reproduction (i.e.,
marriage) and in the "caring networks" of adults are distinct.
71
But her
argument nevertheless fails because she neglects to attend to the full
implications of the family's role in political liberalism as the unit of orderly
social reproduction over time, which is the role that distinguishes marriage
and the family specifically from networks of caring generally. Brake also
mistakenly inverts the burden of proof for justifying legislative policy.
Because there is (allegedly) no "compelling reason" from social science
data to think that her conception of "minimal marriage" would harm
children, she thinks that minimal marriage is justified as a viable policy.
Even if social science suggested that traditional marriage provided the
optimal context for childrearing, Brake claims, "[s]ociety does not and
cannot require that parents be ideally suited to maximize children's well-
being (there would not be enough parents)."
72
This is a straw man. A
politically liberal argument for traditional marriage need not assert that the
state require parents to be ideally suited to maximize children's well-being.
It only needs to promote and encourage people to choose for themselves to
become parents within the context of traditional conjugal marriage,
because this is the context that is optimal for children. (I will discuss this
momentarily.) For her argument to be successful, Brake would have to
show that "minimal marriage," as she conceives it, is the form of
relationship that specifically benefits children and therefore promotes
orderly reproduction.
73
It isn't sufficient just to argue from ignorance by
69
/d. at 305.
70
ELIZABETH BRAKE, MINIMIZING MARRIAGE: MARRIAGE, MORALITY, AND THE
LAW {2012) at 133.
71
See BRAKE, supra note 70, ch. 6.
72
/d.at318.
73
In fact, the optimal status of family headed by a married mother and father, in
comparison to merely cohabiting and unmarried parents, has again been reaffirmed
in a recent federal study report to the US Congress on child abuse and neglect. See
A.J. SEDLAK ET AL., U.S. DEP'T OF HEALTH & HUMAN SERV., ADMIN. FOR
CHILDREN & FAMILIES, FOURTH NATIONAL INCIDENCE STUDY OF CHILD ABUSE
AND NEGLECT (NIS-4 ): REPORT TO CONGRESS, EXECUTIVE SUMMARY 12 {20 1 0)
available at
http://www .acf. hhs.gov/programs/ opre/abuse _neglect/nat!_ incid/index.html
(noting that after having "classified children into six categories: living with two
married biological parents, living with other married parents [e.g., step-parent,
adoptive parent], living with two unmarried parents, living with one parent who
21
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pointing to the absence of evidence that "minimal marriage" specifically
harms children. The absence of evidence that a policy harms does not
amount to the presence of evidence that a policy benefits.
Before addressing what for Rawls constitutes the moral development
and education of children, it bears reminding ourselves of the obvious fact
that children cannot be raised and cared for if they do not come to be in the
first place. It is no more legitimate for political liberalism to take out a
loan on a supposedly incorrigible "natural instinct" of people to conceive
and bear children than it was for A Theory of Justice to take out a loan on
the "maternal instinct" of women to nurture their children.
74
A necessary
prerequisite, therefore, to families fulfilling their essential role of raising
and caring for children in a reasonable and effective way is that families
have sufficient numbers of children in the first place. There is a politically
liberal state interest in ensuring that this happens. An insufficient average
birthrate below population replacement levels for a long enough period
would have a number of destabilizing effects on society, some of them
grave, and it is worth mentioning some of these explicitly.
75
had an unmarried partner in the household, living with one parent who had no
partner in the household, and living with no parent ... [t]he groups differed in
rates of every maltreatment category and across both definitional standards.
Children living with their married biological parents universally had the lowest
rate, whereas those living with a single parent who had a cohabiting partner in the
household had the highest rate in all maltreatment categories. Compared to
children living with married biological parents, those whose single parent had a
live-in partner had more than 8 times the rate of maltreatment overall, over 10
times the rate of abuse, and nearly 8 times the rate of neglect") (emphasis added).
74
See William A. Galston, Individualism, Liberalism and Democratic Civil Society
in THE ESSENTIAL CIVIL SOCIETY READER: CLASSIC ESSAYS IN THE AMERICAN
CIVIL SOCIETY DEBATE 370 (Don Eberly ed., 2000) ("We cannot simply chant the
mantra of diversity and hope that fate will smile upon us. We must try as best we
can to repair our tattered social fabric by attending more carefully to the moral
requirements of liberal public life and by doing what is possible and proper to
reinforce them.").
15
Such destabilization has occurred before in Western European social history;
famously, during the late Roman period when imperial officials constantly tried
unsuccessfully to encourage the Roman governing classes to have enough children
to sustain their population levels. Harvard sociologist Carle C. Zimmerman
chronicled how three basic family structures have appeared in different periods in
Western history: the quasi-tribal "trustee family" of ancient Greece which re-
emerged during the political and social instability of the early medieval period
after the Roman collapse, the "domestic family" which arose in the early modem
period as a result of the social stability and control introduced by strong
ecclesiastical and civil institutions, and finally the "atomistic family" which
emerged in force during the nineteenth century as a result of urbanization and
liberalized social and religious mores. See CARLE C. ZIMMERMAN, FAMILY AND
CIVILIZATION (194 7).
22
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Since the early twentieth century there has been a revolution in the
economics of childbearing.
76
From a social perspective, children are a
capital asset. Without sufficient children, society comes to an end. For
most of history children were also material assets for the parents who had
and reared them, so that the huge opportunity cost of parenting was more
than offset by the investment in the children themselves. Before the early
twentieth century it was easy for adults to see the clear economic benefits
in having children. In 1776 Adam Smith estimated that in colonial
America, "the labour of each child before it can leave [its parents' house] is
computed to be a hundred pounds clear gain to them." Even as late as
1899, a child's economic contribution to his parents, if he stayed at home
until age 18, was estimated at $599.95.
77
Parents also saw their opportunity
costs in having large families as investments in their security in old age,
since by having many children parents could ensure that they would be
cared for when they themselves eventually became weak or ill.
Although today children remain necessary assets to society, they no
longer yield material returns, either in monetary or security value, to their
parents. As early as 1938 the economist Henry C. Simmons could argue,
"it would be hard to maintain that the raising of children is not a form of
consumption on the part of the parents." Indeed, by 1982 the economist
Laurence Olson pointed out, "in purely monetary terms, couples would be
better off putting their money in a bank as a way of saving for their old
age," rather than incurring the costs of childrearing. If most people took
Olson's advice, the consequence would of course be disaster. Not only
would society's future disappear, but the viability of the present
generations would also be destroyed, because present economic viability
assumes future generation-linked cycles of production and investment.
Moreover, the availability of socialized pension systems creates a further
free rider problem. Socialized pension systems tend to require growing
numbers of workers and/or continual increases in productivity because
politicians tend to favor increasing present payouts at the cost of future
debt. So although socialized pension systems need large young
generations, adult individuals are "better off' materially if they opt not to
have children, since they can still draw their benefits regardless of whether
they support the broader system by having children themselves. Thus they
can externalize the costs of their growing old onto other people whose
having children sustains the system.
78
76
The following draws upon Rolf George, On the External Benefits of Children in
KINDRED MATTERS: RETHINKING THE PHILOSOPHY OF THE FAMILY (D. T. Meyers
et al. eds., 1993).
77
!d. at 209. (The 1899 estimate is from an Indiana jury in a wrongful death case).
78
Someone might raise the problem of overpopulation. First, it is not clear that
this really is a problem, given present estimates of global population and
productivity, as against the alarmist and false predictions in the 1970s and 80s. In
any case, Rolf George has made a persuasive argument against the relevance of
overpopulation to any given nation's orderly (self) reproduction over time. See
George, supra note 76, at 215.
23
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Recent estimates about the financial costs of childrearing are bracing.
In 2007 the estimated cost of raising a child from birth through age 17 in
the United States, excluding the price of a college education, was
$204,060.
79
In constant 2007 U.S. dollars that cost was a three percent
increase from 1995 (at $197,709), whereas during that same period the
average income for husband-wife families remained static. Furthermore,
during that same time period the additional average cost of an in-state,
public college increased by forty percent, to $11,963 from $8,562 in
constant 2007 dollars. Philip Longman argues, "[w]ithout the multimillion-
dollar liability of children, even young couples of comparatively modest
means can often afford big-ticket luxury items. These might include a fair-
sized McMansion, two BMWs, and regular vacations to the Caribbean, all
of which could easily cost less than raising 2.1 children."
80
The
Department of Labor estimates that adults who are not raising children
have on average 500 additional hours of leisure time each year compared
with adults who are raising children.
81
From an economic perspective, therefore, parents incur tremendous,
uncompensated expenses and opportunity costs, yet having and rearing
children remains a socially necessary task. Liberal western mores, a
market economy, and the social welfare state create a massive economic
externality in which childbearing families confer an uncompensated and
unintended benefit on the childless.
82
Socialized pension systems have become integral to all advanced
democratic nations and their maintenance presupposes sufficiently large
young generations. A persistently low birthrate would endanger socialized
pension systems, and any consequent benefits reduction or (more
drastically) system collapse would have a disparate impact upon the retired,
disabled, and poor who depend principally upon the support of such
systems. Western Europe appears to face just this threat since its average
birth rate has dropped well below replacement levels and at present there is
no indication of a significant reversal. Asia is threatened by the same
79
2007 dollars calculated using the Bureau of Labor Statistics CPI Inflation
Calculator available at www.bls.gov/data/inflation_calculator.htm; Mark Lino,
U.S. DEP'T OF AGRIC., CTR. FOR NUTRITIONAL POL'Y & PROMOTION, Expenditures
on Children by Families (2007) available at
http://www.cnpp.usda.gov/Publications/CRC/crc2006.pdf.
80
PHILIP LONGMAN, THE EMPTY CRADLE: HOW FALLING BIRTHRATES THREATEN
WORLD PROSPERITY AND WHAT To Do ABOUT IT 82 (2004 ).
81
U.S. DEP'T OF LABOR, BUREAU OF LABOR STATISTICS, American Time-Use
Surveys (June 2008) available at
http://www.bls.gov/news.release/archives/atus_06242009.pdf .
82
These facts undermine an argument for same-sex marriage made by Laurence
Drew Borton. See Lawrence Drew Borton, Sex, Procreation, and the State Interest
in Marriage, I 02 COLUMBIA L. REV. I 089 (2002) (arguing that United States case
law shows that the historic state interest in marriage was not procreation, but
simply preventing sexual activity outside of marriage). Even if Borton is correct,
which is not evident, there may be a new state interest in marriage that arises from
present conditions.
24
001314
prospect.
83
The population situation in the United States appears to be less
threatening because the birthrate remains at replacement level.
Low birthrates lead to a dearth of productive workers and
governments often try to compensate for this by encouraging large-scale
immigration (or "guest worker" programs that have amounted to de facto
immigration), which leads to another potentially socially destabilizing
effect. Immigration is not a principled solution to society's orderly
reproduction over time. From the perspective of political liberalism, there
is certainly nothing suspect about immigration as such. However,
immigration cannot reliably fill the population gap when the family fails to
provide the socially necessary labor of reproduction. Immigration is first
of all not a sustainable means of social reproduction since the number of
possible immigrants is finite and subject to extrinsic contingencies, since
any given country has very little control over whether, when or how many
aliens will in fact immigrate. Furthermore, large-scale immigration from
nonliberal societies could threaten to undermine the public political culture,
which embodies the requisite principles of reciprocity and mutual respect.
Not every conceivable or actual comprehensive doctrine can participate in
the reasonable overlapping consensus. It is crucial to note that for Rawls:
[t]he dualism in political liberalism between the point of view of
the political conception and the many points of view of
comprehensive doctrines is not a dualism originating in
philosophy. Rather, it originates in the special nature of
democratic culture as marked by reasonable pluralism.
84
It is certainly possible that through significant unacculturated immigration
a democratic culture once hospitable to the ideals of political liberalism
could become marked by an unreasonable pluralism.
85
Rawls requires that
"members of the community have a common sense of justice and they are
bound by ties of civic friendship," but substantial illiberal minorities could
break such ties.
86
The point here is not to argue about the empirical
question of whether or not such destabilizing immigration actually obtains
anywhere today.
87
Rather, it is simply to flesh out the implications of
Rawls's recognition that a politically liberal pluralistic democracy must
ensure a sustainable arrangement of social reproduction by means of the
family, and not rely parasitically on fickle immigration trends for support.
Political liberalism requires that "[ c ]itizens must have a sense of justice and
83
See Nicholas Eberstadt, Demographic Trends in Northeast Asia: Changing the
Realm of the Possible, FAR E. ECON. REV. (May 2007).
84
RAWLS, supra note 14, at 23.
85
Cf. Philip Longman, The Return of Patriarchy, FOREIGN PoL'Y (Feb. 17, 2006).
86
RAWLS, supra note 43, at 4 70.
87
Some social commentators from the left and the right have argued that this is in
fact the case with Western Europe today. See, e.g., BRUCE BAWER, WHILE
EUROPE SLEPT (2007); Stanley Kurtz, Demographics and the Culture War, 129
POL'Y REV (Feb. 2005).
25
001315
the political virtues that support political and social institutions."
Therefore, "[t]he family must ensure the nurturing and development of
such citizens in appropriate numbers to maintain an enduring society."
88
The concept of sustainability receives much attention today in
environmental ethics and public policy. Rawls recognized that
sustainability should apply to our treatment of human political ecology just
as much as to natural ecology. Indeed, Rawls emphasizes that in principle,
"[n]o particular form of the family (monogamous, heterosexual, or
otherwise) is so far required by a political conception of justice so long as it
is arranged to fulfill these tasks [of social reproduction] effectively and
does not run afoul of other political values"
89
That is, for political
liberalism the state interest in the family is purely functional, even if
families in their own self-image are not, and so there is no antecedent
political preference for either "traditional" or "liberated" family forms as
such.
90
Appeals to monogamy as such, or against same-sex marriages, as
within the government's legitimate interest in the family, would
reflect religious or comprehensive moral doctrines. Accordingly,
that interest would be improperly specified.
91
But as I will show in the next section, that interest can be properly
specified. The state has a state interest in monogamy and against same-sex
marriage, not because it need claim that one is intrinsically valuable and the
other is not, but for the sake of the orderly reproduction of society. The
appeals to the moral value of monogamy as such and the moral value of
same-sex unions as such both equally reflect comprehensive doctrines and
are therefore illegitimate within political liberalism.
At any rate, there are further reasons why it is insufficient that there
simply be enough young workers to support the old; it is socially ?
important for many people, if not all, to have children of their own.
92
When people have children of their own, they forge intergenerational ties
88
JOHN RAWLS, COLLECTED PAPERS 596 (Samuel Freeman ed., 2001 ).
89
!d., at 163
90
Samuel Freeman says, "The primary function of the family for Rawls-what
makes it a basic social institution-has nothing to do with romantic love or even
marriage between the natural or adoptive parents or caretakers of children. The
family is rather regarded as a basic social institution since any society has to have
some social structure for nurturing and raising its children. Without some kind of
family formation, a society cannot reproduce itself over time. " SAMUEL FREEMAN,
RAWLS 237 (2007).
91
Rawls, supra note 15, at 779.
92
Cf. the study published by the National Marriage Project, a nonpartisan research
partnership at Rutgers University (and now at the University of Virginia),
BARBARA DAFOE WHITEHEAD AND DAVID POPENOE, LIFE WITHOUT CHILDREN:
THE SOCIAL RETREAT FROM CHILDREN AND HOW IT Is CHANGING AMERICA (2008)
available at http://www. virginia.edu/marriageprojectlspecialreports.html.
26
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of reciprocal concern. Adult generations become better able to absorb the
disruptive effects of technological development and consequent increases
in economic productivity that are persistent features of modem life.
Technological change that renders one's own lifelong craft or profession
obsolete can be borne more easily when that obsolescence is seen to benefit
one's own children in the long run. Without the personal affective ties to
future generations that having children establishes, an adult is less likely to
see his own interest as tied up in the long-term wellbeing of society. When
this propensity is writ large across a society, then the relations between its
generations are prone to become antagonistic, rather than cooperative, with
the interests of the young pitted against the interests of the old.
93
It is well-
known that family businesses provide invaluable social stability in times of
economic and political turmoil.
94
More generally, however, even during peaceful periods, individuals'
membership in intergenerational families serves to lengthen their range of
self-interest into the future and to moderate the narrowly consumptive
mentality that market economies encourage. As Alexis de Tocqueville
recognized, when "family spirit" is a strong force in one's life, then:
[o]ne seeks to perpetuate and in a way to immortalize oneself in one's
remote posterity. Whenever the spirit of family ends, individual
selfishness reenters into the reality of its penchants. As the family no
longer presents itself to the mind as anything but vague, indeterminate,
and uncertain, each concentrates on the comfort of the present; he
dreams of the establishment of each generation that is going to follow,
and nothing more.
95
Without children of one's own, then one loses a powerfully tangible reason
to dream even about the next immediate generation, let alone more remote
generations into the future. But the political community needs people to
forgo present satisfactions for the sake of the well-being of remote future
generations.
Children are needy and dependent beings; when they are raised
outside of a stable family they put a tremendous material burden on the
state, which must step in to care for them. Therefore, well-ordered families
not only build up the social capital that liberal democracies rely upon to
sustain social welfare programs such as socialized pensions, but they
prevent the erosion of that capital by avoiding social dysfunction.
What, then, is the content of the moral development and education that
families must provide to children once they are born? The principal
93
Cf Rachel Donadio, Europe's Young Grow Agitated over Future Prospects,
N.Y. TIMES. Jan. 2, 2011 at A6, available at
http://www .nytimes.com/20 11/0 1 /02/world/europe/02youth .h tml?pagewanted=all
94
HAROLD JAMES, FAMILY CAPITALISM: WENDELS, HANIELS, FALCKS AND THE
CONTINENTAL EUROPEAN MODEL (2006).
95
ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA, Vol. I, Pt. 1, Ch. 3 (2000).
49.
27
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responsibility of families within political liberalism is to educate children
into mature citizens who can capably exercise the two basic moral powers,
which are a shared sense of justice and a rational conception of the good
(whatever particular eligible comprehensive doctrine that conception may
embody). This responsibility of course includes providing basic care for
physical health, nutrition, safety and intellectual development. As Samuel
Freeman emphasizes, Rawls nonetheless
sees this as consistent with parents raising their children within
their own religion, and even with teaching them anti-liberal moral
and religious views .... The reasons for this seem to be that Rawls,
for reasons of religious freedom, association, and other basic
liberties, did not want to give governments the power to intervene
in within family life and impose a positive duty upon parents to
bring up their children as morally autonomous beings.
96
Requiring the government to impose this sort of positive duty would not be
publicly reasonable, since "moral autonomy" as an ideal is part of
controversial comprehensive doctrines of the good. Whose conception of
moral autonomy? Saint Paul and John Stuart Mill, for example, would
both nominally agree on "moral autonomy" as a goal, but they would of
course fill out the ideal in very different ways: freedom in the truth of
Christ versus freedom for experiments in living.
97
Both ideals, religious
and secular, are illegitimate grounds for political action.
Rawls's functional role for the family within political liberalism might
seem to some critics as perversely instrumentalizing. Is not the family, in
whatever form it should take, an intrinsically valuable form of association
whose significance is much more profound than any mere instrument for
fabricating future citizens? In a word, the answer is yes-but this
conviction is not in fact at odds with the Rawlsian position. No one can
deny that the bonds of kinship are among the most intimate and meaningful
relations in a human life, and it is within families that most people seek
their happiness. Far from these truths being an objection to Rawls's
functional treatment of the family, however, they in fact support it. It is
precisely because the family is the locus of such profoundly intimate
affective relationships that from the perspective of political liberalism the
state should have a strictly limited interest in it.
First of all, the massive apparatus of the modem nation-state is too
blunt and bureaucratic an instrument to entrust with regulating the
complicated and emotionally fraught terrain of personal friendships, filial
ties and domestic relations embodied in the family. To task the nation-state
with brokering intimate personal associations is to give it a therapeutic
mandate that it is incapable of managing. Secondly, friendship, kinship,
and personal and affective relationships are not basic matters of political
96
FREEMAN, supra note 90, at 238.
97
Cf Romans 7; J.S. MILL, ON LIBERTY.
28
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justice or constitutional essentials of a liberal regime. Rawls contrasts the
state's publicly reasonable interest in the family's social reproductive
function with the distinctive and non-public perspective of people within
families.
The public vs. non-public distinction is not the distinction between
public and private. This latter I ignore: there is no such thing as
private reason. There is social reason-the many reasons of
associations in society which make up the background culture;
there is also, let us say, domestic reason-the reason of families as
small groups in society-and this contrasts both with public and
social reason. As citizens, we participate in all these kinds of
reason and have the rights of equal citizens when we do so.
98
Followers of Rawls who ignore or downplay the centrality he gives to the
family have difficulty making sense of this passage.
99
What Rawls seems
to be saying is that the family has a dual rationale, which is explained from
both internal and external perspectives. The external perspective captures
the family's public and functional role of ensuring orderly reproduction.
The internal perspective, which is the perspective of"domestic reason,"
captures the family's intrinsic significance to its members, considered from
their vantage point as spouses, children, and siblings, and not as citizens
alone.
100
The family, along with other forms of social organization like
churches, synagogues, mosques, clubs, and businesses, forms part of the
"background culture" of a politically liberal society, as Rawls puts it. But
in virtue of its additional public role, the family is unique among the social
institutions of the background culture. Rawls marks this distinction by
singling out and contrasting the "domestic reason" proper to the family
with both the generic "social reason" of other institutions in the background
culture and public reason of political life.
The centrality of the family does not mean that the autonomy of its
inner life is absolute. In participating in the overlapping spheres of
domestic, social, and public reason we "have the rights of equal citizens
when we do so," Rawls reiterates.
101
J. S. Mill claimed that the Victorian-
era family was a "school for despotism," which habituated people's
characters in ways that undermined democracy; if sociological data could
show the same to be true of present-day family, then, as Rawls asserts, "the
principles of justice enjoining a reasonable constitutional democratic
society can plainly be invoked to reform the family."
102
98
RAWLS, supra note 14, at 220.
99
See, e.g., Munoz-Darde, supra note 35, at 336-37 (dealing with the passage by
imputing ambiguity and confusion to Rawls). She addresses this passage and
related ones under the heading "Perplexing statements."
10
Cf SCRUTON, supra note 21.
101
RAWLS, supra note 88, at 598 (quoted in Freeman, supra note 90, at 240).
102 !d.
29
001319
In short, for Rawlsian political liberalism the family is semi-
autonomous. It is accountable to the claims of political justice but at the
same time it is not a creature of the state and has a defeasible sovereignty
over a certain sphere of personal life. Indeed, analogous to the way in
which political justice constrains possible family forms, so too "[t]he
family," Rawls says, "imposes constraints on ways in which [equality of
opportunity] can be achieved."
103
It has considerable range of discretion to
raise and care for children as the parents see fit, provided it performs its
functional role of inculcating in the children the two moral powers
prerequisite to publicly reasonable citizenship. In A Theory of Justice
Rawls asks, "[e]ven when fair opportunity (as it has been defined) is
satisfied, the family will lead to u n e ~ a l basic chances between individuals.
Is the family to be abolished then?"
1
Rawls's answer is no. The family,
as the institution defined by the task of society's reproduction, is a
permanent feature of the basic structure of a well-ordered liberal
democratic polity. The achievement of absolute equality, or any other
political aspiration, which came at the cost of undermining the family
would be a self-destructive and fleeting victory, since such a momentary
gain could not be preserved or transmitted to future generations. To
sacrifice the well-being of future generations in order to provide
unsustainable benefits to the present strikes at society's integrity and is a
failure of political rationality-a conception of justice as social suicide
pact-because it is part of society's nature to be temporally extended
across generations. Although radical restructurings of the family may have
a part in the politics of utopian perfectionism, liberal or otherwise, political
liberalism prudently forgoes such ambitions.
Ill. A PUBLICLY REASONABLE ARGUMENT FOR TRADITIONAL MARRIAGE
Given the Rawlsian account of the family's functional role sketched
above, it is not difficult to frame an argument for traditional marriage in
Rawlsian terms. A publicly reasonable argument for traditional marriage
specifies the state interest in terms of sustainable procreation and
cultivating in citizens the two moral powers, which are "a capacity for a
sense of justice and for a conception of the good."
105
According to Rawls, a
conception of the good is "a conception of what is valuable in human life,"
which is comprised "of a more or less determinate scheme of final ends,
that is, ends that we want to realize for their own sake, as well as
attachments to other persons and loyalties to various groups and
103
RAWLS, supra note 88, at 596. Thus some important recent judicial decisions
are incompatible with the Rawlsian conception of the state interest in the family,
because they conceive of marriage and the family as mere creatures of state
discretion. For example, the Supreme Judicial Court of Massachusetts asserts:
"Simply put, the government creates civil marriage." Goodridge v. Dep't of Pub.
Health, 798 N.E.2d 941,945 (Mass. 2003).
104
RAWLS, supra note 43, at 448 (quoted in Freeman, supra note 90, at 242).
105
RAWLS, supra note 14, at 19.
30
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associations."
106
A conception of the good is "fully comprehensive if it
covers all recognized values and virtues within one rather precisely
articulated system; whereas a conception is only partially comprehensive
when it comprises a number of, but by no means all, nonpolitical values
and virtues and is rather loosely articulated."
107
In short, a conception of
the good is the coherent narrative of a person's identity that he develops for
himself.
A liberal democratic society needs sufficient children and it needs
them to be educated. Therefore, a liberal democratic society needs families
headed by two married parents who are the biological mother and father of
the children, because such families are (a) intrinsically generative and (b)
optimal for childrearing. In other words, sex between men and women
makes babies; society needs sufficient babies; babies need moms and
dads.
108
Every family arrangement in which children are raised need not
and cannot conform to this pattern, but the state has a legitimate interest in
encouraging people to form families that do so, which the state can
accomplish by enshrining this conception of marriage in the law, as
conferring unique social status, and promoting it with material benefits.
Why are traditional families intrinsically generative and what does this
entail? Many viable forms of parenting partnerships are not generative.
Consider, for example, an order of nuns who partner together to run an
orphanage, or a widower and his brother who are raising the children from
the widower's marriage. These arrangements may be viable parenting
partnerships, but they are not intrinsically generative, so they could not
answer society's need for orderly reproduction over time. Traditional
heterosexual marriage is intrinsically generative, because children
characteristically result from sexual intercourse between a man and a
woman in a statistically significant sense, and sexual intercourse is of
course partly constitutive of marriage as a relation. In making this
functional claim about heterosexual sex's generative character, I am not
appealing to any controversial metaphysical biology about natural
normativity in the way that natural law theorists or neo-Aristotelian virtue
ethicists might.
109
Neither am I saying that every marriage does or should
beget children. Rather, I am making an incontrovertible observation about
106
See id.
107
See id. at 19-20.
108
I paraphrase Maggie Gallagher. She argues that traditional heterosexual
marriage "is about uniting these three dimensions of human social life: creating the
conditions under which sex between men and women can make babies safely, in
which the fundamental interests of children in the care and protection of their own
mother and father will be protected, and so that women receive the protections they
need to compensate for the high and gendered (i.e., nonreciprocal) costs of
childbearing." Maggie Gallagher, Does Sex Make Babies? Marriage, Same-Sex
Marriage and Legal Justifications for the Regulation of Intimacy in a Post-
Lawrence World, 23 QUINNIPIAC L. REV. 447,451 {2004).
109
Although what I am claiming is not incompatible with Aristotelian ethical
naturalism.
31
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a social fact, which has implications for the orderly reproduction of a
liberal society.
Hart's work is again helpful here for making sense of this notion of
social fact. In his analysis of law Hart notices that there are certain
inescapable social facts about human nature, such as the persistent human
desire for survival, which any social theory must acknowledge.
110
A theory
need not affirm a metaphysical thesis that survival "is something
antecedently fixed which men necessarily desire because it is their proper
goal or end."
111
It may simply prescind from such ambitious assertions or
denials altogether. Nevertheless, a fact such as the desire for survival "still
has a special status in relation to human conduct and in our thought about
it, which parallels the prominence and the necessity ascribed to it in the
orthodox formulations ofNatural Law." The necessity with which human
beings desire survival is, as it were, political and not metaphysical
necessity, to use the Rawlsian language.
112
What I am suggesting is that
the procreativity of heterosexual couples is analogous to the human desire
for survival; for the purposes of social theory, both facts are necessary
features of a political conception of human nature. Just as Hart's analysis
of law asserts that human beings naturally desire survival, and yet avoids
contentious metaphysical claims, so too a Rawlsian analysis of marriage
and the family will recognize that heterosexual unions are naturally
procreative. In both these cases, the "nature" appealed to is political, not
metaphysical.
113
What about the implications of biotechnology? Some might object
that the availability of effective contraception for heterosexuals and
artificial gamete donation for homosexuals makes procreation a matter of
voluntary choice, not a given feature of relationships that happen to have
the biological complementarity that makes them naturally reproductive. It
is true that contraception and artificial reproduction make it more
110
HART, supra note 49, at 191, quotes Hume, who writes, "Human nature cannot
by any means subsist without the association of individuals: and that association
never could have place were no regard paid to the laws of equity and justice."
David Hume, Of Justice and Injustice, in TREATISE OF HUMAN NATURE, III, ii.
111
HART, supra note 49, at 192.
112
Thus Hart writes, "For it is not merely that an overwhelming majority of men
do wish to live, even at the cost of hideous misery, but that his is reflected in the
whole structures of our thought and language, in terms of which we describe the
world and each other. We could not subtract the general wish to live and leave
intact concepts like danger and safety, harm and benefit, need and function, disease
and cure; for these are ways of simultaneously describing and appraising things by
reference to the contribution they make to survival which is accepted as an aim."
!d. at 192. Likewise, with the procreativity of heterosexual intercourse.
113
"In political philosophy one role of the ideas about our nature has been to think
of people in a standard, or canonical, fashion so that they might accept the same
kind of reasons. In political liberalism, however, we try to avoid natural or
psychological views of this kind, as well as theological or secular doctrines.
Accounts of human nature we put aside and rely on a political conception of
persons as citizens instead," RAWLS, supra note 14, at 800.
32
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rhetorically difficult for natural law theorists to make persuasive arguments
that procreation is the unique proper function of sexual intercourse. But
such arguments are anyway irrelevant to political liberalism. It remains a
social fact that sex-even contraceptive sex-makes babies. Irrespective
of access to contraceptives, it is a social fact that heterosexual relationships
result in children. Consider some data.
114
The National Survey of Family
Growth conducted a nationally representative survey of 10, 847 women
aged between 15-44 years. It concluded that about one-third of births
between 1990 and 1995 were not planned; 56 percent of births to
unmarried women were unintended, as were 39 percent ofbirths to
divorced women and 19 percent of births to married women.
115
At least
one parent did not initially plan to have a child in nearly one-third of births
to married parents and three-fourths of the births to unmarried parents.
116
A study published by the Alan Guttmacher Institute, which is associated
with the abortion and contraceptive provider Planned Parenthood, showed
that 60 percent of women in the United States have had at least one
unplanned pregnancy by the time they reach their late 30s, and nearly four
out often women aged 40-44 have at least one unplanned birth.
117
The normal woman who uses contraceptives continuously will have
on average nearly two unplanned pregnancies over the course of her life.
118
The pregnancy rate for contracepting women varies dramatically among
specific demographic groups. A cohabiting adolescent woman, for
example, has a contraceptive failure rate of roughly 47 percent during her
first year of contraceptive use; among married women who are aged 30 and
older, the failure rate is 8 percent for 12-month use.
119
In sum, "[a]bout
three million pregnancies in the United States (48%) were unintended in
114
See Gallagher, supra note I 08, at 454-56.
115
J. Abma, et al., Fertility, Family Planning, and Women 's Health: New Data
from the 1995 National Survey of Family Growth, NAT'L CTR. FOR HEALTH STATS.
19 (1997), quoted in Gallagher, supra note I 08, at 454.
116
/d. at 28 (Table 17). Only 28 percent of the births to unmarried mothers were
intended by both parents, while 70.4 percent of the births to married mothers were
intended by both parents.
117
Stanley K. Henshaw, Unintended Pregnancies in the United States, 30 FAMILY
PLANNING PERSPECTIVES 28 (1998) (noting that 38.1% of women 40-44 years old
have had at least one unplanned birth) (quoted in Gallagher, supra note I 08, at
455).
118
James Trussell & Barbara Vaughan, Contraceptive Failure, Method-Related
Discontinuation and Resumption of Use: Results from the 1995 National Survey of
Family Growth, 31 FAMILY PLANNING PERSPECTIVES 71 (1999) (quoted in
Gallagher, supra note I 08, at 455). This high pregnancy rate is a function of
actual use of contraceptive methods, which is significantly less effective than
perfect use. "The typical woman who uses reversible methods of contraception
continuously from her 15th to her 45th birthday will experience 1.8 contraceptive
failures." /d.
119
Haishan Fu, et al. Contraceptive Failure Rates: New Estimates from the 1995
National Survey of Family Growth, 31 FAMILY PLANNING PERSPECTIVES, 56
(1999) (quoted in Gallagher, supra note I 08, at 455).
33
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1994. Some 53 percent of these occurred among women who were using
contraceptives."
120
Although contraception lowers the odds that sex results
in pregnancy, it does not alter the social fact that heterosexual relationships
are generative, and this fact is just as important for political theory, and no
less dubious, as the fact that human beings desire survival.
The possibility of artificial gamete donation does not make
homosexual relationships become generative. Rather, the possibility
allows individuals of whatever sexual inclination to produce children
without having sexual intercourse: a woman may have her egg fertilized
from donor sperm, or a man can have a donor egg fertilized with his sperm
and then gestated. Such a man or woman may or may not be involved in a
homosexual relationship. In fact, the vast majority of people who produce
a child through gamete donation are not gay or lesbian. It is typically
single, married, or cohabiting heterosexuals who use gamete donation.
Therefore, the advent of gamete donation does not change the fact that
relationships other than traditional heterosexual ones are non-generative,
which means that neither does gamete donation provide a public reason for
singling out some of the people who could use the procedure and
empowering them to enter into civil marriage just because they happen to
be involved in a homosexual relationship. For to do so would be to assume
that homosexual relationships especially are intrinsically valuable (as the
order of nuns or a widower and his brother, for example, are not), and this
assumption is an illegitimate grounds for state action, because it violates
public reason. There is an analogy between gamete donation and ordinary
adoption. Both of these practices are available to anybody, whether or not
he or she is a partner in a traditional heterosexual relationship or a non-
traditional relationship. Neither practice, therefore, gives any reason for
uniquely picking out homosexual relationships as a class from among non-
traditional relationships generally, and privileging just those with eligibility
for civil marriage.
There is a further problem with the practice of gamete donation from
the perspective of political liberalism, which is a problem that arises
independently from the same-sex marriage debate, and implies that the
political imperative for orderly social reproduction over time could not be
met by using the practice. As David Velleman has argued persuasively,
gamete donation violates the rights of the children produced by it. I will re-
state a publicly reasonable version ofVelleman's argument momentarily.
First, however, consider the second claim I made at the outset of
Section III: families headed by two married parents who are the biological
mother and father of their children are (b) the optimal structure for
childrearing. This claim can be demonstrated in two ways: first, by making
an empirical argument that children do best when raised by the mother and
father who bore them; second, by making a philosophical argument that
developing a conception of the good requires knowing your mother and
12
Fu, supra note 119, at 56.
34
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father and the family history into which you are born. These two
arguments are complementary, but largely independent.
The empirical argument is available elsewhere, and I can only
summarize it here, and show how it can be framed in terms of public
reason. According to Child Trends, a liberal think tank:
[R]esearch clearly demonstrates that family structure matters for
children, and the family structure that helps children the most is a
family headed by two biological parents in a low-conflict marriage.
Children in single-parent families, children born to unmarried
mothers, and children in step-families or cohabitating relationships
face higher risks of poor outcomes .... There is thus value for
children in promoting strong, stable marriages between biological
parents .... [I]t is not simply the presence of two parents, ... but the
presence of two biological parents that seems to support children's
development.
121
Sara McLanahan and Gary Sandefur, sociologists from Princeton
University and the University of Wisconsin, respectively, argue:
If we were asked to design a system for making sure that children's
basic needs were met, we would probably come up with something
quite similar to the two-parent ideal. Such a design, in theory,
would not only ensure that children had access to the time and
money of two adults, it would also provide a system of checks and
balances that promoted equality parenting. The fact that both
parents have a biological connection to the child would increase
the likelihood that parents would identify with the child and be
willing to sacrifice for that child, and it would reduce the
likelihood that either parent would abuse the child.
122
Within political liberalism, childrearing should be deemed successful just
to the extent it cultivates in children the two moral powers. A family
headed by a married mother and father tends to provide better and more
consistent access to primary goods. Recall that primary goods are
comprised of a "political understanding of what is to be publicly
recognized as citizens' needs .... "
123
The content of these goods is morally
121
See Kristin Andersen Moore et al., Marriage from a Child's Perspective: How
Does Family Structure Affect Children, and What Can We Do About It?, CHILD
TRENDS RES. BRIEF 1-2, 6 (June 2002) available at
http://www.childtrends.org/files/MarriageRB602.pdf; see also WITHERSPOON
lNST., MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES (2008) available at
http://www.princetonprinciples.org (summarizing research in a statement on
marriage signed by various scholars across multiple disciplines).
122
SARAH MCLANAHAN & GARY SANDEFUR, GROWING UP WITH A SINGLE PARENT
38 (1994).
123
RAWLS, supra note 14, at 179.
35
001325
thin (see Section II above) and may be derived from the "social background
conditions and general all-purpose means normally needed for developing
and exercising the two moral powers and for effectively pursuing
conceptions of the good with widely different contents."
124
The claim that children do best when reared by the married mother
and father who bore them, like any empirical claim whatsoever, is of
course contestable. When social scientists do contest it, however, they
often mischaracterize what alternative sociological data would have to
show in order to support specifically homosexual parenting, or
polyamorous parenting for that matter. Only if conclusive social scientific
evidence were to show that children do as well or better with two
homosexual parents in comparison to two heterosexual parents, and in
comparison to two parents of the same sex who were not homosexual,
could the data be taken as evidence that grounded a publicly reasonable
argument on behalf of homosexual marriage as such. Otherwise, studies
that purported to show the benefits of homosexual parenting would really
just show at best the benefits of having two parents of whatever sexual
relation, because they would not control for parenting couples such as a
widower and his brother, for example, who are neither homosexual nor
husband and wife.
This mistake along with many others vitiates the force of the
American Psychological Association's influential2005 brief on lesbian and
gay parenting. The brief asserts, "Not a single study has found children of
lesbian or gay parents to be disadvantaged in any significant respect
relative to children of heterosexual parents. "
125
But this assertion is
extremely misleading, because the 59 studies cited in the brief do not really
examine the "children of lesbian or gay parents" and furthermore they fail
to use a stable and well-defined conception of "heterosexual parents" as a
comparison class.
126
The studies overwhelmingly examine small, non-
representative convenience samples of well-educated, wealthy, white
lesbian mothers who live in cities on the East or West coast. The studies
fail to investigate how children fare beyond adolescence, which precludes
the studies from registering dysfunctions that typically arise in adulthood,
and they evaluate children by documenting their parents' perceptions about
the children's wellbeing, rather than evaluating the children themselves.
The studies also focus upon an extremely narrow range of outcomes
for children. Thus they examine outcomes such as "sexual orientation,"
"behavioral adjustment," "self-concepts," and "sex-role identity," "sexual
124
RAWLS, supra note 14, at 75-76.
125
C. J. Patterson, Lesbian and Gay Parents and their Children: Summary of
Research Findings, LESBIAN AND GAY PARENTING: AMERICAN PSYCHOLOGICAL
ASSOCIATION {2005) 5-22, available at
http://www.apa.org/pi/lgbt/resources/parenting-full.pdf.
126
See Loren Marks, Same-Sex Parenting and Children's Outcomes: A Closer
Examination of the American Psychological Association's Brief on Lesbian and
Gay Parenting, SOCIAL SCIENCE RESEARCH, VOLUME 41, ISSUE 4, JULY 2012,
Pages 735-751, available at http://dx.doi.org/10.1 016/j.ssresearch.2012.03.006.
36
001326
identity," "sex-role behavior," self-esteem, "psychosexual and psychiatric
appraisal," and "socioemotional development," and "maternal mental
health and child adjustment";
127
but they generally neglect to study the
effects of lesbian or gay parenting on "intergenerational poverty, collegiate
education and/or labor force contribution, serious criminality,
incarceration, early childbearing, drug/alcohol abuse, or suicide that are
frequently the foci of national studies on children, adolescents, and young
adults .... "
128
Twenty-two of the 59 studies cited in the brief ( 44.1 %) have no
heterosexual parenting comparison group whatsoever, and of the remaining
33 studies that do have a comparison group, many do not use intact
families headed by a married mother and father. At least 13 of the 33
studies used various single-parent families as the heterosexual comparison
groups, usually single mothers who were divorced or never married. The
remaining 20 studies ambiguously refer to their heterosexual comparison
group as "mothers" or "couples" without identifying whether they are
single, married, divorced, cohabiting, or a mixture of these.
129
In summary, the Association's brief is a methodological mess, and
whatever the implications of the studies it cites, they do not establish that
children of homosexual parents "are not disadvantaged in any significant
respect relative to children of heterosexual parents." Indeed, there is now
evidence to the contrary, for the New Family Structures Study (NFSS)
recently conducted by the University of Texas at Austin provides the first
nationally-representative sample of adult children of homosexual parents,
evaluated across a range of 40 important outcome measures.
130
The NFSS
shows statistically significant differences between the adult children of
intact biological families and of lesbian mothers on 25 of the 40 outcomes,
with the adult children of lesbian mothers faring worse on factors such as
need for psychiatric therapy, sexually transmitted infections, educational
attainment, state welfare support, depression, drug use, criminality,
infidelity, sexual victimization, and smoking.
131
The NFSS shows
statistically significant differences between the adult children of intact
biological families and of gay fathers on 11 of 40 outcomes, with the latter
group worse off on 10 out of 11.
132
The adult children of gay fathers were
better off in one respect: they reported a higher rate of voting in
presidential elections than the adult children of intact biological families.
133
127
!d. at 743.
128 !d.
129
!d. at 740-741.
130
Available at http://www.prc.utexas.edu/nfss/.
131
See Mark Regnerus, How Different are the Adult Children of Parents who have
Same-Sex Relationships? Findings from the New Family Structures Study, SOCIAL
SCIENCE RESEARCH 41 (2012) 752-770.
132 !d.
133
See http://www.familystructurestudies.com (for illuminating graphic
comparisons on outcomes between various family structures).
37
001327
The NFSS is not a longitudinal study and on its own does not establish
a causal link between homosexual parenting and poor outcomes for
children.
134
But it does conclusively refute the claim that there are "no
differences" between the childrearing of intact families headed by a mother
and father and of homosexual couples. In any case, for the purposes of my
argument here, I need to go beyond the narrowly social scientific, and to
consider the second argument for the claim that children do best when
reared by the married mother and father who bore them. This argument is
philosophical and it is specific to political liberalism.
135
It is here that I will
develop the work of David V elleman on family history and narrative
identity. What I wish to contend is that biological kinship is among the
conditions that are ordinarily necessary for someone to develop his
narrative identity-that is, his conception of the good-and a just liberal
regime will try to ensure that these conditions are obtained by enshrining
heterosexual marriage in the law.
Velleman makes a powerful argument that biological kinship and
family history are objectively valuable, so "other things being equal,
children should be raised by their biological parents."
136
For human
animals, forming a conception of the good involves engaging with a
narrative that is already partly written by one's family history and
biological kin. One's personal knowledge of one's origins:
is especially important to identify formation because it is important
to the telling of one's life-story, which necessarily encodes one's
appreciation of meaning in the events of one's life. I [Velleman
writes] began with the story of my Russian ancestors, whose search
for something better I imagined to have culminated in my writing
this essay. My family background includes many such stories,
whose denouement I can see myselfundergoing or enacting .... Of
course, my own life provides narrative context for many of the
events within it; but my family history provides an even broader
context, in which large stretches of my life can take on meaning, as
the trajectory of my entire education and career takes on meaning
in relation to the story of my ancestors.
137
134
Mark Regnerus, the principal investigator of the NFSS is quite explicit about its
limits. See REGNERUS, supra note 131, at 755 ("It is a cross-sectional study, and
collected data from respondents at only one point in time, when they were between
the ages of 18 and 39. It does not evaluate the offspring of gay marriages, since
the vast majority of its respondents came of age prior to the legalization of gay
marriage in several states. This study cannot answer political questions about
same-sex relationships and their legal legitimacy.").
135
Nota bene that by calling this argument "philosophical" I don't mean that it is
entirely non-empirical.
136
J. David Velleman, Family History, 34 PHILOSOPHICAL PAPERS 357 (2005).
137
/d. at 375-76. For a lengthier account of narratives and narrative identity, see J.
David Velleman, Narrative Explanation, 112 THE PHILOSOPHICAL REVIEW I
(2003).
38
001328
Therefore, to have a child by a means that knowingly deprives him or her
from having biological kin and a family history, e.g. through gamete
donation, is to wrong the child gravely. Thus Velleman argues,
our society has embarked on a vast social experiment in producing
children designed to have no human relations with some of their
biological relatives .... The experiment of creating these children is
supported by a new ideology of the family, developed for people
who want to have children but lack the biological means to 'have'
them in the usual sense.
138
A person's desire to procreate
has been thought to ground a moral right to procreate only for
those who are in a position to provide the resulting child with a
family. According to the new ideology of the family, of course,
virtually any adult is in a position to satisfy this requirement, since
a family is whatever we choose to call by that name .... [But] what
counts as providing the child with a family in the relevant sense is
a question that must be settled prior to any claim of procreative
rights.
139
[Nevertheless] people who create children by donor conception
already know-or already should know-that their children will be
disadvantaged by the lack of a basic good on which most people
rely in their pursuit of self-knowledge and identity formation. In
coming to know and define themselves, most people rely on their
acquaintance with people who are like them by virtue of being their
biological relatives.
140
[G]amete donation ... purposely severs a connection of the sort
that normally informs a person's sense of identity, which is
composed of elements that must bear emotional meaning, as only
symbols and stories can.
141
Velleman focuses his argument against the practice of anonymous gamete
donation, but he recognizes that it also tells against deliberate single
parenting and homosexual parenting as well, because such arrangements
138
Velleman, Family History, supra notel36, at 360.
139
Id. at 374.
140
Id. at 364-65.
141
Id. at 363.
39
001329
can "have" children only with artificially assisted reproduction through
gamete donation.
142
Empirical evidence supports Velleman's argument that forming one's
own narrative identity, or one's conception of the good, requires engaging
with one's inherited family history through one's parents and siblings.
143
Forty-five percent of gamete donor offspring agree with the statement,
"The circumstances of my conception bother me." Forty-eight percent of
donor offspring, as opposed to only 19% of adopted adults, agree, "When I
see friends with their biological fathers and mothers, it makes me feel sad,"
and 53% of donor offspring agree, "It hurts when I hear other people talk
about their genealogical background," whereas only 29% of adopted adults
agree with this. After donor offspring reach adulthood, a full 57% agree, "I
feel that I can depend on my friends more than my family," which is about
twice as many as adults who were raised by their biological parents. When
controlling for socio-economic factors, gamete donor offspring are
significantly more likely than their peers raised by their biological parents
to manifest delinquency, substance abuse, and depression. Gamete donor
offspring are 1.5 times more likely to suffer from mental health problems.
Yale psychiatrist Kyle Pruett argues that his research on artificial
reproductive technologies shows that children conceived through gamete
donation and raised without fathers "hunger for an abiding paternal
presence," and this felt need that such children express mirrors the findings
of work on divorce and single-parenthood.
144
These data of course do not
show that it is impossible to flourish as the offspring of gamete donation,
but they show that it is significantly more difficult.
145
There is quite
142
!d. at 360 ("Creating children with the intention that they not have a custodial
father, or alternatively a custodial mother, is potentially just as problematic as
creating children divorced from their biological origins.").
143
This is drawn from ELIZABETH MARQUARDT ET AL., INST. FOR AM. VALUES,
MY DADDY'S NAME IS DONOR: A NEW STUDY OF YOUNG ADULTS CONCEIVED
THROUGH SPERM DONATION, available at http://familyscholars.org/my-daddys-
name-is-donor-2/. This study, which is the first of its kind, attempts "to learn
about the identity, kinship, well-being, and social justice experiences of young
adults who were conceived through sperm donation." The study collects a
representative sample of 485 adults ( 18-45 years old) who said their mother used a
sperm donor to conceive them and compares groups of 562 young adults who were
adopted as infants and 563 who were raised by their biological parents.
144
KYLE PRUETT, FA THERNEED 207 (2000); see also DAVID POPENOE, LIFE
WITHOUT FATHER ( 1996).
145
Cf. Velleman, Family History, supra note136, at 374 n.10 ("Children can of
course be successfully reared by single mothers, if necessary. But children can be
successfully reared, if necessary, in orphanages as well-a fact that cannot justify
deliberately creating children with the intention of abandoning them to an
orphanage. (Imagine a woman who would like to have the experience of
conception and childbirth without incurring the responsibility for raising a child.)
Just as the serviceability of orphanages cannot justify procreation in reliance on
their services, so the serviceability of single parenting cannot justify the creation of
children with the intention they grow up without a father of any kind.").
40
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generally considerable evidence for the importance to children of having
biological ties with their parents as mother and father.
146
Although this empirical evidence should be fairly uncontroversial,
Velleman's argument, by contrast, is more controversial because it makes
moral claims that implicate comprehensive doctrines about sorts of
relationships that are intrinsically valuable in human life. If you fail to
value your family history, and fail to take seriously the significance of your
biological ties of kinship, then on Velleman's account you make a moral
error in not attending to something worthy of respect.
147
Velleman' s
argument can be moderated, however, by weakening the conclusion.
Weakening the conclusion has the effect of strengthening the force of the
argument overall and making it defensible in terms of public reasons.
Whereas Velleman wants to conclude that you ought to value biological
ties, all I need to claim is that you ought to let other people decide for
themselves whether to value their biological ties. In other words, for
human beings this is an important and often life-defining decision to make,
and no one should have the right to make this decision taken away from
him. Therefore, one shouldn't preempt people's choice and foreclose
access to an intimate sphere of human life for them by rendering them
biological orphans through the manner of their conception.
148
The desires
of adults should not trump the just claims of children, and yet this is just
what gamete donation does.
Without the possibility of gamete donation, children cannot be
produced within the context of homosexual unions or other non-traditional
relationships. Even with gamete donation, children conceived from the
procedure are thereby deprived of the conditions ordinarily necessary for
them to develop conceptions of the good, regardless ofthe family structure
present, because developing one's own conception of the good includes
forming one's narrative identity in terms of inherited family history.
Therefore, homosexual unions or other non-standard relationships cannot
satisfy the procreative functional criteria of civil marriage in a politically
146
See, e.g., Kristin Anderson Moore, eta!., Marriage From a Child's Perspective,
CHILD TRENDS RESEARCH BRIEF at 6 (June 2002) ("Research clearly demonstrates
that family structure matters for children, and the family structure that helps
children the most is a family headed by two biological parents in a low-conflict
marriage."); id. at 1-2 ("[I]t is not simply the presence of two parents, ... but the
presence of two biological parents that seems to support children's
development."); Wendy D. Manning & Kathleen A. Lamb, Adolescent Well Being
in Cohabiting, Married, & Single-Parent Families, 65 J. MARRIAGE & FAM. 876,
890 (2003) ("The advantage of marriage appears to exist primarily when the child
is the biological offspring of both parents.") (Quoted in Gallagher, supra note
107).
147
Velleman 's argument rightly does not criticize ordinary adoption. Cases of
adoption are those in which, "The child needs to be parented by someone, and it
cannot or should not be parented by its biological parents, for reasons that
outweigh any value inhering in biological ties." See Velleman, supra notel35136,
at 363.
148
See id. (explaining why nonexistence isn't relevant here).
41
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liberal regime. Only traditional heterosexual marriages are intrinsically
generative and optimal for childrearing. It's worth emphasizing that this
argument could not spring from any special disregard for an intimate union
as homosexual, because the problem lies with the kin-alienation caused by
gamete donation, which is a procedure used much more frequently by
heterosexuals and single people than by homosexual couples. Political
liberalism has no problem with conceptions of the good that reject
traditional sexual morality. Yet traditional marriage is the publicly
reasonable marital form because it happens to be the arrangement that
serves the social need for orderly reproduction over time.
Sally Haslanger has objected to Velleman's argument for the
importance of biological kinship in forming one's own sense of identity.
149
She argues that children are not wronged by being intentionally conceived
as biological orphans via gamete donation or by conventional "closed"
adoptions. Haslanger agrees with Velleman that parents and society have
an obligation "to provide the social bases for healthy identity formation" in
children, but she claims there are "multiple routes to this result," so "the
obligation is only to provide for one or another of these routes." Indeed,
the optimal alternative may be to promote anonymous gamete donation,
among other things, because the practice undermines the cultural
importance granted to biological ties and "it may even be a moral duty to
combat bionormativity."
150
I mention Haslanger's objection only to set it
aside, however, because her counterargument is premised upon her own
controversial comprehensive doctrines, so it is irrelevant to the modified,
publicly reasonable version ofVelleman's argument that I have proposed
here. As Haslanger says, "I enthusiastically endorse the disruption of old
ideologies of the family, and resist new ideologies that entrench and
naturalize the value of biological ties."
151
In any case, throughout her
analysis Haslanger carelessly runs together conventional adoption of
children who have already been born and the "adoption" of donated
gametes, which undermines the force of her objection against Velleman's
original argument as well.
Even someone resolutely opposed to "old ideologies of the family"
should concede that a publicly reasonable argument for the traditional
conception of marriage does not defend that conception qua traditional. It
is irrelevant that the conception of marriage as an exclusive union of a man
and woman, ordered toward the bearing and rearing of children, happens to
be one that is traditional in many societies (but not all, of course). Neither
does a publicly reasonable argument defend traditional marriage because it
is the sort of relationship in which a constituent of some comprehensive
doctrine is realizable, as natural law theorists have argued. There is an apt
comparison with between a publicly reasonable defense of traditional
149
Sally Has Ianger, Family, Ancestry, and Self: What's the Relevance of Biological
Ties? 2 ADOPTION & CULTURE (2009).
150
/d. at I 14.
151
/d. at 92.
42
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marriage and of racial equality. The mid-twentieth century civil rights
movement for racial equality in the United States was deeply Christian.
Many participants in the movement were not Christians of course, and
there were specifically Christian arguments that some segregationists made
against racial equality. Nevertheless, Rev. Martin Luther King and other
key leaders in the movement made Christian arguments in the public square
for racial equality in a biblical idiom that echoed the arguments of the anti-
slavery movement in the 19
1
h century, which were even more
confessionally Christian.
152
The reliance of Rev. King and others upon the
controversial comprehensive doctrines of the Christian moral tradition did
not violate the canons of public reason, however, because the case for
racial equality could be re-stated in nonsectarian terms that expressed a
purely political conception ofjustice.
153
The same is true for the traditional
marriage movement. Much of this movement deploys specifically religious
arguments in its defense, but this fact is irrelevant so long as some of these
arguments can be re-stated in terms of public reasons, as I have done
here.
154
This point merits emphasis because liberal proponents of same-sex
marriage habitually refer to the religious motivations of advocacy for
traditional marriage in the United States as if this fact implies a reductio ad
absurdum of any political argument in favor of traditional marriage. But if
the Christian inspiration of the anti-slavery and civil rights movements did
not render them incompatible with political liberalism, then neither should
the Christian inspiration of the traditional marriage movement.
Furthermore, the translation of the Christian defense of traditional marriage
into public reasons is not a mere hypothetical possibility, because this is
already what Christian politicians and activists have been doing in
practice.
155
In 2004 Republicans in the US Senate proposed a Federal
Marriage Amendment (FMA) to the Constitution, which would have
defined marriage as between one man and one woman. At the time,
Frederick Liu and Stephen Macedo criticized the Republicans' "inarticulate
gestures" in support of the FMA that failed to "amount to an adequate
public justification for legislation." The senators' alleged inarticulacy
about their deeper motivations, which stemmed more or less from
152
On the Christian character of abolitionism see JAMES M. McPHERSON, BATTLE
CRY OF FREEDOM: THE CIVIL WAR ERA 8 (I 988); ERIC FONER, POLITICS AND
IDEOLOGY IN THE AGE OF THE CIVIL WAR 72 (I 980); AILEEN S. KRADITOR, MEANS
AND ENDS IN AMERICAN ABOLITIONISM (I 967). See a/so MICHAEL SANDEL,
LIBERALISM AND THE LIMITS OF JUSTICE 2 I 3 n. 74 (2d ed. I 998).
153
See Rawls, supra note 15. But see JEFFREY STOUT, DEMOCRACY AND
TRADITION (2004) (arguing that Rawlsian public reason cannot successfully re-
state the US civil rights movement independently of its Christian inspiration).
154
It is worth noting that many of the arguments made in favor of same-sex
marriage have been specifically religious.
155
Of course they have done this without the sophistication or precision of an
academic theorist, and they have been responding to political realities rather than
being self-consciously motivated by Rawls' work.
43
001333
traditional Christian natural law theory, "risk[ed] enshrining popular
prejudices in the law," Liu and Macedo claimed.
It may be true that Republican senators lack the philosophical training
to defend the natural law teaching on marriage. But we believe that
most politicians would have no interest in articulating it if they
could.... On Capitol Hill, however, there is a conscious effort,
including among Republicans, to avoid adopting the sort of
"intolerant" and "moralistic" tone often associated with the "Religious
Right." One Republican legislative assistant admitted that his senator
eliminated references to Judeo-Christian values that appeared in the
original draft of his floor statement on the FMA. Another Republican
aid spoke of her senator as "a religious man" who took a position
against gay marriage first and "put words to it" later-words that
never mentioned the influence of his faith. And yet another staffer
conceded that, while her Republican senator's religious views were
important in determining his stance on same-sex marriage, the senator
could not reveal them and risk appearing "homophobic" before his
constituents.
156
Liu and Macedo mention these facts as supposed evidence for the
conclusion that Republicans in the US Senate employed a legislative
strategy that was "cynical, opportunistic, and inconsistent with the equal
respect and fairness that majorities owe to minorities if they are to govern
legitimately. "
157
Of course the irony is that Liu and Macedo accuse the Republican
senators of bad faith for doing precisely what Rawls prescribes citizens in a
pluralistic democracy should do: filter their comprehensive doctrines
through the deliberative screen of public reason before proposing grounds
for legislation. The only inconsistency here is on Macedo's part, since he
professes to be an advocate of public reason.
158
In fact, Liu and Macedo's
description of the Republican legislative process gives a rather exemplary
case study of public reason at work, which is all the more impressive
because it involves a conservative political party, which is officially hostile
to liberalism as a comprehensive doctrine, nevertheless adopting something
like public reason as its de facto regulative ideal.
159
IfLiu and Macedo's
description of the process is accurate, the senators and their aides seemed to
have examined their comprehensive doctrines about marriage and sexuality
and sifted out the aspects of those doctrines that they thought were too
controversial and sectarian, in order to make a publicly reasonable case for
156
Frederick Liu & Stephen Macedo, The Federal Marriage Amendment and the
Strange Evolution of the Conservative Case against Gay Marriage, 38 POL SCI. &
POLITICS 213-14 (2005).
157
/d. at 214.
158
See my discussion supra at 20.
159
Of course the senators must have also been concerned about their own electoral
popularity.
44
001334
traditional marriage in terms that all their fellow citizens could accept.
They knew that many of their fellow citizens could have reasonably
rejected specifically Christian arguments for traditional marriage, so they
circumscribed those arguments and put forward accessible ones instead.
Why impute this process with bad faith? The Republican senators were
doing just what Rawls argues that the Rev. Martin Luther King and his
fellow civil rights activists could have done if their Christian case for racial
equality were translated into public reasons. Indeed, Liu and Macedo go
on to give even more conclusive evidence of the publicly reasonable
character of the Republicans' legislative strategy in 2004:
When asked whether their senator believe homosexual conduct to be
immoral, no legislative aides could respond for none had ever
discussed the matter. One legislative assistant even questioned
whether the morality of homosexual conduct was in any way relevant
to the same-sex marriage debate. Legislators and their staffs on
Capitol Hill seem to lack both the capacity and the motivation to
advance a morally perfectionist case against same-sex partnerships.
160
Liu and Macedo assume that the Republicans were being incompetent
natural lawyers who failed to grasp the dependence of natural law theory's
criticism of gay marriage upon its criticism of homosexual conduct. But
why not see the Republicans as well-intentioned, if unwitting, Rawlsians,
whose lack of animus towards homosexuality is happily confirmed by Liu
and Macedo's account? This interpretation fits plainly with the facts. Liu
and Macedo's description of the legislative process in the Senate bolsters
the publicly reasonable credentials of my argument for heterosexual
marriage, because it shows that the actual partisan debate over marriage is
already primed to be recast in politically liberal terms; the movement for
the FMA in 2004 had already begun to do so.
Now I want to proceed by answering a more general objection to the
argument thus far. Someone might respond to my conclusion: Isn't
marriage about more than having kids? Marriage is about love too.
Marital love can have real social and political implications beyond mere
"affective feelings," since such love characteristically translates into real
practices of caring-caring for the sick, infirm, and elderly in a way that
impersonal institutions cannot. "Parenting partnerships" defined as
exclusively procreative and childrearing would short-sell this caring love
because it doesn't just arise within the context of having and raising
children. Doesn't political liberalism have an interest in supporting it, not
as merely "affective," but as the source of tangible practices of caring that
benefit society?
This response is fundamentally correct. There are good public reasons
within political liberalism for the state to promote and support relationships
of tangible care between citizens, so long as some relationships aren't
160 !d.
45
001335
specially privileged by appeal to sectarian comprehensive doctrines. This
issue connects with a central theme in Rawls' work, which is the social
basis of self-respect. In Theory Rawls identifies self-respect as "perhaps
the most important primary good."
161
He sees self-respect in two aspects:
"First ... it includes a person's sense of his own value, his secure conviction
that his conception of his good, his plan of life is worth carrying out. And
second, self-respect implies confidence in one's ability, so far as it is within
one's power, to fulfill one's intentions."
162
Although a parenting
partnership should no doubt include the relationship of caring that would
foster the primary good of self-respect, it wouldn't suffice. Therefore,
there seem to be good public reasons to include another legal category,
which might be called a "domestic dependency relationship," which
supported relationships of caring that were not also parental. It might
include legal benefits like hospital visitation rights, certain tax credits,
power of attorney, and so on. The eligibility criteria for this status could
not be based on values stemming from sectarian comprehensive doctrines:
two elderly sisters, a pastor and his associate, or a widower and his brother
would be eligible. A homosexual couple too would be eligible for entry,
not because they happened to be homosexual, but because they were
friends who committed to care for and support one another.
163
Proponents of same-sex marriage sometimes concede, for the sake of
argument, that traditional heterosexual marriage may be the ideal context
for raising children, but they point out that there is no reason why the law
must always and only promote the ideal.
164
They infer, therefore, that even
the optimality of a married mother and father's parenting wouldn't
preclude redefining civil marriage to include couples who are homosexual.
It is true that the law needn't always and only promote the ideal, but same-
sex marriage proponents are mistaken to think that this fact provides a
toehold for their argument. Within political liberalism, the burden of proof
for legislative justification lies with the proponent of any policy that would
affect matters of basic justice and constitutional essentials. Heterosexual
marriage meets this burden because the state's limited interest in ensuring
orderly social reproduction is served by the optimality of a married mother
and father's parenting. The contribution of specifically homosexual unions
161
RAWLS, supra note 14, at 386.
162 /d.
163
Someone might argue that access to the primary good of self-respect itself
directly justifies same-sex marriage, because the members of a homosexual couple
might lack self-respect without the social affirmation that the status of civil
marriage confers. This argument fails, however, because in general form it would
lead to the absurd conclusion that anyone could petition for any kind of legal
recognition that would promote his self-respect; thus a Catholic priest might
petition to have his ordination recognized by the state as sacramentally valid, since
without recognition he would be expressively harmed. Therefore, direct claims to
promotion of self-respect, apart from the other criteria of public reason, cannot
justify specific policy prescriptions.
164
Cf Liu & Macedo, supra note 156.
46
001336
to orderly social reproduction is no different from the contribution of other,
non-sexual affective unions, such as the ones mentioned in the previous
paragraph. This is why a legal category for domestic dependency
partnerships that is sex-neutral and orientation-neutral would meet all the
publicly reasonable needs of non-standard families and real caring
relationships. For example, there is at present no reason to think that a gay
couple raising adopted children meets the need for orderly social
reproduction any better or worse than, say, a widower and his bachelor
brother who partner to raise the widower's children. The law would
unreasonably privilege the gay couple and implicitly denigrate the widower
and his brother if, on account of the former couple's sexual orientation
alone, its relationship was distinguished by making it eligible for civil
marriage. This is why public reason still excludes homosexual unions from
civil marriage, even granting that there is no general imperative for the law
to promote the ideal.
Even with a further legal category of domestic dependency
relationships whose entry criteria are blind to controversial ideals about the
worth of kinds of sexual intimacy, enshrining traditional marriage in the
law may still have the consequence of reinforcing traditional sexual mores
and perhaps even of discouraging the social acceptance of homosexuality
and other nontraditional forms of sexual expression as normal. It would be
foolish to deny this real possibility. These possible consequences do not
undermine the publicly reasonable case for traditional marriage, however,
because political liberalism only involves a neutrality ofjustification and
aim for political conceptions of justice and not a neutrality of effect.
It is surely impossible for the basic structure of a just constitutional
regime not to have important effects and influences as to which
comprehensive doctrines endure and gain adherents over time; and
it is futile to try to counteract these effects and influences, or even
to ascertain for political purposes how deep or pervasive they
are.I6S
It is impossible for every theory or application of justice to be neutral in its
effects on the holders of different reasonable comprehensive doctrines.
Even if this means that a politically liberal society will effectively suppress
radical programs "to make every effort to disrupt the hegemony of the
[nuclear family] schema"
166
and this schema's "heteronormative models of
the family,"
167
this suppression is so much the worse for such programs,
which anyway sit uneasily in a pluralistic democracy.
Although the argument I make here is novel because it is presented
systematically in Rawlsian terms, its substance is not entirely unfamiliar. I
have already shown how, according to Liu and Macedo's unintentionally
165
RAWLS, supra note 14, at 193.
166
Has1anger, supra note 149, at 115.
167
Id at 114.
47
001337
revealing account, the 2004 Republican effort to pass the FMA in the US
Senate was roughly in accord with public reason. Now I wish to highlight
how the state's legitimate interest in ensuring orderly social reproduction
appears to be an emerging theme of American jurisprudence, as reflected in
the decisions of U.S. state and federal courts from 2000 to 2012 that deal
with same-sex unions. During this period, eight decisions upheld the
traditional definition of civil marriage.
168
One state court decision
mandated "civil unions" that are equivalent in all but name to traditional
civil marriage.
169
Four decisions overturned traditional civil marriage and
mandated same-sex marriage.
170
All eight decisions upholding traditional
marriage accepted the defendants' appeal to the legitimate state interest in
procreation and childrearing. Indeed, even in the New Jersey Supreme
Court case that ordered civil unions, the majority notes:
The State does not argue that limiting marriage to the union of a
man and a woman is needed to encourage procreation or to create
the optimal living environment for children. Other than sustaining
the traditional definition of marriage, which is not implicated in
this discussion, the State has not articulated any legitimate public
need [for attaching specific benefits and burdens to married
heterosexual couples].
Thus, the Court implies that the State could have justifiably argued against
homosexual civil unions if it had appealed to encouraging procreation or
childrearing. The Connecticut Supreme Court mandated same-sex
marriages in Kerrigan v. Dept. of Public Health (2008), but here too, the
majority decision emphasizes:
we note that the defendants expressly have disavowed any .. .
belief that the preservation of marriage as a heterosexual institution
is in the best interest of children, or that prohibiting same-sex
couples from marrying promotes responsible heterosexual
procreation ....
168
See Conaway v. Deane, 932 A.2d 571 (Md. 2007); Hernandez v. Robles, 855
N.E.2d 1 (N.Y. 2006); Andersen v. King County, 138 P.3d 963 ~ W a s h . 2006) (en
banc);Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8
1
Cir. 2006);
Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005); Wilson v. Ake, 354 F.
Supp. 2d 1298 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash.
2004); Standhardt v. Superior Court ex rei. Cnty. of Maricopa, 77 P.3d 451 (Ariz.
Ct. 2003), reh 'g denied, 2004 Ariz. LEXIS 62, May 25, 2004.
169
Lewis v. Harris, 908 A.2d 196 (N.J. 2006).
170
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Kerrigan v. Dep't of Pub.
Health, 957 A.2d 407 (Conn. 2008); In reMarriage Cases, 183 P.3d 384 (Cal.
2008); Goodrich v. Dep't ofPub. Health, 798 N.E.2d 941 (Mass. 2003). A fifth
case was the 9
1
h Circuit's February 2012 decision in Perry v. Brown reaffirming the
district court's overturning of California's Proposition 8, which I discussed at the
outset of this article.( Perry v. Brown, 671 F. 3d 1052, (9
1
h Cir. 2012) ).
48
001338
Therefore, only three decisions out of thirteen rejected the state defense of
traditional marriage when that defense was expressed in terms of
promoting procreation and childrearing. Furthermore, the three anomalous
cases-Goodridge v. Dept. of Public Health (Mass. 2003), In reMarriage
Cases (Cal. 2008), and Varnum v. Brien (Iowa 2009)-were decided
explicitly on the basis of moral comprehensive doctrines and violated the
ideal of public reason.
IV. ARGUMENTS FOR SAME-SEX MARRIAGE ARE PUBLICLY
UNREASONABLE
The 2003 Goodridge decision of the Supreme Judicial Court of
Massachusetts ignited the present same-sex marriage debate in the United
States. "Simply put, the government creates civil marriage," the Court
declared, and then inferred that the state-via the mandates of the Court-
was free to refashion the terms of civil marriage according to values
stemming from what its judges decided were its comprehensive
doctrines.
171
Thus, the Court contradicted Rawls's account of the state's
limited and functional state interest in marriage and the family, and usurped
for the state a power that is incompatible with a pluralistic democracy
guided by public reason. Impetus for Goodridge presumably came from
the U.S. Supreme Court's decision Lawrence v. Texas, which was handed
down several months before Goodridge. In Lawrence, the Court violated
public reason even more egregiously than Goodridge by finding in the U.S.
Constitution a highly sectarian conception of liberal autonomy. Justice
Anthony Kennedy, writing for the majority in Lawrence, announces:
Freedom extends beyond spatial bounds. Liberty presumes an
autonomy of self that includes freedom of thought, belief,
expression, and certain intimate conduct. The instant case involves
liberty of the person both in its spatial and more transcendent
dimensions.
172
Kennedy proceeds to quote Planned Parenthood v. Casey: "At the heart of
liberty is the right to define one's own concept of existence, of meaning, of
the universe, and of the mystery of human life."
173
The remarkable fact
about this decision is not the holding in Lawrence, which struck down
irregularly enforced and unpopular anti-sodomy laws, but the sectarian
principle the Court announced in support of it and injected into Federal
case law.
174
One needn't have any sympathy for anti-sodomy laws to see
171
Goodridge,v. Dep't ofPub. Health, 798 N.E.2d 941,945.
172
Lawrence v. Texas, 539 U.S. 558, 562 (2003).
173
Lawrence, 539 U.S. at 574.
174
The philosopher John Deigh wrote at the time in an editorial for Ethics, the
preeminent academic journal for moral philosophy: "What is striking about this
remark [i .e. ' Liberty presumes an autonomy of self. ... '] is its language. One would
49
001339
that the purported right to define one's own concept of the universe, or of
the autonomy of the self generally, are illegitimate grounds for judicial and
legislative actions, because they are manifestly sectarian pieces of
comprehensive liberal doctrines.
175
The pro-same-sex marriage arguments of philosophers and legal
theorists are no better than those of the judges in Goodridge and
Lawrence.
116
The non-public, moralistic character of arguments in favor of
same-sex marriage is often obscured by a rhetorical maneuver, however,
which frames the debate as if it were simply about providing equal and fair
access to an agreed-upon, uncontroversial social good. In brief, such
rhetorical arguments for same-sex marriage proceed as follows. First,
"marriage" gets implicitly defined as any affective sexual relationship
between two adults. Second, it is argued that since the state promotes
"marriage," it should promote it fairly and with equal respect, not denying
access to anyone who is eligible. Third, it is argued that since gays and
lesbians can obviously have affective sexual relationships, there is no
reason to preclude them from marrying, because to do so would be to
discriminate against them as a class. This argument is often quite
successful rhetorically, but it relies on a question begging definition of
"marriage."
Mary Lyndon Shanley, for example, begs the question when she says,
"Despite their differences, neither side [in the same-sex marriage debate]
questions whether marriage is a good thing and whether it should be
recognized by the state; their argument is over who should be able to
look in vain for similar language in the majority opinions of the major cases from
the I 960s and I 970s on which this opinion rests. These are the famous cases in
which the Court found a fundamental right of privacy in the penumbra and
emanations of the rights enumerated in the Bill ofRights. The authors of those
opinions, in explaining the value of the liberty this right of privacy guarantees,
speak of traditional values going back to a time before the founding of the United
States, the sanctity of the home and the privacies of life, the sacredness of
marriage, and the security of individuals in their person and possessions from
unwarranted governmental intrusions. Nowhere, however, does one find reference
to anything like the 'autonomy ofseir to which Justice Kennedy, the author of the
majority opinion in the Texas case, appeals." Editorial, I 14 ETHICS (Oct. 2003),
available at http://www.jstor.org/stable/I 0. I 086/380 I 03.
175
Presumably the Court could have overturned the anti-sodomy statute on
alternative, publicly reasonable grounds, without appealing to the sectarian liberal
values proclaimed by Justice Kennedy. There do not appear to be any publicly
reasonable arguments for criminalizing private sex acts between consenting adults,
so in principle there could have been a more narrowly tailored, liberty-based
objection to anti-sodomy laws that avoided relying upon controversial
comprehensive doctrines. I owe this clarification to Frank Michelman.
176
See, e.g., Cass Sunstein, The Right to Marry, 26 CARDOZO L. REV. 2081,(2005)
("[M]arriage is a government run licensing system, no more and no less," which
happens to come with the conferral of material benefits and expressive legitimacy).
50
001340
marry."
177
On the contrary, the debate is precisely about whether marriage,
according to its historic meaning, is a good thing or not. Gay rights
activists think that marriage, historically understood, is a bad thing because
it has the effect of establishing heterosexuality as socially normative, and
by implication, they argue that it "inflicts profound psychic damage" on
people who embrace a homosexual identity as part of their self-image.
178
They propose abolishing marriage and replacing it with a new legal
category that solemnizes any affective sexual relationship between any two
adults and thus discourages sexual complementarity as a social norm. It is
politically useful to call this new category "marriage," too, because it
conceals just how expressively significant the change is, and makes it more
likely to convince wary voters to accept the change.
179
But to define
"marriage" as a relation equally open to heterosexual and homosexual
couples, as Shanley does, is first, simply to beg the question against the
natural law defenders of traditional marriage, for whom sexual
complementarity is marriage's sine qua non, and second, to impose an
alternative comprehensive doctrine. In other words, the natural law
theorists claim that marriage is essentially heterosexual because they claim
that only heterosexual sex is valuable.IIJJ Liberals like Shanley think that
any kind of consensual sex is valuable, so they reject the natural law
account and want to redefine "marriage."
Consider the professedly Rawlsian, constitutional argument put forth
by Frank Michelman in favor of same-sex marriage. Michelman states
correctly that, within political liberalism, "no political value can inhere in
hostility or opposition to same-sex partnerships 'as such,' which can only
reflect some religious or otherwise sectarian ethical doctrine." 1o1 From the
fact that opposition to same-sex unions as such would be sectarian, he
concludes that same-sex unions as such must be legally endorsed. But this
inference is fallacious. In order for legal recognition to be justified, there
needs to be a positive case made in terms of public reasons for why the
state should pick out and enshrine specifically homosexual relationships
among all the other affective relationships that there are.
Why limit the entry conditions to a parenting partnership to people
who happen to be engaged in a romantic sexual relationship? Surely two
brothers, an aunt and her grown niece, or a priest and his housekeeper, say,
might also wish to enter a legally supported parenting partnership in order
to assist them in raising a child who has come under their care. Traditional
177
MARY LYNDON SHANLEY, Afterword, in JUST MARRIAGE 109, at 110 (Deborah
Chasman & Joshua Cohen eds., 2004).
178
MARTHA NUSSBAUM, FROM DISGUST TO HUMANITY: SEXUAL ORIENTATION
AND CONSTITUTIONAL LAW {Geoffrey R. Stone eds., 2010).
179
It is noteworthy that although she professes to follow the limits of public
reason, Elizabeth Brake argues for retaining the term "marriage," even though she
proposes replacing its substance with generic social networks of care, in order to
help induce public acceptance of homosexuality and gay sex.
180
See ROBERTP. GEORGE, INDEFENSEOFNATURAL LAW (2001).
181
Michelman, supra note 33, at 413.
51
001341
marriage was in the past indeed conceived of as in part a parenting
partnership and Michelman thinks that political liberalism requires
broadening that partnership just a little bit to include his preferred class,
which is the couple who happens to be engaged in a homosexual romance.
But this selective extension of marriage to homosexual unions as such,
which singles out homosexual relationships as specially significant,
discriminates against other intimate relationships (e.g. fraternal, non-sexual
ones) which appear to be at least equally good candidates for parenting as
homosexual unions.
It is true that the recent statutes and decisions imposing gay marriage
do not explicitly refer to homosexual orientation as the empowering
criterion that makes two men or two women eligible for civil marriage.
182
But they do so implicitly. These laws invariably maintain the traditional
prohibitions against consanguinity in marriage, even as they redefine
marriage to include couples of the same sex. If these laws really were blind
to sexual orientation and erotic intimacy as such-as public reason
requires-then they wouldn't maintain consanguinity prohibitions. By
maintaining consanguinity prohibitions, however, these laws presume that
couples entering marriage are sexually intimate, which is why they wish to
prohibit incest, and thus they channel the state's affirmative endorsement of
gay sex.
183
The selective extension of legal marriage to homosexual unions
in this way illicitly deploys the law's coercive and pedagogical power to
promote a controversial piece of sectarian liberal sexual morality.
Michelman's argument goes awry because he fails to attend to
Rawls's explicitly functional conception of marriage as a procreative and
childrearing partnership. Michelman, like others, neglects this question
altogether. In a footnote he says:
My aim here is strictly limited to confirming the general
receptivity ofRawlsian thought to fundamental complaint against a
publicly and legally privileged form of domestic association that is
closed to same-sex partners. I do not address the intriguing
question of what this thought has to say about the justifiability of
making marriage a publicly recognized, legally consequential
status at all, as opposed to a purely "private" matter. HH
182
Professor Michelman pointed this out to me in personal correspondence.
183
Elizabeth Brake appreciates this point in effect when she notes that the state's
"special priority accorded to marriage and marriage-like relationships marginalizes
other forms of caring relationships. To the extent that it sustains
'amatonormativity'-the focus on marital and amorous love relationships as
special sites of value-marriage undermines other forms of care." BRAKE, supra
note 70, at 5. What Brake fails to see is that the state's prioritizing interest in
heterosexual marriage isn't necessarily "amatonormative" because heterosexual
marriage, unlike gay marriage, is publicly justifiable in terms of orderly
reproduction.
184
/d. at 423, n. 64.
52
001342
The "intriguing question" cannot be avoided. First of all, to do so obscures
the basic needs of children and the interest that children have in their
parents' marriage as a public good which meets those needs. The state
interest in marriage is not merely as a benefit for adults; but Michelman is
insensitive to this fact by failing to consider what the function of legal
marriage is.
More generally, it is absurd to attempt to assess whether some
individual or group has a claim on a public benefit, or liability to some
public burden, without first determining what the state interest is in
offering the benefit or imposing the burden. The nature of the state interest
in the family will determine whether and what publicly reasonable
arguments are available to justify restricting or expanding access to the
legal category "marriage." Consider an analogy. Suppose that U.S.
Medicaid policy had a health benefit that provided African-Americans with
vouchers for a sickle-cell anemia diagnostic test. Caucasian, Latino, and
Asian Medicaid recipients would not be eligible for the voucher. People of
any ethnicity may suffer from sickle-cell anemia and might benefit from
the test, so is there any publicly reasonable argument for restricting access
to public benefits by the "suspect classification" ofrace? If we adopted
Michelman's approach, we would immediately have to conclude no, thus
"confirming the general receptivity ofRawlsian thought to fundamental
complaint against a publicly and legally privileged" form of medical
benefit that is closed to Caucasians, Latinos, and Asians. But this
conclusion is absurd, since there is, in fact, a straightforward public reason
for the imagined policy: people descended from sub-Saharan Africans have
a genetic predisposition to sickle-cell anemia (since apparently the relevant
gene also protects against malaria) and therefore it is reasonable for the
state to allocate scarce resources using the otherwise suspect classification
of race, since race happens to indicate likely presence of the disease.
Michelman is representative among Rawlsians who have failed to
grasp the import of political liberalism's functional conception of marriage
and the family as ensuring orderly social reproduction over time. Rawlsians
tend to be sectarian liberals and they have relied illicitly on their
comprehensive religious or secular doctrines about "liberated" sexual
morality in order to single out homosexual relationships as such for special
promotion, thereby violating the ideal of public reason and the political
conception of justice. But homosexual relationships as such lack any claim
in justice for state recognition. In this regard, homosexual orientation is on
a political par with, say, a traditional order of chivalry or theology of
sacramental rites. The Knights of Malta and the Jesuits, for example, may
be legally recognized as non-profit charitable associations that indirectly
contribute to the political common good, but they cannot, for the politically
liberal state, be recognized as a titled nobility or sacramental priesthood,
respectively. In the same way, a gay couple may be legally recognized as
being party to a generic domestic dependency relationship, but this cannot
be endorsed as a "marriage".
53
001343
Cass Sunstein has offered an argument for same-sex marriage based
on U.S. constitutional law that differs from Michelman's.IBS Sunstein's
argument is interesting because he hedges his claims in a way that betrays
sensitivity to a counterargument against same-sex marriage in Rawlsian
terms along the lines I am arguing here but he fails to address the
counterargument nevertheless. Sunstein canvasses and rejects three
possible constitutional routes for requiring the legal recognition of same-
sex unions as marriages: via (a) the right to privacy and "substantive due
process," (b) the right to equal legal treatment without irrational animus,
and (c) the right against legal treatment according to a "suspect
classification." Each of these grounds has its weaknesses, so Sunstein
proposes a fourth strategy rooted in the equal protection clause. He claims
that it is "artificial and unfortunate" for the law to divide gender into male
and female-although noting reassuringly that "[t]here are men and
women, to be sure"-because the "diversity of human character" in private
life and public life alike cannot be captured by just two complementary
categories. Sunstein thinks that the complementary categories of male and
female traditional marriage "undergirds the system of caste based on
gender" and discriminates against homosexual relations. This
discrimination is really a form of prohibition, like old the prohibitions on
miscegenation: "But prohibitions are invalid under the equal protection
clause."lno Sunstein therefore concludes:
In terms of their purposes and effects, bans on same-sex marriage
have very much the same connection to gender caste as bans on
racial intermarriage have to racial caste. I am speaking here of
real-world motivations for these bans, and I am assuming, as does
the current law, that impermissible motivations are fatal to
legislation. The claim from neutrality is implausible in this context
for exactly the same reason that it was implausible in Loving [v.
Virginia]. To say this is not to say that the ban on same-sex
marriages is necessarily unacceptable in all theoretically possible
worlds. In our world, the ban is like a literacy test motivated by a
discriminatory purpose, or a veterans' preference law designed to
exclude women from employment.
187
From a politically liberal perspective, Sunstein's argument fails. Note that
he relies on empirical assumptions about what motivates support for
traditional marriage. He assumes that such motivations have a
discriminatory purpose because presumably he thinks that they are rooted
in animus or controversial religious beliefs. As I noted earlier, however,
185
But Cass Sunstein does reproduce Michelman's error of failing to examine the
public function of civil marriage, which undermines his conclusion in favor of
same-sex marriage. See Sunstein, supra note 176, at 2081.
186
Cass R. Sunstein, Homosexuality and the Constitution in SEX, PREFERENCE,
AND FAMILY 221 (David Estlund & Martha Nussbaum eds., 1998).
187
/d. at 219.
54
001344
Martin Luther King's support of racial equality was, in the actual world,
motivated by controversial religious beliefs, and this did not make the
cause of racial equality illegitimate in a pluralistic democracy, because
King's support could be re-stated in publicly reasonable terms. As with
civil rights, so with traditional marriage. In the actual world, it is the case
in favor of same-sex marriage that has impermissible motivations that are
fatal to legislation, but unlike the civil rights movement, there is not an
alternative, publicly reasonable argument available to same-sex marriage
proponents.
William Eskridge is another prominent proponent of same-sex
marriage who, like Michelman, frames the debate as between proponents of
uncontroversial equality and neutrality (his own side) and perfectionist
moralizers (his opponents).
188
This framing of the debate stacks the deck
carefully in order to ensure that only opponents of same-sex marriage
appear to be making contentious moral claims, and therefore are vulnerable
to being excluded by public reason.
189
But Eskridge's argument is
unsuccessful for the same reasons that Michelman's argument fails; his
presuppositions are in fact just as controversial and comprehensive as the
assumptions of the conservative perfectionists he attacks, and he never
bothers to consider the possibility of a non-perfectionist, publicly
reasonable defense of conjugal marriage, such as I have proposed here.
Carlos A. Ball argues that perfectionist politics is unavoidable, and
because there is a widely held egalitarian argument for same-sex marriage,
same-sex civil marriage should be recognized in law. Ball argues for legal
recognition because, "when the State makes distinctions among intimate
relationships in order to recognize and support some (but not all) of them, it
must make assessments regarding the value and goodness of those
relationships." Ball claims that once the state "is in the business of
recognizing and protecting some intimate relationships and not others,"
then the state inevitably must take sides and legislate from some
controversial comprehensive doctrine. Ball concludes from this that the
public debate over legally recognizing same-sex unions cannot be about
"whether the State should remain morally neutral on the goodness and
value of those relationships," but about what sorts of intimate personal
relationships are intrinsically valuable, all things considered.
190
Ball's
argument falters because he never gives any persuasive reasons for
thinking that perfectionism really is unavoidable. Where he does consider
Rawls's political liberalism specifically, in fact, his analysis is curiously
results-driven and ultimately question-begging.
188
William N. Eskridge Jr., The Relational Case for Same-Sex Marriage in JUST
MARRIAGE 58, at 58-59 (Mary Lyndon Shanley et al. eds., 2004).
189 /d.
19
Carlos A. Ball, Against Neutrality in the Legal Recognition of Intimate
Relationships, in MORAL ARGUMENT, RELIGION, AND SAME-SEX MARRIAGE:
ADVANCING THE PUBLIC GOOD 75, at 79 {Gordon A. Babst et al. eds., 2009).
55
001345
It is no longer sufficient to argue that homosexual conduct is morally-
neutral behavior deserving only toleration. If our society is going to
recognize same-sex marriage, the supporters of such marriages must
incorporate perfectionist ideals into their arguments-they must be
prepared to speak not only in terms of individual rights but also in
terms of collective goods and the moral value of same-sex
relationships.
191
Ball does not ask, is political liberalism true? Rather, he asks, will political
liberalism get me the results I want? And what he wants is
... to provide the theoretical framework for a gay rights movement
that is not only concerned with repealing sodomy statutes and
guaranteeing nondiscrimination in employment and housing, but also
aims to attain society's acceptance of homosexual relationships.
192
Ball's maneuver is simply beside the point. He is correct that political
liberalism is incompatible with his moralistic program-just as it is
incompatible with the moralistic program of natural law theory and other
comprehensive doctrines-but this fact alone does not bear on the truth or
falsehood ofpoliticalliberalism.
193
Ball may be right when he declares,
"The struggle for societal acceptance of same-sex relationships entails a
frontal attack on the deeply held views of many Americans .... "
194
If so,
then this struggle is precluded by political liberalism, which has no room
for frontal attacks against fellow citizens' conceptions of the good.
191
Carlos A. Ball, Moral Foundations for a Discourse on Same-Sex Marriage:
Looking Beyond Political Liberalism, 85 GEO. L.J. 1871, 1881 {1996-1997).
192
!d. at 1882.
193
Ball's ultimate strategy seems rather cynical, for he recommends endorsing
liberal perfectionism or liberal neutrality whenever it makes prudential sense for
the sake of promoting gay rights: "The theoretical framework that I propose in this
article is not meant to be appropriate in all contexts and circumstances. There may
be instances, whether in litigating before a court or in lobbying a legislature on a
particular issue, when relying on neutral ideals such as equality, tolerance, and
privacy, and eschewing issues of morality and values, may make prudential sense."
!d. at 1881.
194
!d. at I 927. Contrast Rawls: The Idea of Public Reason Revisited, 64 CHICAGO
L. REV. 765, 776 (I 997): "Central to the idea of public reason is that it neither
criticizes nor attacks any comprehensive doctrine, religious or nonreligious, except
insofar as that doctrine is incompatible with the essentials of public reason and a
democratic polity." And id. at 782: " ... no one is expected to put his or her
religious or nonreligious doctrine in danger, but we must each give up forever the
hope of changing the constitution so as to establish our religion's hegemony, or of
qualifying our obligations so as to ensure its influence and success. To retain such
hopes and aims would be inconsistent with the idea of equal basic liberties for all
free and equal citizens."
56
001346
Unlike Ball, Ralph Wedgwood has offered an argument for same-sex
marriage that is meant to be framed in morally neutral terms.
195
W edgwood
gives a conceptual analysis of "marriage" using his intuitions about what
marriage involves -and extensive assertions about what "we" think-and
he concludes that marriage shouldn't "exclude" homosexual couples. This
conclusion is unsurprising; Wedgwood titles his article "The Fundamental
Argument for Same-Sex Marriage," so presumably it was safe to infer
without reading the analysis that he thought same-sex marriage would
accord with his intuitions. The three essential features that Wedgwood
thinks define "modern Western marriage" are: "(1) sexual intimacy; (2)
domestic and economic cooperation; and (3) a voluntary mutual
commitment to sustaining this relationship."
196
Homosexual relationships
obviously can include these features, so he concludes that civil marriage
should be extended to homosexual couples. Although W edgwood does
not seem to notice it, his analysis is rather overbroad, because if he is right,
many pimps and prostitutes will tum out to be "married" to each other,
since surely there are sexually intimate, domestically and economically
cooperative pimps and prostitutes who are mutually committed to
sustaining their relationship.
W edgwood argues that the essential social function of civil marriage is
therapeutic affirmation for certain people's intimate relationships: the
reason for civil marriage "is simply that many people want to be married,
where this desire to marry is typically a serious desire that deserves to be
respected."
197
What they want is the common public status conferred by
social recognition of their relationship. Thus civil "marriage furthers a
fundamental interest in mutual understanding, both between the couple and
the rest ofsociety."
198
It is no doubt correct that civil marriage has the
effect of reinforcing a married couple's social identity and status, but this
cultural effect need not-and in a politically liberal society cannot-be the
justificatory grounds for a publicly reasonably marriage policy, unless the
particular conception of civil marriage is neutral relative to controversial
comprehensive doctrines. By this score, Wedgwood's argument, like the
others, fails to justify enshrining same-sex unions in law.
CONCLUSION
I have been arguing for a conception of civil marriage that happens to
be the traditional one, but the argument I have given does not depend upon
tradition, religion, or most notably, upon controversial philosophical
195
See Ralph Wedgwood, The Meaning of Same-Sex Marriage in THE NEW YORK
TIMES, May 26,2012. Available at
http:/ I opinion a tor. b Jogs. nytimes .com/20 12/05/24/marriage-meaning -and-equality/
(for a recent restatement of his argument).
196
Ralph Wedgwood, The Fundamental Argument for Same Sex Marriage, 7 J.
POL. PHIL. 225, 229 ( 1999).
197
/d. at 235.
198
/d. at 236.
57
001347
doctrines about the natural law or human flourishing. I have made a
publicly reasonable case for defining civil marriage as the union of a man
and a woman, and for legally recognizing and promoting families headed
by two married parents who are the biological mother and father of their
children. The ground for such a policy is, as Rawls argues the ground of
any marriage and family policy must be, the permanent and basic social
need for orderly reproduction over time. A family headed by two married
parents who are the biological mother and father of their children is the
optimal arrangement for maintaining a socially stable fertility rate, rearing
children, and inculcating in them the two moral powers requisite for
politically liberal citizenship. Furthermore, I have canvassed the available
arguments in favor of recognizing homosexual relationships (or
polyamorous relationships, etc.) as civil marriages, and shown how these
arguments depend essentially upon controversial moral doctrines drawn
from various comprehensive liberal visions of the good life and fail to link
same-sex marriage with the social need for orderly reproduction over time.
The nonpublic and sectarian character of the case for same-sex marriage
entails that liberals who are sympathetic with the idea of public reason-
and this seems to be most liberals-should reject the case for same-sex
marriage.
The publicly unreasonable nature of the arguments for same-sex
marriage should resolve the contentious marriage debate along the lines of
a principled, political consensus in favor of conjugal marriage, because the
ideal of public reason applies quite broadly across the various partisan,
legislative and judicial spheres in which this debate is engaged today. As
Rawls argues:
[t]he ideal of public reason does hold for citizens when they engage
in political advocacy in the public forum, and thus for members of
political parties and for candidates in their campaigns and for other
groups who support them. It holds equally for how citizens are to
vote in elections when constitutional essentials and matters of basic
justice are at stake.... It applies in official forums and so to
legislators when they speak on the floor of parliament, and to the
executive in its public acts and pronouncements. It applies also in
a special way to the judiciary and above all to a supreme court in a
constitutional democracy with judicial review.
199
If the rational basis standard of constitutional jurisprudence is the standard
of public reason, then judges have a positive duty in upholding the
Constitution to strike down the sectarian legislation that has established
same-sex marriage. Furthermore, the broad scope of public reason requires
liberal citizens to abandon their unreasonable advocacy for same-sex
marriage that divides and destabilizes the public forum, and fails to treat as
equals their fellow citizens who reasonably reject their sectarian arguments.
199
RAWLS, supra note 14, at 215-26.
58
001348
Some liberals might prefer to jettison their commitment to the ideal of
neutrality if they recognized that neutrality, or public reason, required
opposing same-sex marriage and supporting heterosexual marriage. As the
gay activist and journalist Andrew Sullivan has cogently argued, however,
liberalism
has most to lose when it abandons the high ground of liberal
neutrality. Perhaps especially in areas where passion and emotion are
so deep, such as homosexuality, the liberal should be wary of
identifying his or her tradition with a particular way of life, or a
particular cause; for in that process, the whole potential for
liberalism's appeal is lost. Liberalism works-and is the most
resilient modem politics-precisely because it is the only politics that
seeks to avoid these irresolvable and contentious conflicts.
200
Of course perfectionist liberals would disagree with Sullivan that neutrality
is as central to the broad tradition of liberalism as he suggests.
Nevertheless, perfectionist liberals who support same-sex marriage would
be mistaken if they assumed that they are immune to the argument I have
given here, simply because they reject its key premise, which is the idea of
public reason.
This would be mistaken because the concerns for orderly social
reproduction and the rearing of children who are capable of forming their
own conception of the good are concerns that implicate other substantive
liberal values, in particular the preeminent value of autonomy. Although
the task itself exceeds the scope of this essay, it would be possible craft a
parallel, liberal perfectionist version of the publicly reasonable case for
heterosexual marriage, because orderly social reproduction promotes
autonomy. Even if the absence of same-sex marriage restricts the
autonomy of those homosexual couples who might wish to be legally
married, this restriction may very well be compatible with holding that a
substantive conception of moral autonomy should be the governing value
for politics. As Joseph Raz has argued:
[a] moral theory which values autonomy highly can justify restricting
the autonomy of one person for the sake of the greater autonomy of
others or even of that person himself in the future. That is why it can
justify coercion to prevent harm, for harm interferes with autonomy.
But it will not tolerate coercion for other reasons.
201
As we have seen, children are harmed when they are intentionally
conceived and reared in situations that deprive them of the social bases of
200
ANDREW SULLIVAN, VIRTUALLY NORMAL: AN ARGUMENT ABOUT
HOMOSEXUALITY at 162-136( 1996).
201
JOSEPH RAz, THE MORALITY OF FREEDOM 419 ( 1986). Raz himself endorses
same-sex marriage , but it is not clear that he should, given the considerations
about orderly social reproduction, which he does not consider. !d. at 234.
59
001349
forming an identity and conception of the good.
202
In such situations, their
ability to exercise autonomy is diminished, and children are denied what is
due to them in justice.
One can harm another by denying him what is due to him. This is
obscured by the common misconception which confines harming a
person to acting in a way the result of which is that that person is
worse off after the action than he was before. While such actions do
indeed harm, so do acts or omissions the result of which is that a
person is worse off after them than he should then be.
203
Thus there are promising grounds for developing a liberal perfectionist
argument, which is framed in terms of promoting autonomy, for enshrining
heterosexual marriage in the law.
However that may be, the politically liberal case for heterosexual
marriage as I have presented it is a philosophical argument, framed in terms
of public reason, about the importance of family history to the development
of one's narrative identity and conception of the good. This argument
relies in part upon a number of plausible empirical claims, but like all
empirical claims, these are subject to qualification and revision based on
better data in the future. At the present moment, nationally representative,
longitudinal studies of child rearing by homosexual couples do not exist.
Probably the best study to-date is the NFSS and it establishes a significant
correlation between parents who have had a same-sex relationship and
dysfunctional outcomes for children. The existing studies that purport to
show that homosexual parenting is harmless suffer from fatal
methodological defects.
204
I have cited some of the many reliable studies
that robustly indicate the importance for children of having a married
mother and father to whom they are biologically related.
205
Although
evidence for this claim, like any actual evidential claim, could be stronger
by theoretical criteria, it is extremely strong for practical political purposes,
and indeed, it is decisive. This is because, in politics, you can't beat
somebody with nobody, and in the debate over marriage there isn't any
competitor to the case I have made here, for there is no publicly reasonable
argument in view that would support same-sex civil marriage. There may
be good public reasons for establishing generic "civil unions" or "domestic
dependency partnerships" in the law, as I have shown, but homosexual
orientation cannot be a condition for entry into such a legal status.
202
Recall that such cases do not include conventional adoption, in which the
biological parents are for some reason incapable of rearing the children they have
already had.
203
RA.z, supra note 201, at 416.
204
See Affidavit of the University of Virginia sociologist, Professor Steven Lowell
Nock, in Halpern v. Attorney General of Canada, Case No. 684/00 (Ont. Sup. Ct.
Justice 2001) (describing serious methodological defects in studies and scholarship
about the parenting of children by homosexual couples).
205
See Sections II-III supra.
60
001350
The only problem that the politically liberal case on behalf of
heterosexual marriage faces, it seems, is the extreme self-confidence of the
many liberal proponents of legally recognizing homosexual relationships.
But self-confidence is no substitute for reasonable argument, and the
intrinsic value of any intimate sexual relationship as such is simply not a
public matter for political liberalism. In a recent review article of several
books arguing for same-sex marriage, Andrew Lister declares, "it is
obvious that same-sex marriage is preferable to opposite-sex-only
marriage," and he concludes that "[t]he case for same-sex marriage seems
so strong to its proponents, that the issue seems to present no interesting
normative problems-only the psychological problem of explaining
resistance and the strategic problem of overcoming it. "
206
This attitude is
no doubt widespread among liberals, but if liberals are going to participate
as reasonable citizens in a pluralistic society animated by fairness, they will
have to learn what John Rawls has to teach. Rawls's lesson is that
reasonableness excludes political fundamentalism and requires recognizing
the fallibility of one's beliefs and the duty of civility to moderate one's
transcendent claims to having the whole truth. This lesson is especially
important for the influential majorities within the academy, judiciary, and
news and entertainment media that seem intent on legislating their deeply
held convictions about sexuality. As Stephen Macedo aptly notes:
The liberal commitment to public reasonableness stands for the view
that the mere fact of power-even of overwhelming numerical
superiority combined with passionate conviction-is not enough to
establish the legitimacy of laws and policies in the face of principled
objections. [Because] ... the politically powerful need to provide an
adequate public justification: reasons that can be openly presented to
others, critically defended, and widely shared by reasonable people?
07
Liberals cannot reasonably expect everyone to endorse their personal views
about sexual morality and the value of some intimate relationships, even
when those views are accompanied by intense feelings of moral certainty.
Therefore, liberals must limit their arguments for statutory and
constitutional legislation about these matters by the specifically political
values that "belong to the most reasonable understanding of the public
political conception and its political values of justice and public reason."
208
The reasonable understanding of marriage by this standard is the
understanding that happens to be the traditional one: between a man and a
woman.
206
Andrew Lister, How to Defend (Same-Sex) Marriage, 37 POLITY 409 (2005).
207
Macedo, supra note 28, at 299.
208
RAWLS, supra note 14, at 236.
61
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TAB 72




LENGTH: 14206 words
1 of 1 DOCUMENT
Copyright (c) 2005 The Alberta Law Review
Alberta Law Review
April, 2005
42 Alberta L. Rev. 1099
Page 1
COMMENT: Courting Leviathan: Limited Government and Social Freedom in Reference Re Same-Sex Marriage
NAME: F.C. DECOSTE*
BIO:
* Professor, Faculty of Law, University of Alberta, Edmonton, Alberta.
SUMMARY:
... In the Same-Sex Referencecase, the Supreme Court of Canada had before it the following four questions:
... Those premises are: (a) that there is a distinction that counts, in law and in life as well, between
what the Court terms civil marriage and religious marriage; (b) that the authority to defme civil marriage
resides exclusively with the state through Parliament; (c) that the state through Parliament may define
civil marriage in any fashion it wishes, since marriage of that state sort has no fixed constitutional or le-
gal meaning; and (d) that premises 'b' and 'c' are proper, because each is a requirement of a proper under-
standing of the place and function of the constitution in the Canadian polity .... In addition to (and even
as part of) securing limited government, the constitution of a liberal state may, as does the American
Constitution, serve as a myth of origin in the sense that it tells people about where their political ar-
rangements came from and how the situation in which they live came about. .. . That this is at logger-
heads with representative government and majoritarian rule appears to be of no moment to this Court or
to any of the many other devotees of Canada's recently minted constitutional tradition ....
HIGHLIGHT: We garb Leviathan with legality not only to legitimise his powers, but to restrain them, and to protect
each of us at our most vulnerable.
-- J.R. Lucas nl
If despotism were lo be established among the democratic nations of our days, ... it would be more extensive and mild;
it would degrade men without tormenting them ... In an age of instruction and equality like our own, sovereigns might
more easily succeed in collecting all political power into their own hands and might interfere more habitually and de-
cidedly with the circle of private interests than any sovereign of antiquity could ever do ... The supreme power then ex-
tends its arm over the whole community ... Such a power does not destroy, but it prevents existence; it does not tyran-
nize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than
a flock of timid and industrious animals, of which the government is the shepherd.
-- Alexis de Tocqueville n2
TEXT:
[*1099] I. INTRODUCTION
In the Same-Sex Reference n3 case, the Supreme Court of Canada had before it the following four questions:
001352
42 Alberta L. Rev. 1099, *
1. Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil
pwposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular
or particulars, and to what extent?
2. If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to per-
sons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? n4 If not, in what
particular or particulars, and to what extent?
3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and
Freedoms protect religious officials from being compelled to perform a marriage between two persons of
the same sex that is contrary to their religious beliefs?
[* 11 00] 4. Is the opposite sex requirement for marriage for civil purposes, as established by the com-
mon law and set out for Quebec in section 5 of the Federal Law-Civil Law Hmmonization Act, No. 1,
consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars
and to what extent? n5
Page 2
The proposed legislation -- which then Justice Minister Martin Cauchon released on 17 July 2003 -- reads as follows:
WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has
a responsibility to support that institution because it strengthens commitment in relationships and repre-
sents the foundation of family life for many Canadians;
WHEREAS, in order to reflect the values of tolerance, respect and equality consistent with the Canadian
Charter of Rights and Freedoms, access to marriage for civil purposes should be extended to couples of
the same sex;
AND WHEREAS everyone has the freedom of conscience and religion under the Canadian Charter of
Rights and Freedoms and officials of religious groups are free to refuse to perform marriages that are not
in accordance with their religious beliefs;
NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of
Commons of Canada, enacts as follows:
1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all
others.
2. Nothing in this Act affects the freedom of officials of religious groups to refuse to per-
form marriages that are not in accordance with their religious beliefs. n6
This proposal was drafted, the questions framed and the entire bundle forwarded to the Court, as the federal executive's
response, in lieu of appeal, to the Ontario Court of Appeal's ukase in Halpern v. Canada (A. G.), n7 which directed that
thereafter and immediately n8 marriage at law must be "reformulated ... as 'the voluntary union for life of two persons
to the exclusion of all others."' n9
[*1101] The Supreme Court heard arguments n10 on the four reference questions on 6-8 October 2004, and de-
livered its en bane opinion, n11 which follows, on 9 December 2004:
001353
42 Alberta L. Rev. 1099, *
With respect to Question I, we conclude that s. I of the Proposed Act is within the exclusive jurisdiction
legislative competence of Parliament, whiles. 2 is not.
With respect to Question 2, we conclude that s. I of the Proposed Act, which defines marriage as the un-
ion of two persons, is consistent with the Canadian Charter of Rights and Freedoms.
With respect to Question 3, we conclude that the guarantee of freedom of religion in the Charter affords
religious officials protection against being compelled by the state to perform marriages between two
persons of the same sex contrary to their religious beliefs.
For reasons to be explained, the Court declines to answer Question 4. nl2
Page 3
Though I shall comment briefly on the significance of the latter in the third part of this comment, my primary con-
cern is the first three, excepting only the Court's opinion as regards s. 2 of the proposed legislation, which opinion ap-
pears to me to be plainly and completely correct. n13 More specifically, it will be my purpose, first, to construct and,
then, to condemn, the reasoning from which arises the Court's disastrous advice on the remainder of the proposed legis-
lation.
II. PROPOSAL AND PREMISES
The pith and substance of the Same-Sex Reference resides, of course, in the Court's advice on the constitutional
propriety-- if not, indeed, the constitutional necessity-- of same-sex marriage (Question 2). That advice it puts in a
fashion at once succinct and grand (and, one should note, with a veritable flourish of certainty and conviction): nl4
"the purpose of s. I of the Proposed Act is to extend the right to civil marriage to same-sex couples," and that is "a pur-
pose which, far from violating the Charter, flows from it." nl5 The remainder of the opinion consists of argumentative
premises that together, and alone, allow the Court to articulate this [*1102] view of the constitutional status and sig-
nificance of same-sex marriage. Those premises are: (a) that there is a distinction that counts, in law and in life as well,
between what the Court terms civil marriage and religious marriage; (b) that the authority to define civil marriage re-
sides exclusively with the state through Parliament; (c) that the state through Parliament may define civil marriage in
any fashion it wishes, since marriage of that state sort has no fixed constitutional or legal meaning; and (d) that premises
'b' and 'c' are proper, because each is a requirement of a proper understanding of the place and function of the constitu-
tion in the Canadian polity. I shall dwell at some length on each, before then proceeding, in the third part of this com-
ment, to the difference all of this makes to the delicate matters, faith and family, that are here the stuff of the Court's
charge.
A. THE DISTINCTION BETWEEN "CIVIL" AND "RELIGIOUS" MARRIAGE
Though the Court hinges the whole of its enterprise on the distinction between civil and religious marriage --
straightaway we are told to note that "s. I of the Proposed Act deals only with civil marriage, not religious marriage"
nl6 --it avoids both definition and defense. nl7 In consequence, neither the sense or senses in which the Court thinks
civil and religious marriage different, nor its view of the origins of the difference, is anywhere on display. Indeed, the
best that the Court can muster in either regard is armchair sociology and tautology, to wit: that times have changed from
those when "marriage and religion were thought to be inseparable"; nl8 that "marriage, from the perspective of the
state, nl9 is a civil institution"; n20 and that "civil marriage" is (presumably in consequence) "a legal institution."
n21 The distinction, then, must be taken simply as an assertion, a claim, that civil and religious marriage are
free-standing institutions, n22 which is to say that they each exist (the former in the political sphere and the latter in
social life) and that they are both separate one from the other and unrelated the one to the other. n23
[*1103] This bald assertion is the critical first step towards the Court's constitutional destination. Firstly, so to
assert is to establish, by mere fiat, the required state jurisdiction over--indeed, its ownership of-- some form of mar-
riage. Secondly, mere and simple statement of the distinction handily elides matters that might otherwise have compli-
cated the jurisdictional claim. Chief among these is the question of the relationship that ought properly to obtain be-
tween the (liberal) state and the institution and practices of marriage. n24 Clearly, had the Court framed that question,
other, wider questions concerning the relationship of the state to social life generally and to religious and family life
specifically, would have appeared. And had they appeared, the Court, I should think, would have been led to compose
an opinion very different, in tone if not in substance, from the opinion it finally rendered. n25 Rather than mature
normative analysis of this sort, the Court appears instead content to play on, and then to cede legal and constitutional
authority to, the common sense that there is a difference between marriage at city hall and marriage at a church (or syn-
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agogue, temple or mosque). Common sense, however, makes for poor political philosophy and practice, and, in any
event, it ought not, ever, to serve as a basis for judicial opinion on the proper reaches of state power. Or, so at least I
shall argue when I again take up the distinction in Part III of this comment.
B. STATE AUTHORITY OVER "CIVIL" MARRIAGE
After birthing "civil" marriage by these meager means, the Court next delivers "civil" marriage to the care of the
state. Its reasoning to this consignment is simple enough: (a) s. 1 of the Proposed Act "pertains to the capacity for mar-
riage"; n26 (b) "s. 91 (26) [of the Constitution Act, 1867] confers on Parliament legislative competence in respect of the
capacity to marry"; n27 (c) consequently, "s. 1 of the Proposed Act ... falls within a subject matter allocated exclu-
sively to Parliament." n28 Yes, simple, it is; but as do all such syllogistic flourishes in law, this one too hides and
shelters an absence that makes mockery of the certainty being tendered.
Over the past several years, the Supreme Court of Canada has made much of purposive, contextual reasoning, es-
pecially so as regards the interpretation of constitutional provisions. Proper interpretation of a constitutional provision,
the Court has declared, begins with an [* 11 04] examination of "the meaning of its words, considered in context and
with a view to the purpose they were intended to serve." n29 Had this imperative been honoured here, n30 the Court
would have sought to establish the purpose served by the relevant provisions of the Constitution Act, 1867, n31 which
is to say, the purpose served by the split authority over marriage erected by s. 91 (26), which confers authority over
"Marriage and Divorce" to Parliament, and s. 92(12), which confers on the povinces authority over "solemnization of
Marriage in the Province." In so doing, the Court would have been driven to examine the legal history of the state's in-
volvement in marriage, not just here in Canada, n32 but more importantly in Britain, whose constitution the Constitu-
tion Act, 1867 declares its model. It would have then confronted the legal and social facts that would be the very stuff of
purposive interpretation, namely, that because the date of the state's first involvement in marriage is available, and be-
cause marriage as a social practice and institution of course existed prior to that date, and therefore independently from
the state, the state's purposes, including the purpose authorized by s. 91(26), might concern matters other than exercis-
ing power over marriage and subjecting it to its will. n33
That the Court offers slick syllogism in the place of serious inquiry does, however, pay dividends, since it makes
both easy and intelligible its next mission, the sounding of the depths of the state's authority over "civil" marriage.
C. THE STATE'S AUTHORITY OVER "CIVIL" MARRIAGE IS LIMITLESS
Several interveners confronted the Court with the following argument: that Parliament's authority over civil mar-
riage under s. 91 (26) excludes the authority to define marriage in any fashion it wishes, either because the word "mar-
riage" as used in s. 91 (26) has a fixed meaning n34 or because a same-sex definition "would trench upon subject mat-
ters clearly allocated to the provincial legislatures" under s. 92(12). n35 It is not important for present purposes to
dwell on the arguments proffered by the interveners in support of these submissions, and not only because they are so
woefully unimaginative. n36 Nor, need we dwell, [*1105] on the Court's response to them. Rather, what is im-
portant so far as the overall structure of the opinion is concerned is the Court's conclusion, namely, that "the meaning of
marriage is not constitutionally fixed." n37
This must be taken to mean that, subject to judicial oversight n38 (and one wonders upon what, having granted the
legislative branch such a plenary authority, the judicial gaze could then fix), n39 the state through Parliament may
make of marriage anything it wishes. Now, this goes well beyond parliamentary supremacy in the Diceyan sense. n40
What the Court is here endorsing, rather, is a positivism writ so large that the sovereign's power is bled of any norma-
tive content or constraint and so permitted, as matter of constitutional principle, to pursue whatever instrumentalism,
however coarse, it wishes, for any reason it may wish.
D. CONSTITUTION AS ENCOMIUM
The Court secures its view of state authority over civil marriage (and subsequently its view of the constitutional
propriety of same-sex marriage) through a political epistemology that, though it has established itself as the idee recue
among constitutional lawyers and judges in Canada, is most peculiar indeed. Under this view of matters, the Canadian
Constitution-- the whole of it: the Constitution Act, 1867 n41 every bit as much as the Charter n42 --has a purpose
deeper and wider than, and different from, the limitation of state power over individuals and social life. In Canada, ra-
ther, the Constitution aims at "structuring the exercise of power by the organs of the state" n43 in order, first, to secure
"the continued relevance and ... legitimacy" of the state's "constituting document" n44 and, then, to "promote [consti-
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tutiona1] rights and values" so as to "enrich ... our society as a whole." n45 To achieve these ends, judicial interpreta-
tion of constitutional provisions must be "large and liberal, or progressive," n46 by which is meant, at least, that provi-
sions must be rendered so as to "accommodate and address [the judicial branch's view of] the realities of modem life. "
n47
[* 11 06] This view, which, borrowing from Lord Sankey's speech in Edwards v. Canada (A. G.), n48 devotees
term the "'living tree' principle," n49 informs an "ambitious enterprise" n50 that serves to expand state power and
aims to bond those subject to its rule to its values in the place of their own. That this turns liberal political and legal
philosophy and practice upside down and sideways should be obvious, but the reasons bear reiteration.
There are two. So far as the law generally is concerned, to think that its proper purpose is somehow about moving
forward -- about making better and more perfect and whole and complete the life-world -- is to commit, in equal and
fateful measure, to political perfectionism n51 and to unlimited government. n52 Both of those precepts, of course,
violate commitments constitutive of the liberal state, the commitment, on the one hand, to leave alone those subject to
its rule provided only they cause no harm, and the commitment, on the other hand, that follows ineluctably from this,
namely, the commitment to limited and moderate government. I shall pursue these matters at greater length in the next
section of this comment. It is the second reason, which concerns the place and status of a constitution in the liberal state,
that is of more immediate concern.
In addition to (and even as part of) securing limited government, the constitution of a liberal state may, as does the
American Constitution, n53 serve as a myth of origin in the sense that it tells people about where their political ar-
rangements came from and how the situation in which they live came about. What a liberal constitution may not do is
create a caesura that separates a people from its past or that proposes a future for them that betrays limited government.
Under the custodianship of Canada's judicial branch -- and, increasingly, with the connivance of an ideologically com-
mitted federal executive n54 and a weakened Parliament (and always, I should add, with endless applause from the
legal academy)-- the Constitution [*1107] of Canada has, since the advent of the Charter in 1982, been interpreted
so as to commit both these cardinal sins.
Authoritarian states are revolutionary states of a specific sort. They defend and articulate their legitimacy in terms
of their overthrowing of forms of life, political and private, which, according to their revolutionary calculus and con-
sciousness, have in the past subjugated the "people." Revolution of this variety makes good its promise of a new and
renewed life of (generally social) justice by erasing the ancien regime and cleansing the people of any remaining affec-
tion for it. As their legitimacy resides only and always in this, authoritarian states are activist states, bent perpetually to
the task of weeding the garden of life of the past.
Because they seek legitimacy in the consent of the governed, liberal states, even those born of revolution, take a
very different attitude to the past. For a start, they take seriously the real past of the people and do not, in consequence,
seek its erasure, even when, under exceptional circumstances, they may for good reason judge parts of that past want-
ing. n55 Nor, therefore, do they seek to reconstruct the received past in service to any dream that conjures up a
life-world begun anew from scratch. Liberal states, rather, honour the people's past by seeking their consent in terms
that acknowledge and proceed from that past. For just this reason, in liberal states, the law is viewed as belonging to the
people: it embodies their whole way of life, and it originates not in the will of the sovereign, in any of its three guises,
but in the traditions and practices of the people whose law it is.
States resign their liberal credentials when they succumb to the temptation to reject the people's past in service to
delivering them to a better, because cleansed, future. With rare exception, n56 the vast constitutional jurisprudence
excreted by the judicial branch since 1982, has revealed a Canadian state quick to reject the past in just such a service.
This is very much on display in the opinion here at issue. When it is argued that the people's past has proper normative
and legal bite on the present, the Court declares that past now unacceptable n57 and opines that the present must be
managed, and the future defmed, in terms of its view of the present circumstances of the people. n58 When it is sub-
mitted that "marriage is a pre-legal [*1108] institution and thus cannot be fundamentally modified by law," n59 the
Court once again musters poor old Lord Sankey n60 to construct, irony entirely absent and certainty fairly oozing, this
reason for rejecting in its entirety the people's past: "Several centuries ago it would have been understood that marriage
should be available only to opposite-sex couples. The recognition of same-sex marriage in several Canadian jurisdic-
tions as well as two European countries belies the assertion that the same is true today." n61 When, fmally, it is sub-
mitted that marriage has a natural meaning-- which is to say, the meaning conferred upon it by the traditions and prac-
tices of the past-- the Court declares that it falls to the "proponents" of this view to "identify an objective core mean-
ing"; n62 that different proponents proffered "competing opinions on what the natural limits of marriage may be";
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n63 and that, because Lord Sankey-- yes, His Lordship yet again-- "did not impose an obligation to determine, in the
abstract and absolutely, the core meaning of constitutional terms ... it is not for the Court to determine, in the abstract,
what the natural limits of marriage must be." n64 So, with and for reasons such as these, does this Court trivialize,
reject and erase the people's past. With them as well, it abandons, not only those who would cleave to this past, but also
its core and abiding obligation "to preserve the community of law, to discover and articulate the conditions under which
political fraternity is possible." n65 No such fraternity is possible, of course, where the discovery articulated is that the
views of some -- that, in this case, they appear to be the many is no matter n66 -- are so beyond the constitutional pale
that they represent a now dead, because unacceptable, history.
The subtext of this abandonment of the past, the grammar that lends it whatever cogency it may have, is the Court's
view of the positive contribution of the Constitution. However, the sketch that I have so far offered of this understand-
ing n67 is not enough, since the devil of unlimited government very much resides in the details to which we must now
briefly attend.
The "living tree" notion of the place and status of the Constitution is saved from demagoguery just and only be-
cause the values that it aims to articulate, legitimize, promote and spread, all remember for the continuing enrichment of
society, are state values. Thus, does the Canadian Constitution become an encomium to the state, and the judicial
branch its [*1109] solipsistic choirmaster. Thus too does the state, through its Constitution, commit itself to are-
demptive politics that, by means and medium both, makes jest of limited government.
Redemptive politics is a politics of conviction. The redemptive state is a state convinced that its proper purpose is
to improve its subjects by imprinting on them, on their projects and character, the values that the state has made its own
and declared superior. Such a state is not merely a custodian and guardian of the people's proper values, though it is
clearly both. The redemptive state, rather, conceives of itself as the personification of those values and, with that, of the
lives of the governed properly lived. Which is to say, state and people are, in theory, one, and so do they in fact become
to the extent that the state succeeds in disarming the people of values that contradict or diminish its values. But this
transformation, of the state into a person and persons into expressions of the state, comes at the cost, in equal measure,
of moral arrogance by the state and of the moral disablement of the people. "To make [of the state] a unity and a person
and then to attribute to it moral existence and moral rights" requires an arrogant analogical leap-- that the state has this
existence and those rights because it is like a person -- that cheapens and distorts real existence, not least because it
"creates a world" in which politics is no longer, in the fashion required by liberal political morality, "discontinuous with
everyday life." n68
This morally laden and motivated Leviathan has as its means, everywhere it is constructed, a reconceived citizen-
ship and, in liberal democratic states such as ours, it is always legitimated through the soothing medium of human
rights. Consistent with its view of the constitution as an encomium to its values, the redemptive state considers citizen-
ship, not as a burdensome cost ofliberty, but as a celebration of, and, in its proper conduct, as a commitment to, those
values. Citizens are for it the means of its moral mission, and their commitment is the test of its moral accomplishment.
That those values are often, as in Canada now, conflated with human rights and human dignity, makes declining the
state's offer of neo-citizenship a tricky and sticky affair. Though those human rights, and the dignity they are said to
protect, are never conclusively defined nor ever fmally disclosed, n69 by declaring its values to be expressive of them,
the neo-liberal state, ours especially included, repositions itself in fundamentally important ways with respect to its sub-
jects. Whereas under the liberal view, a constitution has as its proper object the constraint of executive and legislative
power, takes as its object the validity oflegal rules, and has as its focus the relationship between the state and its sub-
jects as citizens (and not as persons), the neo-constitution of human rights and dignity produces a very different norma-
tive typography. If the constitution is about human rights, then the concern of constitutional discourse and decision is
the settlement of state norms concerning those rights and, with that, the consolidation of state power with respect to
them; its focus is the [*111 0] relationship, as regards those norms, between the state and its subjects, not as citizens,
but as human persons; and the entire enterprise is finally informed, not by the constrain of state power, but by those very
state norms, the settlement of which is the constitution's mission. n70
In this morally engorged and socially imperialist state, law becomes the bride and pride of power and ceases to be
"the bridle of power" that, since Bracton, our tradition has named it to be. n71 No longer does it shield the people from
the state; the abnormal n72 law of the neo-liberal, redemptive state, rather, renders them, through its insistent demands
on them as persons, expressions of the state's power.
* * *
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These four premises, along with the concepts and conceptions on which they depend, are, then, the powder that ig-
nites the Court's constitutional mission and compels it to its constitutional destination. At first blush, that destination
might appear a curious one. As mentioned earlier, the Court opines that same-sex marriage is not merely consistent with
the Charter, but that it "flows from it." n73 The curiosity resides in the notion, on display here, that the constitution of
a liberal state is properly conceived as a foundry of values to which the state is bound and not merely as a bulwark by
which it is bound. In the liberal view, of course, the constitution plays no such positive purpose: it is no more and no
less than an institutional strategy to limit state power. Under the Court's view, the Constitution serves the very different
purpose of instructing the state on how properly to exercise its power. Viewed from that vantage, the Court's opinion
must, I think, be read as declaring that same-sex marriage is a constitutional necessity.
Yet, given these premises, this should not surprise. If the state is indeed the personification of communal values and
if it is therefore pledged to seed those values amongst its subjects, then it makes abundant sense to articulate, in ever
finer detail, which values it must personify and promote. That this is at loggerheads with representative government and
majoritarian rule appears to be of no moment to this Court or to any of the many other devotees of Canada's recently
minted constitutional tradition. n74
III. THE PROPER PLACE OF THE POLITICAL
As noted previously, the Court at one point opines that "marriage,.fiom the perspective of the state, is a civil insti-
tution." n75 This assertion conceals two premises: namely, that it is proper for the state to take a view on social institu-
tions like marriage, and that the view taken [*1111] by it here is the proper one. The real and revolutionary im-
portance of the Court's opinion in the Same-Sex Reference resides, in my view, in its answer to the executive's views on
these matters. I shall proceed as follows: first, I shall take the first premise to concern the relationship that ought
properly to obtain between the liberal state and the institutions and traditions of private life and examine the executive's
and the Court's views as responses to that concern; second, I shall examine the Court's views of how that relationship
works out with respect to those two fundaments of private life, family and faith. In all of this, it will be my purpose to
convince, so far as space will permit, that, by establishing the primacy of the political over the social, the same-sex mar-
riage initiative has set the Canadian state on a path that threatens social freedom generally and the freedoms of family
and religious life particularly.
A. STATE AND CIVIL SOCIETY n76
Liberal politics expresses, and proceeds from, two core commitments, namely: that the state exists for the sake of
persons, for their good and not its own (the priority of persons); and that, since the good of persons resides in their au-
thoring their own lives through their freely chosen interactions with other persons, social life is prior, and superior, to
politics (the primacy of the social). From these two commitments arise the moral sense and the institutional architecture
of the liberal state. So far as the first is concerned, the state is, on the liberal view, a "negative virtue" whose character
and legitimacy resides in "what it prevents rather than what it engenders." n77 This conception of political goodness
alone accounts for the institutional forms so familiar and so intertwined in liberal states, limited government and social
freedom. A limited state, a liberal state, is one that acknowledges its devolution from, and containment by, the social
and it is, therefore, one for which the social serves as a moral-ethical power greater and higher than its own. Such a state
erects barriers to its own power in order to honour the primacy of the social. But its governance does not necessarily end
there. The liberal state may also act to preserve and to protect the personal sovereignty of those subject to its rule by
supporting the life-forms through which that sovereignty is exercised and accomplished. In this fashion does it deliver
its primary good, social freedom, which is but the positive freedom of a free people to construct their lives and affairs
by means freely chosen by each of them.
The sphere of social freedom, which the state in this way exists to preserve, is known in liberal political and legal
philosophy as civil society. n78 But nothing turns on the name. What [*1112] is important is the message, at once
moral and institutional, that that name is meant to send: first, that there exists a life-world beyond law and politics for
the sake of which the state exists and from which it draws its legitimacy; and, second, that the state acts for the sake of
that life-world and, therefore, with authority, only when its actions neither diminish nor dominate the life-world. What a
liberal state may not do, therefore, is manage the life-world by imposing values, whatever the reason and whatever their
source, upon it. What a liberal state must do, if it does anything at all, is recognize and acknowledge, and in that fash-
ion, honour and preserve, the life-world. n79
That, in the Same-Sex Reference, the federal executive and the Court answered the state-society question in a tone
and grammar very different from this, should, I hope, be clear. Rather than parsing the argument of the second part of
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this comment, I wish instead to consider in finer detail the method the state here deployed to claim sovereignty over
marriage. From that exploration, one may learn how neo-liberal states like ours seek to maintain legitimacy despite their
transgression of fundamental precepts of liberal governance. One might also learn something of the consequences of
their so doing.
What such states do, and what the Canadian state has done here, is to pretend that their perfectionist programmes
and policies conform to, and sound in, the commandments of liberal governance. In the Same-Sex Reference, there are
two such pretenses: first, that the state remains constrained by a higher moral-ethical power; and, second, that legal his-
tory secures the state's view that marriage exists in two forms, a political form (civil marriage) and a social form (reli-
gious marriage). The first is pretense because it identifies that higher power, not with the life-world beyond law and
politics, but with the state's own perfectionist values as they reside in the state's own redemptive constitution. The se-
cond, on which I will dwell, is pretense because legal history, honestly and seriously considered, supports no such dis-
tinction between civil and religious marriage.
Let me make three things painfully clear: first, there can be no marriage in the required political sense, just because
liberal states cannot claim ownership over social institutions (rather-- and on the pain otherwise of the loss of their le-
gitimacy-- theirs is either to ignore or else to recognize and to preserve those institutions); second, the civiVreligious
marriage distinction is fiction, not, note, a legal fiction, but a political fiction, plain, pure and simple; and, third, the ju-
dicial branch has, over the last several years, spun that fiction whole-cloth through its wholesale misinterpretation and
misrepresentation of legal and social history.
So far as the latter is concerned, the facts are these: (a) prior to the thirteenth century, when the Church finally
managed to take control of it, marriage was an entirely social practice; (b) marriage only became a sacrament in 1439;
and (c) the Catholic Church only began requiring the attendance of a priest for valid marriage in 1563, after theRefor-
mation. n80
[*1113] The state came to marriage even later than did the Church. Indeed, it was not until1753, with the pas-
sage of Lord Hardwicke's Marriage Act, that the British state became a significant player in the joining together of men
and women as husbands and wives. n81 However, the manufacture of the distinction is not a consequence alone of a
failure by our judges to acknowledge and address the history of the institution on which they had set their constitutional
sights. Alas, they had also to manhandle, in fashion approaching deceit, the state's relationship to marriage, over the
wealth of our tradition and since 1753 particularly.
The distinction between civil and religious marriage can serve as permission to make marriage pass
(neo-)constitutional muster, only if civil marriage might somehow be construed as a positive act of the state. But this is
no easy matter. None of the classics of our legal tradition-- not Bracton, n82 Fortescue, n83 Coke n84 or Black-
stone n85 --at all helps in construing marriage as a construction of the state: though each of them deals with marriage
n86 none of them defines marriage nor reports any court as having done so. Nor does legislative history assist. Until
quite recently, n87 the legislative branch found it unnecessary to define marriage; rather, whenever the state spoke of
marriage, it apparently proceeded on the assumption that marriage had a social and legal meaning so plain that taxing it
with definition was besides any point.
None of this, however, has served to impede our committed judiciary. On the bare basis of an 1866 House of Lords
decision, it has, rather, sought to convince that civil marriage is [* 1114] indeed a state-created entity that might, un-
like religious marriage, properly be made to dance to the state's constitutional tune. Hyde v. Hyde and Woodmansee
n88 concerned whether a party to a polygamous marriage contracted in a foreign jurisdiction (there Utah) was entitled
to matrimonial reliefer to a declaration as to the validity of the marriage in the English courts under the Divorce Act then
governing those matters in England. n89 The Court in Hyde answered negatively in both regards, and those answers
remained the rule in Hyde until abolished by statute. En passant, n90 the Court delivered itself of the following opin-
ion on the nature of marriage:
What, then, is the nature of this institution as understood in Christendom? Its incidents vary in different
countries; but what are its essential elements and invariable features? If it be of common acceptance and
existence, it must needs (however varied in different countries in its minor incidents) have some pervad-
ing identity and universal basis. I conceive that marriage, as understood in Christendom, may for this
purpose be defmed as the voluntary union for life of one man and one woman, to the exclusion of all
others. n91
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According to our judges -- including, apparently, those sitting in the Same-Sex Reference n92 -- these words prove
that marriage, in its civil form, is a positive creation of the state. Of course, the definition in Hyde, on any responsible
reading, proves no such thing. Just the contrary: what the Court was, by its own account, about in Hyde was not pre-
scription, but recognition. That is, the Court was undertaking, not to legislate what constitutes marriage, but rather to
determine what in societies such as ours is recognized as constituting the form oflife, the "institution," n93 we know
as marriage. That the Court takes pains to distinguish the institution itself from "the variety of legal incidents" that "the
laws ... throw about" the institution makes plain, I should think, that it was not conflating marriage as a cultural practice
with the law of marriage, and, still less, claiming state sovereignty over marriage. n94 So viewed, the rule in Hyde, if
there be a rule at all, is that marriage is a form of life to which the state in certain measure responds, but which it does
not itself create.
There is a distinction that is properly at play here, but that distinction does not reside in the faux distinction, con-
cocted by the judicial branch, between civil and religious marriage. The distinction that counts is, rather, the distinction
between state and society. The Supreme Court of Canada, of course, hides behind its investment in the civil-religious
distinction, in order not once to acknowledge that this is so. Yet, by the same means, it does nonetheless provide an
answer to the law and society question, at least so far as marriage is concerned. That answer is this: that, as regards this
form of life, the political has primacy over the social. Nor is this answer modestly delivered: because marriage has no
fixed political or legal meaning, it stands now entirely as the handmaiden of the state, at beck and call to the state's al-
ways revisable interests and values. Whether this commitment to the primordiality of political causation can be made, as
the Court appears to think, without cost to the remainder [* 1115] of social life-- and to family and religious life par-
ticularly-- is the matter to which we must now tum. That this now becomes a necessary concern discloses, without
more, the significance of the departure undertaken by the Supreme Court of Canada in the Same-Sex Reference.
B. FAITH AND FAMILY: PLACE AND CONSEQUENCES
Faith and family-- the practices of transcendence and of the transmission of cultural attachments -- stand at the
very heart of autonomous social life and, because they do, they are together the primary elements of that moral-ethical
order which alone can tame Leviathan and render it the modest and moderate enterprise that liberal political morality
commands it to be. Before proceeding to the effects that the present claim of state supremacy over marriage might have
on each of these, it will be prudent first to explore, however briefly, the contributions of faith and family to limited gov-
ernment.
1. PLACE
As noted earlier, n95 in rejecting what it (incorrectly) took to be the common law legislation regarding marriage
in Hyde, the Court took exception to the Hyde Court's reference to Christendom. As put by the Court: "The reference to
'Christendom' is telling. Hyde spoke to a society of shared social values where marriage and religion were thought to be
inseparable. This is no longer the case Canada is a pluralistic society." n96 Now, this is of present interest, not be-
cause, assuming the Court meant to declare the Hyde Court sectarian, it is clearly wrong. n97 The interest resides, ra-
ther, in the passage's display of a woeful historical illiteracy, and in its disclosure of a fundamental misapprehension of
the place of religious life in the liberal project.
So far as the former is concerned, it is remarkable indeed that our highest Court appears entirely unaware of the
importance, historically, of Judeo-Christian culture to the development of the Euro-American legal tradition. As space
prevents my parsing the relevant literature, n98 two comments will have to suffice. First, it is everywhere (else) ac-
cepted that "as a matter of historical fact the legal systems that are heirs to the Western legal tradition have been rooted
in certain beliefs or postulates ... such as the structural integrity of law its [* 1116] continuity, its religious roots, its
transcendent qualities." n99 Second, it is everywhere (else) understood that certain central commitments of that tradi-
tion-- and here especially included are moral equality and constitutional governance n100 --are unintelligible, both as
historical accomplishments and as normative ends, without the sustenance ofEuro-American religious culture.
Not only is religion central historically in these ways, the project of modest governance is impossible to conceive
without the sorts of persons marked by the self-conception that religion makes possible. Human beings are transcendent
needy beings every bit as much as they are resource dependent beings; n101 and the institutions of private religious
life are a response to the former every bit as much as the institutions of private property are a response to the latter. Nor
only that: modest government is no more possible in the absence of private religious life than it is possible in the ab-
sence of private property. This is so, in both regards, because modest governance, limited government, requires subjects
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who conceive of themselves as independent from the state and who seek their spiritual and material ends, not through
and in the state, but by means of the institutions, the patrimony of private life, which exist beyond the state.
All of this holds, historically and normatively, for family as well. The Western ideal of the family arises, simulta-
neously, from the acknowledgement of, and from an attempt to overcome, the frailty of human knowledge and judg-
ment and the ambiguous worth of human creations. Our faith in the family is, for these reasons, at root a rejection of the
artifice and arrogance of politics. nl02 At the same time, however, the practices of family life have been thought cru-
cial to proper politics because those practices alone are thought capable of forming persons seized of the character and
disposition necessary for the flourishing of liberal political culture. nl 03
Faith and family, then, are central to the project of liberal governance. They are the sites most subversive of the
tendency of states to imperial expansion and despotic consolidation. They are this both because they are, by nature and
stature, the practices most removed from the spirit of politics and because each is, for that very reason, a foundry in
which persons of the sort required for limited government are alone to be formed.
[* 1117] 2. CONSEQUENCES
The single most important condition of human freedom is the diffusion of power in a society. In societies served by
liberal states, power is diffused in two fashions. So far as the state itself is concerned, it is constructed in a fashion so
that power is spread between its own branches. So far as society is concerned, the life-world is preserved as the realm of
freedom by disenabling politics there and by according special, and indeed sacred, sovereignty to the practices of faith
and family. I want to suggest that the Canadian state's same-sex marriage initiative changes these, the structures of pub-
lic and private life of free societies.
Committed states-- those that believe in a socio-political ideal rather than in always-transient policy ideals nl04
-- are ideological states, and ideological states are morally unified and structurally consolidated states. I have already
characterized the Canadian state as a state unified under the banner of an expansionary, social constitution. nl 05 Brief
attention must now be paid to how a state of that sort degrades and erodes the separation of powers.
Montesquieu claimed that "political liberty ... is present only when power is not abused," and that for power not to
be abused, "power must check power by the arrangement of things." nl06 "In order," he thought, "to form a moderate
government, one must combine powers, regulate them, temper them, make them act; one must give one power a ballast,
so to speak, to put it in a position to resist the other." nl07 Thus was he led to distinguish between the legislative, ex-
ecutive and judicial powers and to propose that "liberty is formed by a certain distribution of the three powers." nl08
"When legislative power is united with executive power in a single person or in a single body ofthe magistracy, there is
no liberty ... Nor is there liberty if the power of judging is not separate from legislative power and from executive pow-
er." nl09 This must be so, he thought, because power will inevitably be abused, unless one power is "chained to the
other by their reciprocal faculty of vetoing" nllO or unless they are "counter-balanced." nlll
According, then, to the classic agonistic view of the separation of powers, the proper relationship between the pow-
ers of a state devoted to, and fit for, liberty is one of struggle and resistance. Each of the powers, that is, should be a
centre of resistance, one against the other, to the proclivity of the state as a whole to serve its own good rather than the
good of the liberty of its subjects. The Canadian state, as delivered in the Same-Sex Reference, is no such state. That
state, rather, speaks with a unified constitutional voice, in service to its settlement of constitutional values, and by
means of its assessment of "the realities of modem [* 1118] life." nll2 The branches of this state are, each of them
separately and all of them together, bound to the task of "structuring the exercise of [their] power" nl13 so as to pro-
mote the state's values and, in that way, to enrich society. nll4 Such a state, of course, makes jest of the separation of
powers and of the liberty that state structure aims to honour and preserve.
The structure of the life-world, faith and family especially, fares no better than does the structure of the public
realm under the new day of state governance fully announced and fmally accomplished in the Same-Sex Reference. My
argument in this regard, I should note, is not based on the Court's uncertainty as regards the ambit of religious liberty, as
threatening to some as that might (properly) nll5 appear. nll6 Nor does it arise from the Court's insouciant carriage
of objections arising from the maintenance of the traditions of marriage and family life nll7 or concerning the effects
same-sex marriage may have on marriage. nll8 My argument, rather, concerns the socio-legal position in which faith
and family are now placed.
Two matters provide entry. When it was argued that "the Proposed Act will have the effect of imposing a dominant
social ethos," nll9 the Court would have none of it and summarily dismissed the concern. nl20 Yet, the Court also
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announced as a value of our constitutional jurisprudence that the Charter never be "trivialized." n 121 It is in the con-
fluence of these two -- the dismissal of concerns over the impact of state on social life, on the one hand, and the cloying
solicitude about the status of state values, on the other-- that my argument emerges. Simply put, the argument is this:
that the Court has elevated politics over social life so as, first, to demand the conversion of the practitioners of faith and
marriage to state values and, second, to weaken their fidelity to the life-world.
The elevation arises from the Court's very perspective. For it, social life exists to be located, enclosed and judged
by the state's constitutional values. The practices of social life are, on this view, epiphenomenonal: rather than being
seen as prior and superior to state, they are instead reduced to something upon which the state gazes as rights and upon
which it may act as of right in service to constitutional equality. So rendered, it is easy, as for this Court, [*1119] to
proceed on the understanding, first, that the state, properly, has a view of social life and, second, that social life has no
view of the state, n122 not least any that ought to be heard. n123
This message -- state declared and constitutionally enforced-- asks much of its recipients. Minimally, it demands
that the state's subjects, as persons, acknowledge the final and binding authority of the state over the life-world. To the
extent that it succeeds in that demand, it will also effect a conversion among its subjects from the values of private life
to public values, at least to the extent that the former, in the state's assessment, conflict with the latter. This, in turn,
works the moral weakness mentioned. Fidelity to one's world becomes contingent because fidelity is always subject to
state supervision and denunciation.
As the unified state makes jest of limited government, the elevation of the state over social life in these ways makes
jest of social freedom. For the test of social freedom is its defense of freedom from and against the claims of law: it does
not exist where its dominion is whatever remains, for the time being, beyond the law's empire. Freedom is not concoct-
ed from, nor can it be preserved as, crumbs of tolerance from Caesar's table.
C. THE COURT'S CAVEAT
As noted previously, the Court declined to answer the question, added by the Martin government, concerning the
constitutional acceptability of the opposite-sex definition of marriage. My concern here is not the arguments that the
Court offers in support of its decision to decline (which, in my view, are, each and all, bootstrapping of a very unhappy
sort). My object rather is to examine the difference, if any, its decision on this matter makes to what I am claiming is the
overall structure and import of its opinion.
The Court's decision has been widely hailed as an exhibition of judicial wisdom and statecraft. n124 I think these
views are profoundly mistaken. Rather than statecraft and, even less, an acknowledgement of Parliamentary authority,
the Court's decision to decline to answer to this matter signals its determination to elide delivering the message that its
own jurisprudence and the conduct of the lower courts in same-sex marriage cases required of it. On the one hand, it
sought, as we have seen with much certainty and conviction, to preserve the judgment of the lower courts as regards the
constitutional propriety of same-sex marriage. On the other hand, by declining here, it sought to distance itself from the
premise on which those courts made their constitutional determinations; namely, that the opposite-sex definition of
marriage is constitutionally diseased because incurably discriminatory. Thus does the Supreme Court of Canada deliver
instead the constitutional alchemy here on display: same-sex marriage is a constitutional commandment, but that com-
mandment does not require the denunciation of the opposite-sex definition. Of course, as the lower courts rightly
[*1120] acknowledged, it does. Sloughing that necessity off to Parliament or worse still to the now diminished com-
munities of faith, to await another day, is the very opposite of candour, wisdom and statecraft. It is rather sleight of hand
and prudence of a self-directed and self-serving sort.
IV. CONCLUSION
A decent society is one in which institutions do not humiliate. n125 A decent state is one whose institutions do not
humiliate their subjects as persons. The Canadian state, in my view, is fast becoming an indecent state in just that sense,
and I shall conclude this already too long comment with a brief exploration of the causes and consequences of that most
unhappy political circumstance.
The immediate cause is, of course, constitutional paternalism. The Canadian state -- unprepared as it was, by dint of
its parliamentary nature and history, to handle the republicanism abruptly introduced into it by the Charter in 1982 --
has seen its Constitution become, in very short order, not only a means for the expansion of state power over private
life, but also the end towards which both the state and society are properly to strive. Need I say, neither this de facto
expansion nor this normative elevation was undertaken for the purpose of, or by way of, an assault on the institutions,
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traditions and practices of civil society. Just the contrary: as paternalism is wont to do, the motive has been benevolence
and the means the gradual pollution and, with that, the inexorable assimilation, of one set of values by another. Yet,
paternalism is not, for either reason, saved of the sin of humiliation. This is especially so when the values causing the
pollution and assimilation are state articulated and sanctioned. For in that case, the lowering of self-respect and
self-reliance of persons in their lives and affairs is not a matter of persuasion, but of coercion.
This novel historical and constitutional narrative of course carries many costs, but two in my view are especially
important. The ftrst of these is the sapping away of political conscience. For those seized of high-minded constitutional
conviction -- and this is everywhere on display in the course of the state's carriage of the same-sex marriage matter --
nothing remains of a political conscience that restrains because it acknowledges that some things are impossible and that
some aspirations cannot be satisfied. n126 Let loose from tradition and traditional moral viewpoints, political con-
science instead becomes permission and, as here, actions and policies inconceivable and incomprehensible barely a
generation ago become not just imaginable, but, depending on whichever ideology has replaced tradition, necessary.
The second cost is a cost to qualities and experience of social life. The imperialism of the neo-constitution blurs
borders, makes porous barriers and renders possible the impossible. In so doing, it scrapes away the bumpy, chaotic
surfaces of life lived in freedom beyond the [* 1121] state. In its place, the state constructs a life ordered by decree, a
life no longer fragmented by difference but flattened by the iron of coercive norms. n127
Canada, of course, is alone in none of this. Due perhaps to its political circumstances, past and present, it has how-
ever distinguished itself, as it has once again in the Same-Sex Reference, as an exceptionally devoted, if not as a very
adept, neo-liberal state.
POSTSCRIPT
We're talking about changing one of the central and longstanding institutions of society.
--Federal Department of Justice (1 February 2005) n128
As he tabled the landmark Civil Marriage Act ... , he talked with messianic zeal about the "march towards equality
in this country" and "proceeding with a transformative constitutional process."
--John Ivison n129
On 1 February 2005, the federal executive tabled in the House of Commons its legislative response to the Supreme
Court of Canada's advice in the Same-Sex Reference. It tabled the Civil Marriage Act-- Bill C-38 n130 --it says, in
order "to extend legal capacity to marry for civil purposes to same-sex couples while respecting religious freedom."
n131 And it had to do this, it declares, because it "has responsibility to support [the] institution [of marriage]" because
"that institution ... strengthens commitment in relationships and represents the foundation of family life for many Cana-
dians." n132 What it is in fact doing, of course, is continuing (with renewed vigour and expanded boldness, yes, but
continuing nonetheless) the task of spreading the good news of the constitutional values of which it sees itself as
[* 1122] master and commander. Its methodology is what one would expect. Social life will be further occupied by the
state; and, through the state's coercive power, social relationships will be, not just re-defined at law, but changed root
and branch by law. I wish by way of ftnal comment briefly to disclose how this task is undertaken in this Bill as regards
the family and at what cost.
The majority of the "consequential amendments" contained in sections 5 through 15 of the Bill aim, in the statutes
at which the sections are directed, to replace the term "natural parent" with the term "legal parent" n133 and the term
"blood relationship" with the term "any legal parent-child relationship." n134 Their aim, that is, is to de-naturalize the
family by rendering familial relationships, in their entirety, expressions oflaw. But relationships of that sort-- bled as
they are of the stuff of social tradition and experience -- are no longer family relationships at all. They are rather policy
relationships, defined and imposed by the state.
Ways of life disintegrate for any number of reasons. But two phenomena, in my view, always attend their decline--
alienation and forgetfulness. When practitioners of a way of life become detached from their labours, they become only
partially engaged in, and tend no longer to experience themselves as fully revealed through that way oflife. Forgetful-
ness is no less a corrosive force. When practitioners of a way of life lose a sense of historical depth and connection,
their sense of the present, as a moment in moral time, tends to fail as well. Tradition militates against both of these
forces. It bestows on practitioners a sense of being located in a continuing way of being, one that existed before they
came to it and one that will continue after they depart it; and it arms them with a reason transcendent to themselves and,
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with that, with the will, to resist the forces that, in modern life especially, would lure them into detachment and forget-
fulness.
It occurs to me that the initiatives being carried forward in this Bill are an assault on the traditions of family life and
that they risk the disintegration of that way of life, at least to the extent that they lure fathers and mothers, and husbands
and wives, into detachment from and forgetfulness about the moral point of family life.
Legal Topics:
For related research and practice materials, see the following legal topics:
Family LawMarriageNature ofMarriageFamily LawMarriageValidityPlural MarriagesFamily
LawMarriage ValiditySame-Sex Marriages
FOOTNOTES:
n1 J.R. Lucas, Responsibility (Oxford: Clarendon Press, 1993) at 118.
n2 Alexis de Tocqueville, Democracy in America, vol. 2 (New York: Vintage Classics, 1990) at 317, 319.
n3 Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698 [Same-Sex Reference].
n4 Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[Charter].
n5 Same-Sex Reference, supra note 3 at paras. 3, 4, citing Order in Council, P.C. 2003-1055 (16 July 2003)
and Amendment to Order in Council 2003-1055, P.C. 2004-0028 (26 January 2004) (both made under the Su-
preme Court Act, R.S.C. 1985, c. S-26), online: Orders in Council <www.pco-bcp.gc.ca/oic-ddc>. The amend-
ment, which added the fourth question, was at the initiative of the minority Martin government. The first three
questions are those of the former Chretien government.
n6 Department of Justice Canada, Press Release, "Reference to the Supreme Court of Canada" (17 July
2003), online: Department of Justice Canada <http://canada.justice.gc.ca/en/news/nr/2003/doc_30946.html>.
n7 (2003), 65 O.R. (3d) 161 [Halpern].
n8 In this, the Ontario Court of Appeal distinguished itself from the British Columbia Court of Appeal in
EGALE Canada v. Canada (A. G.). (2003), 225 D.L.R. (4th) 472 [EGALE] and from the Quebec Superior Court
in Hendricks v. Quebec (P. G.), [2002] R.J.Q. 2506, both of which courts -- though each reached the same result,
and by the same means, as did the Ontario Court, regarding what constitutes a constitutionally proper definition
of marriage -- provided Parliament with a period of grace in which to enact proper legislation. Following
Halpern, a three-member panel of the B.C. Court of Appeal set aside the grace period, in order to allow
same-sex couples to marry immediately. As well, during the period following Halpern and before the release of
the Supreme Court's opinion in the Same-Sex Reference, courts in Saskatchewan, Manitoba, Nova Scotia, Yukon
and Newfoundland and Labrador joined the Courts in Halpern and EGALE in declaring discriminatory, under s.
15(1) ofthe Charter, the opposite-sex definition of marriage and in putting in its place the Halpern definition.
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n9 Halpern, supra note 7 at para. 148. For a summary of, and comment on, the Ontario Court's reasoning to
this result, see, F.C. DeCoste, "The Halpern Transformation: Same-Sex Marriage, Civil Society, and The Limits
of Liberal Law" (2003) 41 Alta. L. Rev. 619 ["Transformation"].
n 10 These arguments were tendered by counsel (all counted, 31 of them) representing both the Attorney
General of Canada and a host of interveners (19 in all, several of which were multi-party).
nil "Opinion" in a very precise sense, since reference cases are productive of advice and not of judgments
that bind, alter or otherwise affect the law.
n12 Same-Sex Reference, supra note 3 at paras. 4-7.
n13 On this, the Court reasoned as follows because "section 2 of the Proposed Act relates to those who may
(or must) perform marriages," because that matter "necessarily relates to the 'solemnization of marriage,"' be-
cause authority over that "matter is ... allocated to the provinces under s. 92(12) of the Constitution Act, 1867," s.
2 of the proposed legislation "does not fall within the exclusive legislative competences of Parliament" under its
s. 92(26) authority with respect to "Marriage and Divorce." See Same-Sex Reference, ibid. at paras. 36-39 [em-
phasis in original]; and Constitution Act, 1867 (U.K.), 30 & 31 Viet., c. 3, reprinted in R.S.C 1985, App. II, No.
5.
n14 Same-Sex Reference, ibid. at para. 43 [emphasis added]: Turning to the substance of the provision itself,
we note that s. 1 embodies the government's policy stance in relation to the s. 15(1) equality concerns of
same-sex couples. This, combined with the circumstances giving rise to the Proposed Act and the preamble
thereto, points unequivocally to a purpose which, far from violating the Charter, flows from it.
n15 Ibid. at paras. 41, 43.
n 16 Ibid. at para. 1.
n17 As of course did the executive, initially in its framing of the reference and subsequently in its written
submission. Regarding the latter, see "Factum of the Attorney General of Canada" (24 October 2003) at paras.
1-2, 11-16, online: Department of Justice Canada <www.justice.gc.ca/en/dept/pub/factum/index.html>.
nl8 Same-Sex Reference, supra note 3 at para. 22.
nl9 That it speaks in this way knowing full well that when Parliament has twice spoken on the matter, it did
so to affirm heterosexual marriage, renders its speech both disingenuous and a remarkable departure from the
separation of powers. These affirmations were each, of course, in response to judicial initiative on same-sex
marriage. The first was by way of a Commons motion, which was passed on 8 June 1999 by a vote of 216 to 55
in favour, and read as follows: "Marriage is and should remain the union of one man and one woman to the ex-
clusion of all others, and ... Parliament will take all necessary steps to preserve this definition of marriage in
Canada." See House of Commons Journals, No. 240 (8 June 1999) at 2064. For the second, which was no mere
motion, see infra note 87.
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n20 Same-Sex Reference, supra note 3 at para. 22. This formulation will be considered in Part III of this
comment.
n21 Ibid. at para. 42.
n22 See e.g. ibid. at para. 16. ("The dominant characteristic of s. 1 of the Proposed Act is apparent from its
plain text: marriage as a civil institution ... This section stipulates the threshold requirements of that institution.")
n23 As put by the Court: "The Proposed Act is limited in its effect to marriage for civil purposes: see s. 1. It
cannot be interpreted as affecting religious marriage or its solemnization" (ibid. at para. 55). Yet, there may be
some uncertainty here: "The right to same-sex marriage conferred by the Proposed Act may conflict with the
right to freedom of religion if the Act becomes law" (ibid. at para. 52).
n24 Incidentally, that first the executive and then the Court monikers the marriage over which the state has
authority, "civil" lends a note of irony to matters, since in our tradition the adjective "civil" --as in civil rights--
is generally meant to impart that the matter so described exists prior to, and independent from, the state. See e.g.
Lloyd L. Weinrib, "What Are Civil Rights?" (1991) 8:2 Social Philosophy & Policy 1 at 2 (arguing as follows:
"Civil rights are ... prior and independent from law. Laws are enacted to protect civil rights; failing enactment,
the law is said to deny them. They seem, therefore, not to depend on the law for existence, but only for recogni-
tion"). For the notion of the civil more widely considered as civil society, see infia Part liLA.
n25 The tone of the Court's text is at once summary and dismissive. See for e.g. Same-Sex Reference, supra
note 3 at paras. 24 ("none of these arguments persuade"); 25 ("the appeal to history therefore in this particular
matter is not conclusive"); 30 ("it is therefore distinguishable and does not apply here"); 33 ("this is clearly not
the case"); 48 ("this argument was discussed above ... and was rejected"). This tone is not incidental hubris; it is
instead a necessary consequence, and expression, of the Court's conviction about the moral stature and place of
the constitution. About which see infra Part II.D and "Transformation," supra note 9 at 641.
n26 Same-Sex Reference, ibid. at para. 16.
n27 Ibid. at para. 18. Constitution Act, 1867, supra note 13.
n28 Same-Sex Reference, ibid. at para. 19.
n29 R. v. Blais, [2003] 2 S.C.R. 236 at para. 16.
n30 Incidentally, the Court distinguishes Blais in a manner both curt and specious: see Same-Sex Reference,
supra note 3 at para. 30.
n31 Constitution Act, 1867, supra note 13.
n32 In its Factum, the federal executive put before the Court a not very helpful, and very brief, legal history
of the state and marriage in British North America (see supra note 17, paras. 12, 25-27, 29). A better history
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would direct the Court to proceed in its interpretation from the facts of social and especially religious life in
Canada at that time. Viewed from that vantage, the split constitutional authority over marriage would appear de-
signed to recognize and preserve the differing social practices of marriage and in that way to prevent either order
of government from favouring one at the expense of the other. That interpretation, of course, would preclude
rendering the provisions, as the Court does here, so as to vest ownership of marriage in the state.
n33 For more on the social and legal history of marriage, see infia notes 80-87 and accompanying text.
n34 Same-Sex Reference, supra note 3 at paras. 20-21. Fully stated the argument was that "the meaning of
marriage is constitutionally fixed, necessarily incorporating an opposite-sex requirement," because s. 91(26)
"effectively entrenches the common law definition of'marriage' as it stood in 1867."
n35 For full statement and Court's rejection of this submission, see ibid. at paras. 31-33.
n36 Unimaginative: the first because intentionalist interpretation remains so in disfavour and so easily set
aside (but see L.M. Solan, "Private Language, Public Laws: The Central Role of Legislative Intent in Statutory
Interpretation" (2004) Brooklyn Law School, Public Law Research Paper No. 5, online: Social Science Research
Group <http://ssrn.com/abstract= 515022>); and the second because it both misses the real point and makes the
point it does address so badly.
n37 Same-Sex Reference, supra note 3 at para. 21 (sub-heading).
n38 As put by the Court: "In essence, there is no topic that cannot be legislated upon, though the particulars
of such legislation may be limited by, for instance, the Charter" (ibid. at para. 34).
n39 Though having nothing upon which to fix judicial action has deterred none of the courts whose machi-
nations have led to the present Take, for instance, the Court in Halpern, supra note 7: it credentialized its di-
rective concerning the law of marriage by latching onto the House of Lords judgment in Hyde v. Hyde and
Woodmansee (1866), I L.R. P. & D. 130 [Hyde], which through cynicism or stupidity (and on the necessarily
implied premise that before 1866, neither the state nor the law had any conception of what marriage might be), it
read as constituting marriage at law as the union of one man and one woman to the exclusion of all others. For
commentary on this aspect of Halpern, see "Transformation," supra note 9 at 622-25.
n40 A V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillian &
Co., 1924) at c. 1.
n41 Supra note 12. For the Court's declaration that heads of power are subject to "progressive interpreta-
tion," see Same-Sex Reference, supra note 3 at paras. 22, 29.
n42 Supra note 4.
n43 Same-Sex Reference, supra note 3 at para. 23.
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n44 Ibid.
n45 Ibid. at para. 46.
n46 Ibid. at para. 23.
n47 Ibid. at para. 22.
n48 [1930] A.C. 124 (P.C.).
n49 Same-Sex Reference, supra note 3 at para. 24.
n50 Ibid. at para. 23.
n51 For recent work concerning, see Steven Wall & George Klosko, eds., Pelfectionism and Neutrality:
Essays in Liberal Themy (Lanham, Md.: Rowman & Littlefield, 2003); and George Sher, Beyond Neutrality:
Pelfectionism and Politics (New York: Cambridge University Press, 1997).
n52 See e.g. Arthur A. Shenfield, Limited Government, Individual Liberty and the Rule of Law
(Chettenham, U.K.: Edward Elgar, 1998); and Eugene W. Hickok et al., eds., Our Peculiar Security: The Writ-
ten Constitution and Limited Government (Lanham, Md.: Rowman & Littlefield, 1993).
n53 See e.g. Bruce A. Ackerman, We The People: Foundations, vol. 1 (Cambridge, Mass.: The Belknap
Press ofHarvard University Press, 1991).
n54 Minister of Justice Cotler has, since his elevation to the federal executive, quickly established himself
the poster boy of this ideological fervour. Recently, he intoned as follows: "The Charter is the expression and
entrenchment of our rights and freedoms, the codification of the best of Canadian values and aspirations. It de-
fines us as to who we are as a people and what we aspire to be" (Cristin Scmitz, "Tories vow to amend new bill"
National Post (2 February 2005) A8). Even were this view not preposterous as political philosophy-- and in a
moment I shall attempt to convince that it is--it would remain silly, both because the provisions of Charter are
no more than a local iteration of standard constitutional protections and because Canadian political and social
history did not begin in 1982. Concerning the latter, in a news release attending the tabling of Bill C-38 (about
which see infra, Postscript), the Minister persists, with pride, in this historical revisionism: "Canada," he is
quoted as declaring, "is a land built on a tradition of tolerance and respect, rooted in a Charter." (Department of
Justice Canada, Press Release, "Government of Canada to Introduce Legislation to Extend Civil Marriage to
Same-Sex Couples" ( 1 February 2005), online: Government of Canada
<http://canada.justice.gc.ca/en/news/nr/2005/doc _313 7 4.html> ).
n55 There is a caveat here, a narrow but nonetheless essential one: if a social institution stands so egre-
giously at odds with liberal political morality that its continuance clearly compromises the liberal credentials of
the state and so its status as a liberal state -- such as was the case with slavery in antebellum America - then a
liberal state has an obligation, just because it is a liberal state, to take on the task of abolishing the institution.
For an exploration of the proper response of the liberal state to "bad civil society" of a less threatening sort --
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there defined as civil associations that "actively and publicly challenge [the value of reciprocity] through the
promotion of hatred, bigotry, racism, anti-Semitism, and aggressive xenophobia" (infra at 839-40) --see, Simo-
ne Chambers & Jeffrey Kopstein. "Bad Civil Society" (2001) 29 Political Theory 837.
n56 As regards the instant matter, I think of LaForest J.'s comments in Egan v. Canada, [19954] 2 S.C.R.
513. In a remarkably short period, LaForest J.'s concession of marriage to the realities of social life and human
biology has been everywhere erased from judicial and governmental memory.
n57 That the Court, in an offhanded manner, pinned the past's unacceptability on its association with Chris-
tianity will be addressed in Part III of this comment. As put by the Court, after what appears to be a reiteration of
the silliness in Halpern (supra notes 9, 39), with respect to the significance of the decision in Hyde: "The refer-
ence to 'Christendom' is telling. Hyde spoke to a society of shared social values where marriage and religion
wire thought to be inseparable. This is no longer the case. Canada is a pluralistic society" (Same-Sex Reference,
supra note 3 at para. 22).
n58 Same-Sex Reference, ibid.
n59 Ibid. at para. 24.
n60 Supra note 47.
n61 Same-Sex Reference, supra note 3 at para. 25.
n62 Ibid. at para. 27.
n63 Ibid.
n64 Ibid. at para. 28.
n65 Anthony Kronman, "Living in the Law" in David Luban, ed., The Ethics of Lawyers (New York: New
York University Press, 1994) 835 at 870. IfHabermas is correct, then this view of judicial obligation has deep
roots indeed: see Jurgen Habermas, Moral Consciousness and Communicative Action, trans. by Christian
Lendhardt eta/. (Cambridge, Mass.: MIT Press, 1990) at 68 ("the justification of norms and commands requires
that a real discourse be carried out"), 103 ("only those norms may claim to be valid that could meet with the
consent of all affected") and -- especially apposite here --109 (rejecting judgments that are "dissociated from the
local conventions and historical coloration of a particular form of life").
n66 According to a poll published by the National Post, 66 percent of Canadians support what the pollsters
termed "the traditional defmition of marriage" (Tom Blackwell, "Most want Referendum" National Post (2
February 2005) A1).
n67 Supra notes 42-46 and associated text.
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42 Alberta L. Rev. 1099, *
n68 George Kateb, The Inner Ocean: Individualism and Democratic Culture (Ithaca: Cornell University
Press, 1992) at 207, 211.
n69 Disclosure of both the unintelligibility and the ideology of human dignity and rights, happily, has re-
cently begun. To sample the former, see Timothy Caulfield, "Human Cloning Laws, Human Dignity, and the
Poverty of the Policy Making Dialogue" (2003) 4:3 BMC Med. Ethics I; and for the latter, see James Q. Whit-
man, "On Nazi 'Honour' and the New European 'Dignity"' in Christian Joerges & Navraj Singh Ghaleigh, eds.,
Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism Over Europe and Its Legal
Traditions (Oxford: Hart, 2003) 243.
n70 I have explored these matters in more detail elsewhere: see F.C. DeCoste, "Law Transcendent: The Ju-
dicial Conquest of Ordinary Lite" (2004) 8:1 The Newman Rambler 1.
n71 I refer to, and the quoted phrase is taken from, Henri de Bracton, De Legibus Et Consuetudinibus
Angliae (1220-1230), which is available redacted and in translation in Daniel R. Coquilette, The An-
glo-American Legal Heritage (Durham, N.C.: Carolina Academic Press, 1999) 88 at 92.
n72 I mean "abnormal" in the Kuhnian sense of paradigm shifting: see Thomas S. Kuhn, The Structure of
Scientific Revolutions, 2d ed. (Chicago: University of Chicago Press, 1970) at esp. c. 8.
n73 Same-Sex Reference, supra note 3 at para. 43.
n74 I have explored the implications of the value-positive view of the constitution at some length in F.C.
DeCoste, "The Separation of Powers in Liberal Polity: Vriend v. Alberta" (1999) 44 McGill L.J. 231.
n75 Same-Sex Reference, supra note 3 at para. 22 [emphasis added].
n76 I can here only sketch this relationship. For a more detailed account, see "Transformation," supra note 9
and F.C. DeCoste, "What's the Charter Got to Do With It?" in Daniel Cere & Douglas Farrow, eds., Divorcing
Marriage: Unveiling the Dangers in Canada's New Social Experiment (Montreal & Kingston: McGill-Queens
University Press, 2004) 120.
n77 Stuart Hampshire, Innocence and Experience (Cambridge, Mass.: Harvard University Press, 1989) at
68.
n78 There is a rich, and steadily growing, literature devoted to it. See e.g. Jean L. Cohen & Andrew Arato,
Civil Society and Political Theory (Cambridge, Mass.: MIT Press, 1992); John Ehrenberg, Civil Society: The
Critical History of An Idea (New York: New York University Press, 1999); Don E. Eberly, ed., The Essential
Civil Society Reader (Lanham, Md.: Rowman & Littlefield Pub., 2000); Simone Chambers & Will Kymlicka,
eds., Alternative Conceptions of Civil Society (Princeton: Princeton University Press, 2002); and Nancy L.
Rosenblum & Robert C. Post, eds., Civil Society and Government (Princeton: Princeton University Press. 2002).
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42 Alberta L. Rev. 1099, *
n79 The caveat noted earlier-- see supra note 55 -- of course continues to apply here.
n80 In 1563, the Council of Trent adopted the decree Tametsi, which, certain exceptions aside, invalidated
marriages that did not take place in the presence of the parish priest of one of the couple and of at least two wit-
nesses. The decree reversed what had been the Church's law since at least the twelfth century, that marriages en-
tered into clandestinely, without ceremony and without the presence of a priest, were valid, even if unlawful. By
the sixteenth century, virtually every European state had either adopted the decree Tametsi or promulgated secu-
lar legislation to the same effect, to invalidate clandestine marriage.
n81 With this Act, England fmally joined Europe in invalidating clandestine marriage. The Act was replaced
in 1873 with a statute that remains in force in England and that, in one fashion or another, is the law in every
Anglo-American legal jurisdiction. The lesson of the Act, and its continuing influence, for present purposes, is
this: that the Act was intended, by in effect replicating Church law, to support marriage and not to proclaim state
sovereignty over it. See R.B. Outhwaite, Clandestine Marriage in England, 1500-1850 (London: Hambledon
Press, I 995); Rebecca Probert, "The Judicial Interpretation of Lord Hardwicke's Act 1753" (2002) 23:2 J. Leg.
Hist. 129; Stone, ibid. at 29-34; and John R. Gillis, For Better, For Worse: British Marriages 1600 to the Pre-
sent (New York: Oxford University Press, 1985) at esp. I 7-31, 88-89.
n82 Supra note 71.
n83 Sir John Fortescue, On the Laws and Governance of England (circa 1470), ed. by Shelley Lockwood
(New York: Cambridge University Press, 1997).
n84 Sir Edward Coke, Institutes of the Laws of England (1628, 1642, 1644) (London: W. Clarke & Sons,
1817).
n85 Sir William Blackstone, Commentaries on the Laws of England, (1765-1769) (Chicago: University of
Chicago Press, 1979).
n86 Each, rather, deals with the rights and obligations attaching to the status of husband and wife and, in so
doing, with the doctrines of unity and consortium that together defmed the nature and content of the marital rela-
tionship at conunon law.
n87 The move to definition was a response to judicial occupation with same-sex marriage. This response
took shape first in a Conunons motion (see supra note 19) and subsequently in Bill C-23, An Act to modernize
the Statutes of Canada in relation to benefits and obligations, 2nd Sess., 36th Parl., 2000, cl. 1.1 [now: Modern-
ization of Benefits and Obligations Act, S.C. 2000, c. 12, s. 1.1] of which reads as follows: "For greater certainty,
the amendments made by this Act do not affect the meaning of the word 'marriage,' that is, the lawful union of
one man and one woman to the exclusion of all others."
n88 Supra note 39.
n89 This analysis of Hyde is taken in large part from "Transformation,'' supra note 9 at 623.
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42 Alberta L. Rev. 1099, *
n90 I say "in passing," because, since the matter at issue in Hyde was polygamy and not heterosexuality, the
definition, on a strict reading, is obiter as regards the latter.
n91 Hyde, supra note 39 at 133.
n92 Same-Sex Reference, supra note 3 at paras. 21-22.
n93 Hyde, supra note 39 at 133.
n94 Ibid.
n95 Supra note 57.
n96 Same-Sex Reference, supra note 3 at para. 22.
n97 Wrong on the following two counts: first, it is very likely, given the text of the entire judgment in Hyde,
that the Court meant by Christendom simply to refer to states kindred to the U.K. because they, like it, are states
in the Euro-American legal tradition; second, even were that not the case, the derogatory "sectarian" would be
proper only were it applied with discipline and such discipline would preclude its use as regards the Court in
Hyde. Regarding the latter, see e.g. Michael J. Perry, Love and Power: The Role of Religion and Morality in
American Politics (New York: Oxford University Press, 1991) at 106 (defining sectarian argument as one that
"relies on experiences or premises that have little if any authority beyond the confines of one's own moral or re-
ligious community").
n98 Of which Harold Berman's groundbreaking work is the start and the center. See Law and Revolution,
supra note 80 and Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the
Western Legal Traditions (Cambridge, Mass. : The Belknap Press of Harvard University Press, 2003).
n99 Harold J. Berman, "Religious Foundations of Law in the West: An Historical Investigation" (1983) 1 J.
Law & Religion 3 at 41.
nlOO See e.g. Michael J. Perry, Under God? Religious Faith and Liberal Democracy (New York: Cam-
bridge University Press, 2003); Christopher L. Eisgruber & Lawrence Sager, "Religious Liberty and the Moral
Structure of Constitutional Rights" (2000) 6:3 Legal Theory 253; J.P. Day, "Collective Liberty and Religious
Liberty" (1986) 23 American Philosophical Q. 243; and especially, Emmanuel Levinas, "Reflections on the
Philosophy ofHitlerism" (1990) 17 Critical Inquiry 62 (trans. by Sean Hand).
nlOl In the cause of abundant caution, I should add that these claims are made with Hartian modesty in the
sense that they arise from "reflection on some very obvious generalizations-- indeed truisms-- concerning hu-
man nature and the world in which men live ... as long as these hold good." See H.L.A. Hart, The Concept of
Law (Oxford: Clarendon Press, 1961) at 188.
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42 Alberta L. Rev. I099, *
ni02 See e.g. Philip T. Neisser, "The Will to Harmony and the Pursuit ofFamily" (1994) 20:3 Social Theo-
ry & Practice 253.
ni03 See e.g. Jennifer Roback Morse, "No Families, No Freedom: Human Flourishing in a Free Society"
(I999) I6: I Social Philosophy & Policy 290.
ni04 I take the ideal/ideals distinction from Fishkin. See James S. Fishkin, Justice, Equal Opportunity, and
the Family (New Haven: Yale University Press, I983) (arguing for a "limited liberalism," which offers conflict-
ing principles without any single vision of the just society).
ni05 Supra Part II.D.
ni06 Anne M. Cohler, Basia Carolyn Miller & Harold Samuel Stone, eds., Montesquieu: The Spirit of the
Laws (Cambridge: Cambridge University Press, I989) at I 55 (Book XI, c. 4).
ni07 Ibid. at 63 (Book V, c. I4).
ni 08 Ibid. at I87 (Book XII, c. I).
ni 09 !d. at I 57 (Book XI, c. 6).
niiO !d. at I64 (Book XI, c. 6).
niii Ibid. at I82 (Book XI, c. IS).
nii2 Same-Sex Reference, supra note 3 at para. 22.
nii3 Ibid. at para. 23.
nii4 Ibid. at para. 46.
nii5 This perception is proper for a variety of reasons, one of which is especially prominent, namely, that
Western states have acted as regards to religion so as to contain and to diminish religious freedom. See e.g.
Julien Taieb, "Freedom of Religion: from France to the United States, a National Conflict of Law" (2004) 4:3
Global Jurist Advances I; and Richard W. Garnett, "Assimilation, Toleration, and the State's Interest in the De-
velopment of Religious Doctrine" (2004) 51 UCLA L. Rev. 1645.
nii6 Same-Sex Reference, supra note 3 at paras. 58 (freedom of religion subject to "exceptional circum-
stances which we cannot at present foresee") and 60 (subject to "unique circumstances with respect to which we
will not speculate").
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42 Alberta L. Rev. I099, *
nii7 Ibid. at paras. 24-28.
nii8 Ibid. at paras. 45-46.
nii9 Ibid. at para. 47.
ni20 Ibid. at para. 48.
ni2I Ibid. at para. 51.
ni22 For just such a view-- there of the state from the perspective of faith-- see David Fergusson, Church,
State and Civil Society (New York: Cambridge University Press, 2004).
ni23 Foreign Affairs Minister Pettigrew recently rendered this with crude and cruel candour: see Elizabeth
Thompson & Anne Dawson, "Church told to butt out: same-sex debate no place for religion: Pettigrew" Nation-
al Post (28 January 2005) AI.
ni24 See e.g. "Calling Parliament's Bluff," Editorial, National Post (IO December 2004) A23; Andrew
Coyne, "True to the Charter" National Post (II December 2004) A24; and "How Deferential is the Supreme
Court?," Editorial, Globe & Mail (24 January, 2005) AI2.
nl25 For a splendid book-length exploration of this precept of civilized life, see Avishai Margalit, The De-
cent Society (Cambridge, Mass.: Harvard University Press, I996).
ni26 Hampshire (supra note 77 at 72) captures this perfectly: "When justice needs to be enforced and is
enforced, the scene is not one of harmony; some ambitions are frustrated. A barrier is erected, an impossibility
declared."
nl27 For an exploration of the effects of equality jurisprudence along these lines, see Deborah L. Brake,
"When Equality Leaves Everyone Worse Off: The Problem of Leveling Down in Equality Law" (2004) 46 Wm.
&MaryL. Rev. 513.
ni28 See Department of Justice Canada, "Frequently Asked Questions-- Civil Marriage Act" (I February
2005), online: Government of Canada <http://canada.justice.gc.ca/en/news/nr/2005/doc _3I378.html>.
ni29 John lvison, "Rights crusade continues apace" National Post (2 February 2005) AI. This has been the
only report on the Minister's comments on tabling the Bill that I have been able to uncover. Neither the Depart-
ment of Justice's Web site, nor the Web site of the Parliament of Canada, so far offers the text.
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42 Alberta L. Rev. 1099, *
nl30 After a lengthy, ten-part preamble, and excluding a short title provision (s. 1), the Bill consists of
fourteen sections, the first three of which concern the re-definition of marriage and the remainder of which con-
cern what the Bill terms (as it turns out modestly) "consequential amendments" to a number of other statutes.
The re-definition sections read as follows:
2. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
3. It is recognized that officials of religious groups are free to refuse to perform marriages that are
not in accordance with their religious beliefs.
4. For greater certainty, a marriage is not void or voidable by reason only that the spouses are of
the same sex.
Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil pwposes, 1st Sess., 38th
Pari., 2005, cls. 2-4.
n131 Department of Justice Canada, "Background- Civil Marriage Act" (1 February 2005), online: Gov-
ernment of Canada <http :I I canada.justice.gc.ca/ enlnewslnrl2 00 51 doc_ 313 7 6.html>.
n132 Ibid.
n133 "Legal parent replaces "natural parent" in various sections of the Income Tax Act, R.S.C. 1985, c. 1-1,
(5th Supp.), as amended. Supra note 130, cl. 10-12.
n134 Ibid., cl. 5. Section 5 of the Bill makes work this replacement in the Canada Business Corporations
Act, R.S.C. 1985, c. C-44, as amended, and s. 6 does the same as regards the Canada Cooperatives Act, S.C.
1998, c. 1, as amended.
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TAB 73




LexisNexis
LENGTH: 13329 words
Copyright (c) 2003 The Alberta Law Review
Alberta Law Review
September, 2003
41 Alberta L. Rev. 619
Page I
FORUM: SAME-SEX UNIONS AND THE LAW: The Halpern Transformation: Same-Sex Marriage, Civil Society,
and the Limits of Liberal Law
NAME: F.C. DeCOSTE*
810:
*Professor, Faculty of Law, University of Alberta.
LEXISNEXIS SUMMARY:
... The geography to the destination in Halpern v. Canada (A. G. ... With this background in place, Part IV will convey
the meat of my case against the legal recognition of same-sex unions as marriage and against the performance of the
Canadian state in Halpern which, because it mistakes dirigiste social engineering for liberal statecraft, must be
condemned as a failure of political morality .... The word "marriage" is a descriptor of a unique opposite-sex bond that
is common across different times, cultures and religions as a virtually universal norm ... . A liberal state may only
exceed recognition in its relations with standing social practices, institutions, and traditions when the continuance of a
particular institution, practice, or tradition compromises the liberal credentials of the state and so its continuance as a
liberal state .... Before addressing the performance of the Canadian state in Halpern, it is important to be precise as
regards the methodology by which a professedly liberal state may, by reason of perfectionist zeal or expansionist
ambition, abandon its liberal credentials in this way .... On this understanding, it becomes the Court's aim to co-ordinate
the institution of marriage to the norms of equality articulated by the judicial branch of the Canadian state since 1982 . ...
HIGHLIGHT: Law's attitude is constructive: it aims ... to lay principle over practice to show the best route to a better
future, keeping the right faith with the past.
-- Ronald Dworkin n I
The authority of law [is] the maintenance of the community's past.
--Paul W. Kahn n2
Freedom is located in the realm of the social...
-- Hannah Arendt n3
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TEXT:
[*619] I. INTRODUCTION
The geography to the destination in Halpern v. Canada (A. G.) n4 is simple enough: (a) there exists a common law
rule which at once prescribes that marriage is a heterosexual union and that therefore bars same-sex marriage; n5 (b)
this rule distinguishes between heterosexual and homosexual couples because it denies the latter access to the regulatory
regimes that govern and constitute marriage at law n6 and (c) this distinction is discriminatory and violative of the
equality rights of homosexuals provided by s.l5(1) of the Canadian Charter of Rights and Freedoms. n7 This must be
so because sexual orientation is an analogous ground under s. 15( I), n8 because equality protects and expresses human
dignity, n9 because dignity is violated when the person/claimant who is subject to differential treatment on an
enumerated or analogous ground reasonably feels that his or her dignity is demeaned by that treatment, nl 0 and [*620]
because a person/claimant will meet that test when, as here, nll he or she can prove, having regard to "the individual's
or group's traits, history, and circumstances," nl2 that the effect of the treatment is to perpetuate or to promote "the
view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of
Canadian society." nl3 Simple too, at least facially, is the character of that destination: that confining marriage to men
and women unreasonably infringes the equality rights of homosexuals and is therefore constitutionally unacceptable in a
free and democratic society such as Canada. In the result, marriage must be "reformulated ... as 'the voluntary union for
life of two persons to the exclusion of all others."' nl4
More complex, and certainly more intriguing, is how such an unusual nl5 destination became at all possible. In
attempting to answer this question -- and the question of consequences that attends it -- this comment will not concern
itself at any length with the constitutional jurisprudence in which the Halpern Court wraps its transformation of the
institution of marriage. nl6 Instead, my primary concern will be whether such a destination is properly available to a
liberal state. I shall argue that it is not on grounds that, properly conceived, the relationship of a liberal state to the
standing institutions and traditions of civil society forbids it. I shall also argue that the effect of this decision, and others
like it, n 17 is, on the one hand, to wrench the discourse of rights and of constitutionalism more generally out of the
liberal framework on which the credentials of each singularly depends and, on the other, to elevate the state, at its sole
discretion, to the illiberal position of manager, colonizer, and conqueror of civil society.
In Part II, I shall explore the points of the decision that both permitted the Court its innovation and shielded it from
the normative matter on which, in my view, the issue in [*621] Halpern properly depends, namely, the limits of
authority of the liberal state as regards civil society. Two matters are critical in these regards: the Court's
(mis)interpretation of the common law of marriage (which permitted it to elide the distinction between the constitution
and the recognition of social practices) and its (mis)understanding of marriage (which permitted it to ignore the sexed
and gendered nature of marriage). In Part III, I hope briefly to dispatch two canards that very often misdirect debate
about the legal propriety of same-sex marriage, namely, that the matter properly falls to the legislative branch and that
the incapacity of homosexuals to marry one another is analogous to incapacity on grounds ofrace. With this
background in place, Part IV will convey the meat of my case against the legal recognition of same-sex unions as
marriage and against the performance of the Canadian state in Halpern which, because it mistakes dirigiste social
engineering for liberal statecraft, must be condemned as a failure of political morality. In a brief conclusion, I shall
dwell on the overall significance of the state's performance in Halpern as regards both marriage and the practices of
liberal governance in Canada, on the tone and temper of the judgment itself, and on the nature of a properly liberal
response to the question of same-sex unions.
II. MISCONCEPTIONS
A. THE LAW OF MARRIAGE
To make marriage muster to constitutional command, it fell to the Court to rummage around in legal history to find
something, anything, that might make of marriage a legal artefact, a convention "prescribed by law." nl8 But the Court
did not rummage deeply enough, nor did it read what it did find at all properly.
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41 Alberta L. Rev. 619, *621
Had this Court undertaken seriously the enterprise of uncovering the history of the law's attitude to marriage, it
might have begun with the classics of our legal tradition-- with Bracton, nl9 Fortescue, n20 Coke, n21 and
Blackstone. n22 Had it done so, it would have been immediately struck by this: though each of these commentaries on
the Anglo-American legal tradition deals with marriage, none of them defines marriage, either on its own initiative or
by way of reporting judicial determinations of the matter. Instead, each deals with the rights and obligations attaching to
the status of "husband" and "wife" n23 (a matter which will be of concern when this comment turns its attention to the
Court's understanding of marriage), and in so doing, with the doctrines of unity and consortium that together defined the
nature and content of the marital relationship at common law. So informed, the Court might have been moved to ask
how works so central to our law would miss a definition so elemental to the Court's own project in Halpern.
[*622] The Court might then also have been moved to inquire into the history of the state's relationship with
marriage. Had it done so, it would have discovered that the state came late to marriage. Indeed, it was not until 1753,
with the passage of Lord Hardwicke's Marriage Act, that the state finally became a significant player in the coming
together of its citizens through marriage. n24 Had the Court then traced the history of the state's subsequent
involvement, it would have become clear that, like the common law commentators, the state, until just recently, n25
found it never necessary to define marriage legislatively. Rather, as did they, the state simply assumed that marriage had
a plain and common meaning in legal and cultural commerce.
With the produce of these inquiries at hand, the Court would have placed itself to deal competently with the
decision in Hyde v. Hyde and Woodmansee, n26 the 1866 House of Lords decision on which the whole of its
subsequent enterprise depends. It would have first thought it an historical oddity -- here and nowhere else in our law is
marriage defined -- and, on that account alone, been moved both to explain and to situate the definition.
[*623] Hyde concerned whether a party to a polygamous marriage contracted in a foreign jurisdiction (in that case,
Utah) was entitled to matrimonial relief or to a declaration as to the validity of the marriage in the English courts under
the Divorce Act then governing those matters in England. The Court in Hyde answered negatively in both regards and
that answer remained the rule in Hyde until abolished by statute. n27 En passant, the Court delivered itself of the
following opinion on the nature of marriage, with which, in part (here italicized), the Halpern Court begins its
judgment: n28
What then is the nature of this institution as it is understood in Christendom? Its incidents vary in
different nations; but what are its essential elements and invariable features? If it be of common
acceptance and existence, it must needs (however varied in different countries in its minor incidents)
have some prevailing identity and universal basis. I conceive that marriage, as understood in
Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman,
to the exclusion of all others. n29
Since the fact at issue in Hyde was polygamy and not heterosexuality, on a strict reading of the case, the definition
is obiter as regards the latter (as some proponents of same-sex marriage have rightly argued n30). But my concern with
the Halpern Court's interpretation of Hyde concerns another, much more important matter.
Properly read, the so-called rule in Hyde is no rule at all, simply because what the Court is about in Hyde, and
expressly so, is not prescription, but recognition. That is, the Court was undertaking not to define marriage, but to
recognize what in societies such as ours constitutes the form of life, the "institution," n31 we know as marriage. n32
Moreover, that "the laws ... throw about" that form of life "a variety of legal incidents" is then secondary to the
recognition of it as something beyond and antecedent to the law. n33 The Hyde Court, then, did not claim sovereignty
over marriage, and even less, did it conflate marriage as cultural practice with the law of marriage. n34 Instead, the
Court thought the law and its own governance epiphenomenal, as each responses to, and not productive of, the
independent cultural practice we know as marriage. And with this, the oddity of the definition is resolved: the Hyde
Court, per force of the issue before it simply made plain what the commentators had no need to make plain, but no less
than the Court recognized-- namely, that marriage is a form of life to which the law in certain measure responds, but
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which it does not itself create.
[*624] Though the Attorney General of Canada ceded that Hyde established a legal rule, n35 it nonetheless
placed before the Court, as part of its submissions on s. 15( I) of the Charter, an argument similar in certain respects to
mine here. As reported by the Court:
The AGC submits that marriage, as an institution, does not produce a distinction between opposite-sex
and same-sex couples. The word "marriage" is a descriptor of a unique opposite-sex bond that is
common across different times, cultures and religions as a virtually universal norm. Marriage is not a
common law concept; rather, it is a historical and worldwide institution that pre-dates our legal
framework. The Canadian common law captured the definition of marriage by attaching benefits and
obligations to the marriage relationship. Accordingly, it is not the definition of marriage itself that is the
source of the differential treatment. Rather, the individual pieces oflegislation that provide the authority
for the distribution of government benefits and obligations are the source of the differential treatment.
Moreover, since the enactment of the Modernization of Benefits and Obligations Act, same-sex couples
receive substantive equal benefit and protection of the federal law. n36
Now, I have no desire to pass judgment on the quality of this argument, though my assessment of it should become
clear by the end of this essay. Nor do I think it important to dissect the Court's reasoning in rejecting it. What I should
like to pursue, rather, is the Court's understanding of the relationship between the law of marriage and the cultural
practice of marriage, since it is that which matters most both to the outcome in Halpern and the course of my
forthcoming argument about the limits oflaw.
At one point, the Court opines that, in its view, "marriage is a legal institution, as well as a religious and a social
institution." n37 It then declares, first, that "this case is solely about the legal institution of marriage" and second, that
"it is not about the religious validity or invalidity of various forms of marriage." n38 But, off-handed comments like
"no one is disputing that marriage is a fundamental societal institution" aside, n39 the Court nowhere engages either the
social or the relationship that ought properly to obtain between it and the state. By eliding the meaning and significance
of marriage as cultural practice and as an object of state interest in this fashion, the Court consigns the whole ofthat part
of social life to its governance. Thus can it elsewhere proclaim that "'marriage' does not have a constitutionally" -- I here
read "legal"-- "fixed meaning" and that "like the term 'banking' and the phrase 'criminal' law, the term 'marriage' ... has
the constitutional flexibility necessary to meet changing realities of Canadian society" -- as, of course, those needs are
divined by the judiciary. n40
The linchpin of this judicial imperialism resides in the Court's response to the aforementioned submission of the
Attorney General of Canada. By declaring "irrelevant" "the fact that the common law adopted, rather than invented, the
opposite-sex feature of marriage," n41 the Halpern Court erects a barrier between the social and the legal that, should
[*625] it ever be passed, subordinates the social to the legal. This becomes clear when the Court next proclaims that
because "Canadian governments chose to give legal recognition to marriage," n42judicial supervision of this cultural
practice necessarily follows. Now, to make it plain, to argue thus is to display an impoverished legal sense and
sensibility. Though my full argument to this assessment must await Part IV, suffice it here to say that by obliterating the
crucial distinction between creation and recognition, the Court is holding the nature of the relationship that ought
properly to obtain between liberal polity and liberal community hostage to its claim of sovereignty.
B. THE MEANING OF MARRIAGE
The Halpern Court finds a second mandate for its re-manufacture of marriage in its understanding of marriage.
Notwithstanding the claim that its concern is exclusively "the legal institution of marriage," n43 the Court ignores
entirely the law of marriage and puts in its place a certain cultural understanding of marriage then paraded as law. Let
me explain.
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41 Alberta L. Rev. 619, *625
Social practices are only intelligible in terms of their "point," n44 and any given practice can only (continue to)
exist if its practitioners or participants are seized of some "sense" n45 of the overall point of the "form of life" n46
which the practice brings into the world. Marriage is a social practice that in life and subsequently, in law, has a point
that constitutes it as a distinct practice. The point of marriage is the bestowal of a certain status on those who choose
and are otherwise capable of entering into it and the creation of relations between them. n4 7 The status bestowed by
marriage is that of"wife" and "husband," and the relation between husband and wife is the form of life that marriage
alone creates and of which it alone is the practice. Unless, as Orwell feared n48 (and the Halpern Court appears to
think n49), words can themselves be bestowed any meaning and so manipulated endlessly, tradition, practice, and
common understanding notwithstanding, then the statuses that constitute the point and contribution of marriage make of
it an inherently heterosexual practice. To make it plain: on pain of either nonsense or self-serving delusion, marriage as
an institutional practice is deeply, irretrievably, and oppositely-sexed, just because it is the practice of men and women
uniting as husbands and wives. n50 This is its nature precisely because of the nature of the [*626] statuses it bestows
and not because of any function, procreation especially, that some n51 may wish to associate with them.
The Halpern Court need have looked no further than Hyde n52 for evidence at law of this understanding of
marriage. As put by the Court:
Marriage has been well said to be something more than a contract, either religious or civil --to be an
Institution. It creates mutual rights and obligations, as all contracts do, but beyond that it confers a status.
The position or status of "husband" and "wife" is a recognized one throughout Christendom: the laws of
all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and
induce definite lights upon their offspring. n53
Now, though the Ontario Court of Appeal otherwise pays the Court in Hyde much regard-- it is there after all that it
found the 'rule' on which its entire enterprise depends -- it pays no heed at all to the latter's speech about marriage as
"institution and status" n54 or about "the (*627] duties which it is the office of the marriage law in this country to
assert and enforce." n55 Just the contrary: in the whole of its judgment, the Halpern Court not once utters or otherwise
refers to the words "husband" or "wife," nor does it conceive of marriage in terms of status. What we are offered instead
is a law of marriage so reformulated and redesigned that, contrary apparently to the Court's own understanding, the
institution and the law that recognized it are each "abolished." n56
It is the Halpern Court's understanding of marriage which makes good its refusal to recognize both the
status-conferring nature of marriage as institution and the sexed nature of the status that it confers. In the place of men
and women, the Court offers as the subjects of marriage what it terms "conjugal couples" n57 which are, in its view,
n58 either "same-sex" n59 or "opposite-sex." n60 In the place of marriage as the bestowal of status, the Court
construes marriage as the expression and recognition of"love and commitment": n61
Marriage is, without dispute, one of the most significant forms of personal relationships .... Through the
institution of marriage, individuals can publicly express their love and commitment to each other.
Through this institution, society publicly recognizes expressions of love and commitment between
individuals, granting them respect and legitimacy as a couple. This public recognition and sanction of
marital relationships reflect society's approbation of the personal hopes, desires and aspirations that
underlie loving, committed conjugal relationships. This can only enhance an individual's sense of
self-worth and dignity. n62
With this, the Court subscribes to what has been variously termed the "romantic love" view of marriage, n63 the
"conjugal myth," n64 and, more recently, "the postrnodem model of marriage." n65 Whatever it is called, the effect is
plain: marriage no longer has anything at all to do with the bestowal of a status which makes possible relations which,
in the absence of the status, are unavailable in our lifeworld. Instead, marriage now has to do with the recognition and
endorsement of pre-existing dispositions and relations. So viewed, marriage adds nothing to human possibility and, is as
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a result, de-institutionalized.
As do non-judicial proponents, n66 the Halpern Court seeks to redefine marriage as a committed relationship in
order to make possible their ambition of extending marriage to [*628] same-sex persons. Indeed, the similarities
between the two, between the commentators and the judges, is nothing less than remarkable. Here is how Andrew
Sullivan puts the case:
Marriage is not simply a private contract; it is a social and public recognition of a private commitment.
As such, it is the highest public recognition of personal integrity. Denying it to homosexuals is the most
public affront possible to their public equality ... Until gay marriage is legalized, this fundamental
element of personal dignity will be denied a whole segment of humanity. No other change can achieve it.
n67
The Court in Halpern very nearly parses this. Straightaway, we are told that "this case is ultimately about the
recognition and protection of human dignity and equality in the context of the social structures available to conjugal
couples in Canada." n68 Elsewhere, we are informed that "whether same-sex couples can marry is a matter of capacity"
n69 and that, citing the Supreme Court of Canada decision in Law, n70 "human dignity is harmed by unfair treatment
premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits." n71 The
Court in this fashion leads us to what, given not only these premises but, critically, the banishment of status from
marriage by definitional fiat, is then inevitable: that "the common law requirement that marriage be between persons of
the opposite sex does not accord with the needs, capacities and circumstances of same-sex couples"; n72 that "the
dignity of persons in same-sex relationships is violated by the exclusion of same-sex couples from the institution of
marriage" n73 (because "exclusion perpetuates the view that same-sex relationships are less worthy of recognition than
opposite-sex relationships" n74); and that "the common law definition of marriage ... violates s. 15(1) of the Charter."
n75
All of this, the judges' reasoning no less than the academic argument, is only made possible by ignoring, by
defining away, the meaning of marriage at law and as cultural practice, namely, that marriage is a practice that creates a
specific, sexed form oflife, the form oflife that subsists in the relationship, not otherwise extant, between husband and
wife. Only once this understanding is banished does the inability of homosexuals to marry one another --like everyone
else they can marry persons of the opposite sex-- become a matter that goes to equality and not to (in)capacity. Only
thus, by elevating incapacity to inequality through editing out status, culturally and legally, does the entire structure of
this judgment and of the gay marriage movement more generally have any coherence. But, as I shall argue in Part IV,
the price of this coherence and structure is nothing less than the abandonment of the very principles that ought to govern
the conduct of a liberal, democratic state.
[*629] III. MISDIRECTIONS
We come now to the two previously mentioned canards that so very often misdirect discussion of same-sex
marriage. Discrediting these two is important not just because they cloud debate, but also because of the manner in
which they breed this confusion. Each calls upon certain of our settled moral/political convictions. Typically, the
argument from parliamentary competence calls upon our democratic sensibilities in order to enlist our opposition to
same-sex marriage, whereas the argument from racial analogy calls upon our commitment to equality (and our
abhorrence of racism) to enlist our allegiance to same-sex marriage. However, because neither argument is coherent, in
the final analysis, each is a manipulation that deserves our disdain rather than our assent.
A. ARGUMENT FOR THE COMPETENCE OF THE LEGISLATIVE BRANCH
This argument, rehearsed in the print media time and again since Halpern was handed down, n76 goes something
like this: there are certain matters, sometimes referred to as "moral issues," other times as "policy issues," that in a
democratic state fall not to the courts, but to the people's elected representatives in Parliament. As applied to the
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same-sex marriage issue, the argument instructs that any change to the legal definition of marriage is a matter
exclusively for the legislative branch, where after motion and debate the question will be answered in whichever fashion
and to whatever ends the majority determines.
The political metaphysics of this argument must reside in some understanding of parliamentary sovereignty. But in
that event it must be said that the best view of that matter lends the argument no support whatsoever. Dicey's
parliamentary sovereignty does not afford parliament license to do anything it wishes on any matter. n77 Though it is
his understanding that parliament has "the right to make or unmake any law whatever," n78 he cabins that authority by
defining law as "any rule which will be enforced by the Courts." n79 This caveat ties sovereignty to Dicey's conception
of the Rule of Law, which has as its aim "the absence of arbitrary power" by all branches of the state n80 and is
characterized by what Dicey terms "the predominance of the legal spirit" n81 --the disposition of public institutions to
acknowledge the limits of their authority.
[*630] The argument from competence misses all of this, and proceeds instead from the view that any and all
aspects of human life are properly and possibly prey to the aims and manipulations oflegislation. The implications of
such a view are invidious indeed. For then the Rule of Law becomes in its entirety rule by law, and nothing is beyond
law's reach. Happily, such is not the instruction of our law. n82 Our law is a tradition and site of contestation about the
limits of the authority of the state, in all of its branches, n83 to regulate our lives-- our actions, our ambitions and
preferences, and our associations. To the extent that the argument from sovereignty recoils from this understanding, its
instruction is beyond any proper point, and it ought not therefore be accorded any purchase in our reflections about
same-sex marriage or, for that matter, any other issue towards which it is directed.
B. ARGUMENT FROM THE RACIAL ANALOGY
This analogy suggests that barring same-sex marriage is like barring interracial marriage. The literature n84
devoted to it uses the U.S. Supreme Court decision in Loving v. Virginia, n85 striking down anti-miscegenation laws
then in force in 16 states as violative of equal protection and due process guarantees, n86 as support for the view that
arguments against same-sex marriage suffer from the same sectarian reasoning offered in, and rejected by, the Court
[*631] in Loving, n87 and are therefore, equally violative of equality and due process. n88 Of course, if the only
arguments against same-sex marriage are sectarian, then opposing the legalization of same-sex marriage is invidious in
a fashion no different from supporting anti-miscegenation laws: each is a fundamental assault on equality, and neither
has any rhyme or reason beyond sectarian commitments which would foist one's own diseased, personal morality on the
whole of the polity.
Now, disposing of this argument is especially important in the present Canadian debate because the Halpern Court
appears to endorse the analogy:
If marriage were defined as "a union between one man and one woman ofthe Protestant faith", surely the
definition would be drawing a formal distinction between Protestants and all other persons. Persons of
other religions and persons with no religious affiliation would be excluded. Similarly, if marriage were
defined as "a union between two white persons", there would be a distinction between white persons and
all other racial groups. In this respect, an analogy can be made to the anti-miscegenation laws that were
declared unconstitutional in Loving v. Virginia ... because they distinguished on racial grounds. n89
Happily, disposal is not difficult because there exists a reason of principle n90 on which to distinguish
classifications based on religion and race from classifications based on sex, at least so far as the capacity to marry is
concerned.
Directly put, the reason is this: while race and religion are irrelevant to one's capacity to occupy the offices
"husband" and "wife," sex is not For those offices, as constituted by cultural practice and recognized at law, are
oppositely sexed offices. n91 If this reason is persuasive, then the racial analogy cannot secure the claim of inequality
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against the law's continuing to recognize the opposite sex nature of the statuses of husband and wife; and, in that event,
what Eskridge elsewhere terms "the race card" n92 turns out to be no trump at all. [*632] In my view, it will only
persuade if one is prepared, as was the Court in Baehr, n93 to declare diseased and sectarian any argument from legal
history and cultural tradition and practice. Yet, such a declaration is costly since it raises and depends upon a
declaration concerning the sovereignty of the state over the whole of social life, its history, and the future of its
practices. Part IV of this comment is devoted to persuading that such a declaration is not one that any branch of a liberal
state --legislative, executive, and judicial alike-- can properly make.
IV. THE AFFIRMATION OF ORDINARY LIFE
Recall the comment from Eskridge: "the more difficult claim to refute is the normative one, that marriage ought to
be different-sex by definition." n94 My purpose in this comment has been to make just such a normative argument
against the recognition of same-sex unions as marriage: I have aimed to convince that marriage is indeed different-sex,
and that a liberal state has no authority over marriage so understood. Parts II and III were devoted to the first purpose --
to showing that the cultural practice we know as marriage, and the law of marriage which recognizes that practice,
disclose marriage to be opposite-sex. This part is devoted to the second purpose-- the limits of state authority. My first
concern will be to articulate the relationship that ought properly to obtain between a liberal state and the institutions,
particularly marriage, that together comprise what is known to liberal theory as civil society and to those of us who live
in liberal society as ordinary life. I shall then assess [*633] the performance of the Canadian state in Halpern against
that articulation with a view to condemning its performance as an illegitimate exercise in social engineering. n95
A. CIVIL SOCIETY
John Rawls speaks of "the 'background culture' of civil society": "this is the culture of the social, not of the
political. It is the culture of daily life, of its many associations: churches and universities, learned and scientific
societies, and clubs and teams, to mention a few." n96 This understanding of the place of ordinary life as beyond
politics - as a realm of self-ordering social activity and formation independent of control by the state n97 -- is ancient,
n98 [*634] continues to inform debate about the limits of state power, n99 and more to the present point, informs at its
very core what is known in the Anglo-American tradition as the Rule of Law.
Philosophical and political liberalism descends from two commitments, one to moral equality (that each of us is
equal despite the manifold differences between us and that we therefore deserve to be treated equally), nl 00 and
another to "the priority of social life over politics." n 101 These two commitments are related at several levels of
understanding, most importantly in the following way: that political equality will be preserved only if the power of the
state to act against equality is constrained by institutional arrangements. Constraint of that sort requires, inter alia, the
preservation of social freedom as a locus or site from which the denizens of the state, in their capacity as free persons
and not as citizens, might oppose and criticize political power. n102 The Rule of Law is the institutional architecture of
the liberal state, just because it devotes the state itselfto the constraint of power, especially its own. That is, the Rule of
Law legitimates state power to the extent that it is exercised in service to equality and to equality's precondition:
freedom in the social realm. Implicit, therefore, in the Rule of Law are norms concerning the proper relationship of the
liberal state to the institutions and practices of social life.
B. LIBERAL STATE AND CIVIL SOCIETY
Catharine A. MacKinnon wisely contends that jurisprudence, which is to say disciplined reflection about law, is
finally about the "relation between law and life." n 103 Reflection about law must be about this matter because, as
constituted by the Rule of Law, law is the practice and tradition whose point it is to establish the limits of the state's
authority over the lives led by those subject to its rule. But law is not neutral in this regard. It proceeds rather with the
attitude, again bred of the Rule of Law, that the law's claims on lives is limited because the liberal state, whose laws
they are, is itself a limited state. The limitations that define the liberal state subsist in the nature of its relationship with
individual lives and the social forms through which those lives are lived. Shortly put, the liberal state is a state that
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defers to the self-ordering of individuals and of society.
[*635] As regards individuals, the law understands that only when an individual's conduct causes real harm to
others has the state warrant to claim authority over that life. n I 04 As regards the institutions and practices of civil
society, the situation is more complex. With a singular and rare exception, a liberal state is required, at the cost of its
authority, to exhibit deference to the authority of civic institutions, traditions, and practices. Through this deference, the
liberal state at once affirms its own limitations and the ordinary lives of those who, in their capacity as citizens, are its
subjects. Deference to, and affirmation of, ordinary life may take either of two forms: the state may simply leave alone
the institutions, practices, and traditions which together constitute the lifeworld of its subjects, or it may instead seek to
support them by enacting laws that recognize the importance of their contribution to the life of political community. In
the latter case, recognition cannot include reformation, nor must it be confused with constitution. Instead, reformation
falls properly to the institutions and practices of civil society themselves. If over time, institutions and practices do
reconstitute themselves, only then may the state incorporate such changes into those laws of recognition, if any, that
apply to them.
The task of social reconstruction, as indicated, is only very rarely the state's. A liberal state may only exceed
recognition in its relations with standing social practices, institutions, and traditions when the continuance of a
particular institution, practice, or tradition compromises the liberal credentials of the state and so its continuance as a
liberal state. This will be the case only where an institution, tradition, or practice is perniciously opposed to moral
equality, that core value of liberal politics. In such a case-- and antebellum slavery in America is the paradigmatic
instance -- a liberal state has a positive obligation not to reform, but to abolish the institution. But this case will be
exceptional, simply because in mature political communities (and here one excludes antebellum America, its
accomplishments notwithstanding), social life itself will exhibit liberal values. nl05 Under no view of the matter would
the practices of an institution such as (traditional) marriage qualify the state, through any of its branches, to act beyond
recognition. Indeed, according to most views, marriage and family as traditionally practised are essential to the
flourishing and continuance ofliberal political culture. nl06
C. EXCESS: SOCIAL ENGINEERING
When a state exceeds the boundaries that define its proper relationship to civil society, when it forsakes affirmation
and instead takes the institutions and practices of civil society as objects subject to its legislative or curial surveillance
or reform, it may be said to have involved itself in social engineering. Before addressing the performance of the
Canadian state in Halpern, it is important to be precise as regards the methodology by which a professedly liberal state
may, by reason of perfectionist zeal or expansionist ambition, abandon its liberal credentials in this way.
[*636] Like Hayek n107 and Burke, nl08 one may believe that social institutions are more the consequence of
gradual growth and adaptation than of any deliberate design or plan. Alternatively, one may believe that social
institutions are properly the object of planning and redesign to make them better achieve whatever ends they are thought
to serve. In the latter case, one believes in the propriety and possibility of social engineering. nl 09
Social engineers do not affirm ordinary life. They deny it. For them, ordinary life is a problem in need of a solution,
and they are therefore moved to re-design extant social practices and to erect new ones. In all of this, the lived lives of
"human beings serve as raw material." nl!O The twentieth century will be remembered as the age of social engineering
par excellence, both because the dreams of re-engineering the social -- fascist, communist, nazi dreams especially but
not only included -- were then so grand and utopian and so full of conviction, and because no amount of ordinary
human suffering was thought too high a price to pay for making the world whole again. nil!
I do not wish to draw a comparison between these projects and the many projects of social engineering now afoot in
liberal states, including the one being pursued by the Canadian state in Halpern. I do, however, wish to refer very
briefly to that history as a way of defining the methodology of states intent on engineering the social. I shall then offer a
characterization of projects of that sort in liberal states, before proceeding to a consideration of the performance in
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Halpern.
The lawyers, doctors, academics, and ideologues of Hitlerite Germany had a term of political art for it,
Gleichschaltung: in order to achieve "a global remodelling of society in accordance with racial criteria," n 112 it would
be necessary, indeed essential, to "co-ordinate" each and every social institution, practice, and tradition with those
norms. nll3 And therein lies [*637] the twentieth century's lesson for us in these matters: when states seek to
engineer ordinary life, they necessarily do so by co-ordinating the institutions and practices of ordinary life to
state-articulated and state-enforced norms.
Contemporary liberal states of course involve themselves in a host of engineering projects that range in their focus
from individual health to common civility. nll4 However, the most important ones-- those that qualify as instances of
what I shall here term "the constitutionalism of the social" -- deploy the methodology of social engineering precisely
and depend upon it entirely. By "constitutionalism of the social," I mean to refer to the extension of judicial review from
its proper focus on legislation to a progressivist concern with social conditions. Equality is the focus of this concern and
the medium of this extension. Indeed, "dealing with the effects of inequality has become a euphemism for current
liberalism's assault on what the old liberals called civil society." nilS The practice is not complicated: the state
articulates norms of equality and then imposes those norms, either legislatively or curially, on social life. It requires
only the slightest pretext to do so. And because there is indeed much "public acceptance of these assaults," there is no
shortage of interest groups to urge legislators on or to present themselves to judges as litigants. n 116 That this at once
renders persons clients of the state and subjects the whole of social life to potential state surveillance and management
are matters to which I will return in the conclusion. I want first, however, to assess the Halpern decision as an instance
of this phenomenon.
D. THE CANADIAN STATE IN HALPERN
As part of its submissions on whether the opposite-sex "requirement" satisfied the Oakes n 117 test, the Attorney
General of Canada submitted (as redacted by the Court) that "changing the definition of marriage to incorporate
same-sex couples would profoundly change the very essence of a fundamental societal institution." n 118 In rejecting
this submission -- "we reject the AGC's submission as speculative" n 119 -- the Court reveals much about its
understanding of its mandate. For with this, the Court is not contesting that it is changing a "fundamental societal
institution"; rather, it is dissenting from the Attorney General's assessment of the significance or, if you will, the
quantum, of the change. Which is to say, the Court simply presumes that it has authority over the social.
Evidence of this understanding is on display throughout the judgment. For instance, in framing the case -- "this case
is ultimately about the recognition and protection of human [*638] dignity and equality in the context of the social
structures available to conjugal couples in Canada" n 120 -- the Court straightaway asserts its authority over the social.
So too in defining marriage: since marriage is the institution through which "society publicly recognizes expressions of
love and commitment," n 121 and since the Court presumes to judge the qualities and terms and conditions of that
recognition, it per force takes the social to be subordinate to its own authority. Again, in summing up, at the conclusion
of its s. 15( I) deliberation, the Court opines that "in this case, same-sex couples are excluded from a fundamental
societal institution-- marriage. The societal significance of marriage ... cannot be overlooked. Indeed, all of the parties
are in agreement that marriage is an important and fundamental institution in Canadian society. " nl22 I shall not go on.
Suffice it to say that Halpern proceeds from, and its result is only intelligible in terms of, the proposition that the
judicial branch of the Canadian state has legitimate authority over the institutions and practices of civil society.
On this understanding, it becomes the Court's aim to co-ordinate the institution of marriage to the norms of equality
articulated by the judicial branch of the Canadian state since 1982. This it does with dispatch: first, this "fundamental
societal institution" is found to offend those equality norms; nl23 next, that offense is found to be unacceptable in,
because it is unreasonable to, a society with those norms; n 124 and then-- in the moment of climax in the coordination
ritual-- the institution is changed to fit state norms. nl25
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But that does not conclude the performance. The Halpern Court also broadcasts that any social institutions might
properly be subject to the curial gaze of the Canadian state. I refer to its espousing of what it terms "this country's
jurisprudence of progressive constitutional interpretation." n 126 Under this view of constitutionalism, the reach and
appetite of judicial review is potentially endless and by definition always unknowable since "activities ... not previously
... included" just might be included in some future case. nl27
We witness in Halpern a nearly-perfect instance of social engineering: the motivation (equality), the practice
(coordination), and the ambition (limitless) are each paradigmatic. And, with this, we witness as well the Canadian state
abandoning its proper place as a liberal governor. In the place of affirmation, it offers assessment and correction. And,
in so doing, it is at once denying the value of social life and history and proclaiming, and then imposing, its own view of
the lifeworld on those subject to its power.
V. CONCLUSION
As indicated previously, I wish to conclude this piece with certain brief comments on what Halpern signals for the
practices of both marriage and liberal governance in Canada; on the attitude of the Court in Halpern (as perhaps indirect
evidence of the latter); and on what in [*639] my view would constitute, under certain conditions, a proper response to
homosexual unions by a liberal state.
A. MARRIAGE AND GOVERNANCE
Contrary to what is apparently the Court's own understanding, nl28 the result in Halpern is no mere redefinition.
Macintyre counsels "that practices always have histories and that at any given moment what a practice is depends on a
mode of understanding it which has been transmitted often through many generations"; and he concludes that sustaining
practices means "sustaining relationships with the past." nl29 By eliminating status from marriage and by reconceiving
it as simply the recognition of an already extant relationship, the Halpern Court has broken the connection of marriage
to its past. I have already argued that an institution at once unmade and remade in this fashion is effectively abolished,
n 130 and that the new marriage on offer from the state diminishes the lifeworld because it makes of marriage a nullity
morally, a meaningless event that offers us no human relationship that would not be there without it. I want now to
suggest that the state's chiselling away at marriage and the family has, with Halpern, become conquest.
It is everywhere accepted n 131 that, beginning in the nineteenth century, the liberal state has progressively
intervened n132 in marriage and the family. What is contested is the culminative significance of these legislative and
curial endeavours. nl33 I cannot enter that debate here. Instead, I wish briefly to argue that, however the history of
family law is construed (and I suspect that no over-arching narrative of the matter will be convincing), the tum in
Halpern, wherever it occurs, signals the complete and final politicization of marriage.
Halpern makes of marriage a legal form. That is, by putting aside both the history of the institution and its place
and meaning in ordinary moral and social commerce, the Court [*640] reduces marriage entirely to law. With this,
marriage is not only fully politicized, but, in a very real sense, becomes territory conquered by state law. n134 This
conquest comes at a very great cost, both for liberty and for the plurality that is its test and expression.
These consequences do not rely on the view that the colonization of marriage is the ultimate bite out of civil
society, though it is indeed a bite so intimate that the whole of civil society might now be entertained-- by ideologues,
legislators, judges, and citizens alike -- as properly on the menu of state surveillance and management. Rather, they
attach to and flow from the nature oflegal form itself. n135 For much follows from the claim that the law is
constitutive of any set of social relations. First, the statuses of which those relations are composed become dependent
upon the sufferance of the state. Second, and more importantly, the persons who occupy those positions become not just
clients of the state, but the bearers and reproducers of state norms as well. With all ofthis, the state becomes the arbiter
of the very being of its subjects and its subjects become for it (and, to the extent that they consciously submit their
social status to the state, for themselves as well) the media-- "the raw material" n136 --for the institution of state
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norms.
Liberty and difference cannot long survive this view of law and life. Given the argument so far, the case for the
former should be clear: the politicization of social life in this juridified fashion enlarges the state's power to discipline
the lives and lifeworld of persons and so, without more, diminishes liberty. nl37 The argument for the second rests on
a consequence certain to the enlargement of state power in this way, namely that state norms for the performance of the
social have a homogenizing and levelling effect. This is inevitably so, for once the lifeworld is orchestrated by the state,
certain performances become standard and other performances deviant and disvalued.
[*641] B. THE NARRATIVE TONE AND TEMPER OF HALPERN
Halpern will stand in legal history, along with its like-minded fellows, for the pronouncement that a fundamental
social institution, as practiced from time out of memory, is and always has been unjust. So startling and so grand a
proclamation would otherwise seem to warrant some humility, some concession of understanding and regret to those
men and women who have laboured under the opposite view. One finds none of this in the judgment. On the contrary,
the structure is summary and formulaic, and the tone intemperate and, indeed, often insolent. nl38 I want to suggest
that none of this is accidental, and that a narrative attitude and strategy of this sort inheres, at least as a risk, in the very
practice of the state's claiming sovereignty over social life.
I have argued that the constitutionalism of the social is necessarily monochromatic and homogenizing. It is also
inherently monologic. This is so in equal measure because state norms, including equality in particular, are understood
by the interventionist state to be beyond reproach, and because, so understood, those norms become cause for the
activist motive sincerely held by many state actors of redeeming any and every part of life somehow tainted by contrary
norms. It is just this assumption and this motive that makes according respect and honour to contrary views so difficult.
Because the state is right and because it wills only well on its subjects, its discourse is one that tends always to take
other views merely as grist for its self-validation.
C. RECOGNIZING SAME-SEX UNIONS
I come then to the matter of how a liberal state ought properly to respond to same-sex unions. Now, it could
properly-- as it could with marriage-- simply remain silent on the matter. For reasons already recounted, this response
is in my view the better one, at least for those who value the long-fought-for, and finally accomplished, independence of
homosexuality from law and the contributions of a free gay and lesbian culture to the lifeworld. nl39 But, assuming for
the sake of argument that the lesbian and gay rights movement-- focused as it is on state recognition nl40 --will lead
the state to wish to do something, I want to argue that the state may properly pursue the alternate course of recognition
only if two conditions are met. This argument proceeds on the understanding that recognition would take the form of
civil union or registered domestic partnership legislation.
The conditions are these: first, that same-sex union has established itself as a social institution, that is, that it is
widely practiced among, and endorsed by, members of the gay and lesbian community; and second, that recognition
does not reduce to, or otherwise [*642] implicate, social engineering. The first condition is meant to respect the
integrity of the homosexual community as a whole, especially given the law's dishonourable history in that regard. The
second is meant to prohibit the state from rejoining that history under the guise of benevolence.
In my view, there are real questions concerning whether either of these conditions is met. So far as the first is
concerned, gay and lesbian literature is replete with contestations over the desirability of same-sex marriage. nl41 And
so far as the second is concerned, leading proponents argue that same-sex marriage is desirable because necessary to
change gay and lesbian culture. nl42 Because these questions remain-- and because it does not fall to the liberal state
to domesticate transgressive practices n 143 nor to impose a social practice on any community -- the propriety of
recognition legislation is itself seriously at question.
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41 Alberta L. Rev. 619, *642
Legal Topics:
For related research and practice materials, see the following legal topics:
Family LawCohabitationDomestic PartnersDuties & RightsFamily LawMarriageNature ofMarriageFamily
LawMarriageValidityGeneral Overview
FOOTNOTES:
nl Ronald Dworkin, Law's Empire (Cambridge, MA: Belknap Press, 1986) at 413.
Page 13
n2 Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago: University of
Chicago Press, 1999) at 46.
n3 Hannah Arendt, The Human Condition (New York: Doubleday Anchor, 1959) at 29.
n4 (2003), 225 D.L.R. (4th) 529 (Ont. C.A.) [Halpern]. This route was also travelled by the British
Columbia Court of Appeal in EGALE Canada v. Canada (A. G.) (2003), 255 D.L.R. (4th) 472 [EGALE] and by
the Quebec Superior Court in Hendricks c. Quebec (P.G.), (2003), J.E. 2003-466 [Hendricks] (presently before
the Quebec Court of Appeal).
n5 Halpern, ibid at paras. I, 37.
n6 Ibid at paras. 2, 69.
n7 Part I ofthe Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 [Charter].
n8 Ibid at para. 7.
n9 Ibid at para. 60.
nlO Ibid. at para. 78.
nil Ibid at para. 94: "Denying same-sex couples the right to marry perpetuates the contrary view, namely,
that same-sex couples are not capable of forming loving and lasting relationships, and thus same-sex
relationships are not worthy of the same respect and recognition as opposite-sex relationships."
n 12 Ibid at paras. 79.
n13 Ibid. at para. 80, citing Law v. Canada (Minister of Employment and Immigration), [ 1999] I S.C.R. 497
at 535.
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41 Alberta L. Rev. 619, *642
nl4 Ibid. at para. 148. The Court must here have meant natural persons, since otherwise it would be
condoning the marriage of corporations and other unnatural legal persons.
Page 14
nl5 And unusual it is: prior to Halpern, only two countries-- Belgium and the Netherlands-- recognized
same-sex unions as marriage (though both, now unlike Canada, have residency requirements); and the
Netherlands alone accorded same-sex marriage the same rights and obligations accorded to opposite-sex
marriage. A number of European countries (Denmark, Norway, Sweden, Iceland, Finland, Hungary, France,
Germany, and Portugal), several American states (Vermont, California, and Hawaii), and four Canadian
provinces (Nova Scotia, Quebec, Saskatchewan and Alberta) have enacted laws that, in different ways, permit
same-sex couples to enter into registered partnerships or civil unions, but none of these accords all of the rights
accorded to marriage. See Katharina Boele-Woelki & Angelike Fuchs, eds., Legal Recognition of Same-Sex
Couples in Europe (Antwerp: Intersentia, 2003); Robert Wintemute & Mads Andenaes, eds., Legal Recognition
of Same-Sex Partnerships: A Study of National, European and International Law (Oxford: Hart, 2001);
"Developments in the Law-- The Law of Marriage and Family" (2003) 116 Harvard L. Rev. 1996 at 2004-27;
online: Lamda Legal <www.lambdalegal.org/cgi-binliowa/documents/record?=403>; and online: Rutgers
School of Law: Pathfinder Series <www.rci.rutgers.edu/ axellute/ssm.htm>.
nl6 The outcomes in Halpern, EGALE, and Hendricks, supra note 4 have a specific jurisprudential
etiology, namely, the Supreme Court of Canada decisions in Egan v. Canada, [ 1995] 2 S.C.R. 513, Vriend v.
Alberta, [1998] I S.C.R. 493, and M v. H., [1999] 2 S.C.R. 3.
nl7 Supra note 4.
nl8 Halpern, supra note 4 at para. 110 (see also paras. 35-37).
n19 Henry de Bracton, On the Laws and Customs of England, (circa 1236) trans. by Samuel E. Thome
(Cambridge, MA: Belknap Press, 1968-1977).
n20 Sir John Fortescue, On the Laws and Governance of England, (circa 1470) ed. by Shelley Lockwood
(New York: Cambridge University Press, 1997).
n21 Sir Edward Coke, Institutes of the Laws of England, (1628, 1642, 1644) (London: W. Clarke & Sons,
1817).
n22 Sir William Blackstone, Commentaries on the Laws of England, (1765-1769) (Chicago: University of
Chicago Press, 1979).
n23 These and other terms appear here in quotations as a means of emphasizing their importance to the
general discourse on same-sex unions.
n24 On the history of marriage as it relates to the attempts, successively, of the church and state somehow to
regulate the matter, see Lawrence Stone, The Family, Sex and Marriage in England I 500-IBOO, abr. ed.
(London: Penguin, 1979), esp. 29-34; John R. Gillis, For Better, For Worse: British Marriages I600 to the
Present (Oxford: Oxford University Press, 1985), esp. 17-21, 88-89; Michael M. Sheehan, Marriage, Family,
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41 Alberta L. Rev. 619, *642
and Law in Medieval Europe: Collected Studies (Toronto: University of Toronto Press, 1996); Diana Leonard
Barker, "The Regulation of Marriage: Repressive Benevolence" in Gary Littlejohn eta/., eds., Power and the
State (London: Croom Helm, 1978) 239; Mary Lyndon Shanley, "Review Essay: The History of the Family in
Modem England" (1979), 4 Signs 740; and Frederick Pollock & Frederic William Maitland, The History of
English Law Before the Time of Edward I, Vol. VII (London: Cambridge University Press, 1968) Chp. VII.
Since it is sometimes thought that the Church's involvement in marriage and the sacramental status of marriage
raise issues relevant to the same-sex marriage debate, it is perhaps worth noting that this involvement and this
status are, no less than the state, also relative latecomers to marriage. "It was not until the thirteenth century that
the Church at last managed to take control of marriage law"; marriage was not "elevated to the position of a
sacrament untill439"; and "it was only in 1563, after the Reformation, that the Catholic Church first required
the presence of a priest for a valid and binding marriage" (Stone, ibid. at 30). See also Harold J. Berman, Law
and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press,
1983) c. 6.
n25 With, and of course in response to, the emergence of the same-sex marriage issue. In Canada, this
response took shape in Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and
obligations [now: Modernization of Benefits and Obligations Act, S.C. 2000, c. l2] s. 1.1 of which reads as
follows: "for greater certainty, the amendments made by this Act do not affect the meaning of the word
'marriage,' that is, the lawful union of one man and one woman to the exclusion of all others." In America, the
response, beginning in 1996 with the federal Defense of Marriage Act [II 0 Stat. 2419 ( 1996)] and subsequently
in the majority of states, has taken the form of separate legislation to protect the heterosexual nature of marriage.
For instance, s. 3(a)(7) of that Act reads:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation
of the various administrative bureaus and agencies of the United States, the word "marriage"
means only a legal union between one man and one woman as husband and wife, and the word
"spouse" refers only to a person ofthe opposite sex who is a husband or a wife.
Two things are noteworthy about these initiatives: first , that their necessity is only intelligible in terms of a legal
history that simply assumed the common social meaning of marriage; and second, that each aims not to
prescribe a new meaning, but to preserve that ancient one. Concerning the Canadian initiative, it must now be
added that, despite the unity of Parliament and Senate on the matter, the federal Executive has now moved, in
response to Halpern --through the reference to the Supreme Court of its Proposal for an Act respecting certain
aspects of legal capacity for marriage for civil purposes -- to define marriage as "the lawful union of two
persons to the exclusion of all others." See online: Department of Justice, Canada
<www.canada.justice.gc.ca/en/news/nr/2003/doc_30946.html>.
n26 (1866), LR I P&D 130 [Hyde].
n27 More specifically, by s. 47 of The Matrimonial Causes Act 1973 (U.K.), 1973, c. 18.
n28 Halpern, supra note 4 at para. I.
n29 Hyde, supra note 26 at 133 [emphasis added].
n30 See e.g. Julie C. Lloyd, "Defining Marriage, Step One: EGALE v. Canada" (2002) 39 Alta. L. Rev. 963
at 968. Remarkably, given that theirs was a Charter complaint and required some rule which could be made to
pass constitutional muster, the first submission of the plaintiffs in Halpern was that "there is no common law bar
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41 Alberta L. Rev. 619, *642
to same-sex marriages" because, inter alia, the Hyde definition is obiter in so far as it applies to sexuality
(Halpern, supra note 4 at para. 35). For the Halpern Court's not-very-convincing rejection of these arguments,
see ibid. at para. 37.
n31 Hyde, supra note 26 at 133.
n32 Ibid. That the Court uses the word "Christendom" for this is of no consequence.
n33 Ibid.
n34 To sample the ongoing debate concerning whether marriage and family exist independently from law,
see Laurence D. Houlgate, "Must the Personal be Political? Family Law and the Concept of Family" (1998) 12
Int'l J.L. Pol'y & Fam. 107; Teresa Stanton Collett, "Recognizing Same-Sex Marriage: Asking for the
Impossible?" (1998) 47 Catholic U.L. Rev. 1245; and David Orgon Coolidge, "Same-Sex Marriage? Baehr v.
Miike and the Meaning of Marriage" (1997) 38 S. Texas L. Rev. 1.
n35 Halpern, supra note 4 at para. 110.
n36 Ibid. at para. 66.
n37 Ibid. at para 53.
n38 Ibid.
n39 Ibid. at para 117.
n40 Ibid. at para 46.
n41 Ibid. at para. 68.
n42 Ibid. at para. 69.
n43 Ibid. at para 53
n44 Dworkin, supra note 1 at 46-48,50-51,63-68,70-73.
n45 Alasdair Macintyre, After Virtue: A Study in Moral Theory (Notre Dame: University of Notre Dame
Press, 1984) c. 15, esp. 221-23.
n46 Dworkin, supra note 1 at 63.
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41 Alberta L. Rev. 619, *642
n47 For a summary of the common law reception of the status of"husband" and "wife," see Pollock &
Maitland, supra note 24 at 399-436.
n48 George Orwell, "Politics and the English Language" in George Orwell, Collected Essays, 2d ed.
(London: Seeker & Warburg, 1961) 353.
n49 Supra note 40 and accompanying text.
n50 Some proponents of same-sex marriage claim that history, especially ancient and early European
history, provides evidence ofthe recognition of same-sex unions as marriage that contradicts what I am here
claiming to be both the essence and common understanding of marriage as a social practice. For instance,
William N. Eskridge devotes the second chapter of his widely influential The Case for Same-Sex Marriage:
From Sexual Liberty to Civilized Commitment (New York: Free Press, 1996) to "A History of Same-Sex
Marriage" [Eskridge relies in no mean measure on John Boswell, Same-Sex Unions in Pre-Modern Europe (New
York: Villard Books, 1994)]. Though I cannot pursue this claim at any length here, I do think it both inaccurate
historically and inapposite normatively. So far as accuracy is concerned, arguments of the kind marshalled by
Eskridge tend to conflate same-sex unions (the historical reality of which, of course, no one does, or could,
deny) with marriage and, to the extent that they do, they suffer from special pleading. Take, for example, the
following slippery passage:
I shall use the phrase same-sex union to refer to any kind of culturally or legally tolerated
institution whereby individuals of the same sex are bonded together in relationships for reasons of
affinity, economy, or society ... I am not using the term marriage casually. Although some ...
same-sex relationships ... have marriage-like features, I do not always deem them same-sex
marriages. The term is used only when it appears that the same-sex union was treated by
contemporaries and legal authorities as about the same as different-sex marriage and met one or
more of the civilizing functions of marriage, namely, long-term emotional support and bonding
between the couple; economic security and division oflabor in the household; or legitimacy and
support of a family, including children.
(Ibid. at 16-17 [emphasis in original]). What is missing here (and, as we shall see in a moment, in Halpern as
well), is any mention of the opposite-sexed statuses "husband" and "wife," in ancient times as well as now, as
the cultural and legal core of marriage. And it is this elision that makes Eskridge's argument, and others like it, a
special pleading bred of sleight of definitional hand.
More importantly, the argument has no purchase normatively. Remarkably, Eskridge elsewhere (ibid. at 91)
appears to recognize this: "The more difficult claim to refute is the normative one, that marriage ought to be
different-sex by definition." But, in that event, any counter-argument of this normative sort will itself have
purchase only if it confronts, and never if it seeks merely to elide, the opposite-sexed status subjects of marriage,
the "husband" and "wife." Eskridge's own normative argument-- that "the dominant goal of marriage is and
should be unitive, the spiritual and personal union of the committed couple" (which incidentally he marshals
against what he takes --wrongly in my view -- to be the main normative argument on the other side, namely,
that marriage is and ought to be "procreative") -- fails to meet this test since it simply defines away the status
subjects "husband" and "wife."
On homosexuality, law, and marriage in early history, see e.g. Thomas K. Hubbard, ed., Homosexuality in
Greece and Rome: A Source Book of Basic Documents (Berkeley: University of California Press, 2003); Sara
Elise Phang, The Marriage of Roman Soldiers (13 B.C.-A.D. 235): Law and Family in the Imperial Army
(Leiden: Brill, 2001); Judith Evans Grubbs, Law and Family in Late Antiquity: The Emperor Constantine's
Marriage Legislation (Oxford: Clarendon Press, 1995); Wayne R. Dynes & Stephen Donaldson, eds.,
Homosexuality in the Ancient World (New York: Garland, 1992); and Percy Ellwood Corbett, The Roman Law
of Marriage (Oxford: Clarendon Press, 1930).
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41 Alberta L. Rev. 619, *642
nSI Remarkably, in Halpern, the Attorney General of Canada, supra note 4 at paras. 89, 118, 120-23.
n52 Supra note 26.
n53 Ibid. at 133.
n54 Ibid.
nSS Ibid. at 138.
n56 Halpern, supra note 4 at para. 129: "The Couples are not seeking to abolish the institution of marriage;
they are seeking access to it."
n57 Ibid. at para. 2.
n58 Whether this word de-sexes marriage is contestable since the English word "conjugal" seems itself,
both in origin and in usage, to mean the joining of husband and wife (Oxford English Dictionary, 2d ed., s.v.
"conjugal").
n59 Halpern, supra note 4 at para. I (citing to the term's first appearance in the judgment).
n60 Ibid. at para. 36 (citing to the term's first appearance in the judgment).
n61 Ibid. at para. 5.
n62 Ibid.
n63 See Stone, supra note 24 at 189-91.
n64 See Gillis, supra note 24 at 3-5, 313-16.
n65 See Coolidge, supra note 34 at 38-42.
n66 See e.g. Eskridge, supra note 50 at 70-74, 82, 91, 98-104, 111-13, 129, 21 0; Andrew Sullivan, Virtually
Normal: An Argument about Homosexuality (New York: Alfred A. Knopf, 1995) at 179; and Richard D. Mohr,
"The Case for Gay Marriage" (1995), 9 Notre Dame J. L. Ethics & Pub. Pol'y 215 at 226-27.
n67 Sullivan, ibid. at 179, 184.
n68 Halpern, supra note 4 at para. 2.
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41 Alberta L. Rev. 619, *642
n69 Ibid. at para. 41.
n70 Supra note 13 at 530 (per Iacobucci J.).
n71 Halpern, supra note 4 at para. 3 [emphasis added].
n72 Ibid. at para. 95 [emphasis added].
n73 Ibid. at para. I 08.
n74 Ibid. at para. I 07.
n75 Ibid. at para. 108.
n76 See e.g. Gordon Gibson, "I care who writes the nation's laws" National Post (12 June 2003) Al8; David
Warren, "Canada's courts now rule the country" National Post (22 June 2003) Al2; Stephen Harper, "A
dangerous precedent for how Canada is run" National Post (21 July 2003) Al8; and Jeffrey Simpson, "Why
don't we just tum policy over to the courts?" The Globe and Mail (22 July 2003) Al5.
n77 A.V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan,
1915).
n78 Ibid. at 38.
n79 Ibid. This caveat is the linchpin of a proper understanding not only of Dicey's view of parliamentary
sovereignty, but of his view of Anglo-constitutionalism overall which, surely to the dismay of purveyors of the
present argument, he defines as "a judge-made constitution" (though with eminent good sense, he then qualifies:
"and it bears on its face all the features, good and bad, of judge-made law") (ibid. at 192).
n80 Ibid. at 185: "the absence of arbitrary power on part of the Crown, of the executive, and of every other
authority in England."
n81 Ibid. at 191.
n82 As put wonderfully by F.A. von Hayek:
The rule of law is therefore not a rule of law, but a rule concerning what the law ought to be, a
metalegal doctrine or a political ideal. It will be effective only in so far as the legislator feels
bound by it. In a democracy this means that it will not prevail unless it forms part of the moral
tradition of the community, a common ideal shared and unquestioningly accepted by the
majority.
The Constitution of Liberty (Chicago: University of Chicago Press, 1960) at 206.
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41 Alberta L. Rev. 619, *642
n83 Our legal tradition differentiates between the branches in terms of the source and nature oflimited
authority. The judicial branch is constrained by text and tradition. The legislative branch, on the other hand, is
limited initially by tradition alone and only subsequently, at the election of citizens, by judicial review based on
a constitutional instrument such as the Charter or, as in Roncarelli v. Duplessis, [ 1959] S.C.R. 121, on tradition
alone. It is this distinction that gives purchase to Dicey's view of parliamentary sovereignty.
n84 See e.g. David Orgon Coolidge, "Playing the Loving Card: Same-Sex Marriage and the Politics of
Analogy" (1998) 12 BYU J. Pub. L. 201; Robert F. Drinan, "The Loving Decision and the Freedom to Marry"
(1968) 29 Ohio St. L.J. 358; Daniel R. Gordon, "The Ugly Mirror: Bowers, Plessy and the Reemergence of the
Constitutionalism ofSocial Stratification" (1993) 19(1) J. Contemp. L. 21; Andrew Koppelman, "The
Miscegenation Analogy: Sodomy Law as Sex Discrimination" (1988) 98 Yale L.J. 145 and "Same-Sex Marriage
and Public Policy: The Miscegenation Precedents" (1996) 16 Quinnipiac L. Rev. 105; Josephine Ross, "The
Sexualization of Difference: A Comparison of Mixed-Race and Same-Gender Marriage" (2002) 37 Harv.
C.R.-C.L. L. Rev. 255; and Mark Strasser, "Family, Definitions, and the Constitution: On the Miscegenation
Analogy" (1991) 23 Suffolk U.L. Rev. 981. On the anti-miscegenation laws themselves, see Robert J. Sickels,
Race, Marriage and the Law (Albuquerque: University of New Mexico Press, 1972); Rachel F. Moran,
Interracial Intimacy: The Regulation of Race and Romance (Chicago: University of Chicago Press, 200 I); and
Karen M. Woods, "A 'Wicked and Mischievous Connection': The Origins oflndian-White Miscegenation Law"
(1999) 23 Legal Stud. Forum 37.
n85 388 U.S. I (1967).
n86 Citing its earlier judgment in Hirabayashi v. United States, 320 U.S. 81 (1943) at 100, the Court
described the laws, and the sectarian arguments proffered in support of them, as "odious to a free people whose
institutions are founded upon the doctrine of equality" (ibid. at II).
n87 The Court quoted the State of Virginia (ibid. at 3) which offered the following: "Almighty God created
the races white, black, yellow, malay and red, and he placed them on separate continents ... The fact that he
separated the races shows that he did not intend for the races to mix."
n88 Eskridge, for instance, argues that since the Loving Court struck down Virginia's ban on interracial
marriage because the law's classification was premised on an ideology of white supremacy, the courts should
now strike down the ban on same-sex marriage because it is premised on an ideology that is at once sexist and
heterosexist (supra note 50 at 159-61).
n89 Halpern, supra note 4 at para. 70.
n90 Part IV of this comment provides another reason of principle which has the same effect but whose
ambition is greater since it locates the principle in the normative theory of the liberal state.
n91 Richard F. Duncan makes a point somewhat similar to mine:
Because race is irrelevant to what makes a relationship a marriage, it was immoral and
unconstitutional for Virginia to forbid interracial marriages. However, unlike Virginia's racist
restriction on marriage, the dual-gender requirement is based upon the inherent sexual
complementarity of husband and wife.
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41 Alberta L. Rev. 619, *642
See "From Loving to Romer: Homosexual Marriage and Moral Discernment" (1998) 12 BYU J. Pub. L. 239 at
251. See also Lynn D. Wardle, "Legal Claims for Same-Sex Marriage: Efforts to Legitimate a Retreat from
Marriage by Redefining Marriage" ( 1998) 39 S. Tex. L. Rev. 735 at 752-53.
n92 William N. Eskridge Jr. & Sheila Rose Foster, "Remark: Discussion of Same-Sex Marriage" (1998) 7
Temp. Pol. & Civ. Rts. L. Rev. 329 at 333.
n93 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). In Baehr, the Hawaii Supreme Court held that denying
marriage licenses to same-sex couples is unconstitutional unless the state can show a compelling reason to do so.
In rejecting Singer v. Hara, 522 P.2d 1187 (Wash. Wn. App.), review denied, 84 2d 1008 (1974), in which the
Washington Court of Appeal held that denial of a marriage license to a same-sex couple did not offend the state
constitution's prohibition against sex discrimination because they "were not denied a marriage license because of
their sex," but "because of the nature of marriage itself' (ibid. at 1196), the Baehr Court declared such reasoning
as "exercise in tortured and conclusory sophistry" (Baehr, ibid. at 63). The Baehr Court then went on to dismiss
the reasoning in Jones v. Hallahan, 501 S.W.2d 588 (1973), [in which the Court of Appeals of Kentucky held
that persons ofthe same sex cannot marry because "marriage has always been considered as the union of a man
and a woman" (ibid. at 589)] in a fashion that conflated the racist/sectarian argument in Loving with the
argument from cultural practice in Jones:
The facts in Loving and the respective reasoning of the Virginia courts, on the one hand, and the
United States Supreme Court, on the other, both discredit the reasoning of Jones and unmask the
tautological and circular nature of [the] argument that ... same sex marriage is an innate
impossibility. Analogously ... the Virginia courts declared that interracial marriage simply could
not exist because the Deity had deemed such a union intrinsically unnatural, and, in effect,
because it had theretofore never been the "custom" of the state to recognize mixed marriages,
marriage "always" having been construed to presuppose a different configuration. With all due
respect to the Virginia courts of a bygone era, we do not believe that trial judges are the ultimate
authorities on the subject of Divine Will, and, as Loving amply demonstrates, constitutional law
may mandate, like it or not, that customs change with an evolving social order (Baehr, ibid. at
65).
The issue of compelling state interest was resolved in Baehr v. Miike, No. 91-1394-05, 1996 WL 694235, in
which the First Circuit Court of Hawaii held that the sex-based classification in the Hawaii marriage statute was
unconstitutional and enjoined the state from denying a marriage license solely because the applicants were of the
same sex. This decision was subsequently reversed by the Hawaii Supreme Court, without opinion, after the
passage (ratified 3 November, 1998) of the following amendment to the Constitution of the State of Hawaii:
"The legislature shall have the power to reserve marriage to opposite-sex couples," 950 P.2d 1234 ( 1997).
n94 Eskridge, supra note 50 at 91 .
n95 Due to the constraints placed on this comment, I can here offer only a sketch of these arguments. I
intend to pursue these matters at greater length in an essay entitled "Against Same-Sex Marriage: Civil Society,
Social Engineering, and the Limits of Liberal Law" [forthcoming].
n96 John Rawls, Political Liberalism (New York: Columbia University Press, 1993) at 14; see also 382-83.
Though Rawls does not mention them-- and though the exact contours of the concept of civil society, like all
important concepts, remain subject to debate -- marriage and family are generally thought to be institutions that
reside at the heart of civil society: see e.g. Linda C. McClain & James E. Fleming, "Foreword: Legal and
Constitutional Implications of the Calls to Revive Civil Society" (2000) 75 Chicago-Kent L. Rev. 289 (defining
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41 Alberta L. Rev. 619, *642
civil society as "a realm between the individual and the state, including the family and religious, civic, and other
voluntary associations") Anne Showstack-Sassoon, "Family, Civil Society, State: Is Gramsci's Concept of
'Societa Civile' Still Relevant?" (1998) Philosophical Forum 206; and Will Kymlicka, Contemporary Political
Philosophy: An Introduction (Oxford: Clarendon Press, 1990) at 250-257. For an analytical history of the
concept, see John Ehrenberg, Civil Society: The Critical Hist01y of an Idea (New York: New York University
Press, 1999); and Michael Walzer, "The Concept of Civil Society" in Michael Walzer, ed., Toward a Global
Civil Society (Providence, RI: Berghahn Books, 1995) 7.
n97 Put well by Ernest Gellner:
Civil Society is that set of diverse non-governmental institutions which is strong enough to
counterbalance the state and, whilst not preventing the state from fulfilling its role of keeper of
the peace and arbitrator between major interests, can nevertheless prevent the state from
dominating and atomizing the rest of society
"The Importance of Being Modular" in John A. Hall, ed., Civil Society: The01y, History, Comparison
(Cambridge: Polity Press, 1995) at 32. Elsewhere, Gellner indicates that "civil society is a cluster of institutions
and associations strong enough to prevent tyranny, but which are, nevertheless, entered freely." See Conditions
of Liberty: Civil Society and Its Rivals (London: Hamish Hamilton, 1994) at 193.
n98 The ancients distinguished between two realms of human association: polis, the political, was, they
thought, formed -- constructed -- for the purposes of communal living; oikia, in contrast, was thought natural
and prior to the political and concerned with the ordinary, daily needs oflife. Arendt puts the matter thus:
According to Greek thought, the human capacity for political organization is not only different
from but stands in direct opposition to that natural association whose center is the home (oikia)
and the family.[ ... ] The realm of the polis ... was the sphere of freedom, and ifthere was a
relationship between these two spheres [the polis and the oikia], it was a matter of course that the
mastering of the necessities of life in the household was the condition for freedom of the polis.
(Supra note 3 at 24-25, 29).
Which is to say, political freedom in the public sphere is different from, anterior to, and dependent upon social
freedom in the private sphere. Incidentally, when we speak of civil rights, we speak as did the ancients: "Civil
rights are ... prior and independent oflaw. Laws are enacted to protect civil rights; failing enactment, the law is
said to deny them. They seem, therefore, not to depend on the law for their existence, but only for their
recognition" (Lloyd L. Weinrib, "What Are Civil Rights?" (1991) 8 Social Philosophy & Policy I at 2).
n99 In the legal community no less than any other. See for example, "Symposium on Legal and
Constitutional Implications of the Calls to Revive Civil Society" (2000) 75 Chic.-Kent L. Rev. 289-612.
nl 00 For full elaboration, see David Johnston, The Idea of a Liberal Theory: A Critique and Reconstruction
(Princeton: Princeton University Press, 1994) at 18-27.
niOI Kymlicka, supra note 96 at 257.
nl02 Which is to say: "political liberalism .. . aims to maintain a distinction between the point ofview of
people as citizens and the various ethical points of view people take as members of families and other nonpublic
associations" (John Tomasi, Liberalism Beyond Justice: Citizens, Society, and the Boundaries of Political
Theory (Princeton: Princeton University Press, 200 I) at 41 ). Incidentally, Hart's famous insistence on the
separation of law and morals is best explained in terms ofthis liberal commitment: "the certification of
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41 Alberta L. Rev. 619, *642
something as legally valid" must not be thought "conclusive of the question of obedience," because that matter
falls properly to individual "moral scrutiny" and to the "sense that there is something outside the official system
by reference to which the individual must solve his problems of obedience" (H.L.A. Hart, The Concept of Law,
(Oxford: Clarendon Press, 1961) at 206).
nl 03 Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989) at 248-49.
nl04 Famously put by John Stuart Mill in his essay On Liberty (1859) (Harmondsworth: Penguin, 1974).
n105 See Ronald Dworkin, "Liberal Community" (1989) 77 Calif. L. Rev. 479; Alan Ryan, "The Liberal
Community" in John W. Chapman & Ian Shapiro, eds., Democratic Community (New York: New York
University Press, 1993) 91; and Tomasi, supra note I 02 passim.
nl06 See e.g. Jennifer Roback Morse, "No Families, No Freedom: Human Flourishing in a Free Society"
(1999) 16 Social Philosophy & Policy 290; and Nancy F. Cott, Public Vows: A History of Marriage and the
Nation (Cambridge, MA: Harvard University Press, 2000).
nl07 Freidrich A. von Hayek, The Road to Se1jdom (1944) (Chicago: University of Chicago Press, 1994).
nl08 Edmund Burke, Reflections on the Revolution in France (1790) ed. J.G.A. Pocock (Indianapolis:
Hackett Publishing, 1987).
nl09 See Jon Alexander & Joachim K.H.W. Schmidt, "Introduction: Social Engineering -- Genealogy of a
Concept" in Adam Podgorecki, Jon Alexander & Rob Shields, eds., Social Engineering (Ottawa: Carleton
University Press, 1996) I; and Michael T. Hayes, The Limits of Policy Change: Incrementalism, Worldview, and
the Rule of Law (Washington: Georgetown University Press, 2001). For an insightful intellectual history of this
worldview, see Zygmunt Bauman, Legislators and Interpreters: On Modernity, Post-Modernity, and
Intellectuals (Ithaca: Cornell University Press, 1987). On law and the notion of social engineering, see Linus J.
McManaman, Social Engineering: The Legal Philosophy of Roscoe Pound (Atchison: Abbey Student Press,
1953); and Robert E. Rodes, "Law, Social Change and the Ambivalence of History" (1975) 49 Proceedings &
Addresses ofthe American Catholic Philosophical Association 164.
nl!O Alexander & Schmidt, ibid at I.
nil! On the latter, see especially the pioneering work ofR.J. Rummel, including Death by Government
(New Brunswick, NJ: Transactions Publishers, 1994); and Statistics ofDemocide: Genocide and Mass Murder
Since 1900 (Charlottesville: Centre for National Security Law, 1997).
nll2 Michael Burleigh & Wolfgang Wippermann, The Racial State: Germany, 1933-1945 (Cambridge:
Cambridge University Press, 1991) at 304.
nll3 Neither the legal community nor marriage and family were of course excepted from co-ordination.
Concerning the former, see Ingo Muller, Hiller's Justice: The Courts of the Third Reich, trans. by Deborah
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41 Alberta L. Rev. 619, *642
Lucas Schneider (Cambridge, MA: Harvard University Press, 1991 ); Konrad H. Jarausch, The Unfree
Professions: German Lawyers, Teachers, and Engineers, 1900-1950 (New York: Oxford University Press,
1990); and Michael Stolleis, The Law under the Swastika: Studies on Legal History in Nazi Germany, trans. by
Thomas Dunlap (Chicago: University of Chicago Press, 1998). For the latter, see Lisa Pine, Nazi Family Policy,
1933-1945 (Oxford: Berg, 1997); Otto Kirchheimer, "The Legal Order ofNational Socialism" in Otto
Kirchheimer, Politics, Law, and Social Change: Selected Essays (New York: Columbia University Press, 1969)
88; and Stolleis, ibid. at 71-72.
nll4 See in this regard Alexander & Schmidt, supra note 109.
nll5 Paul Edward Gottfried, After Liberalism: Mass Democracy in the Managerial State (Princeton:
Princeton University Press, 200 I) at 25. For an insightful marxist analysis of "the law's role in policing civil
society," see Mark Neocleous, Administering Civil Society: Towards a Theory of State Power (Houndmills:
Macmillan, 1996) at 164.
nll6 Gottfried, ibid.
nl17 R. v. Oakes, [1986] l S.C.R. 103.
nll8 Halpern, supra note 4 at para. 133.
nll9 Ibid. at para. 134.
nl20 Ibid. at para. 2 [emphasis added].
nl2l Ibid. at para. 5 [emphasis added].
n122 Ibid. at 107 [emphasis added].
nl23 Ibid. at para. l 08.
nl24 That is, "in a free and democratic society" (ibid. at para. 142).
n125 Ibid. at para. 154.
nl26 Ibid. at para. 42.
nl27 Ibid. at para. 44.
n 128 Ibid. at para. I 08.
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41 Alberta L. Rev. 619, *642
n 129 Supra note 45 at 221.
nl30 Supra note 56 and accompanying text. Accord: Wardle, supra note 91 at 757, arguing that the "desired
transformation is so fundamental that it would constitute a basic replacement of the essential concept of
marriage."
nl31 In addition to Stone, supra note 24 and Gillis, supra note 24, see Stephen Cretney, Law, Law Reform
and the Family (Oxford: Clarendon Press, 1998); June Carbone, From Partners to Parents: The Second
Revolution in Family Law (New York: Columbia University Press, 2000); and Michael Grossberg, Governing
the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill : University of North Carolina
Press, 1985). For commentary on recent Canadian experience, see Nicholas C. Bala and Rebecca Jaremko
Bromwich, "Context and Inclusivity in Canada's Evolving Definition of the Family" (2002) 16 Int'l J. L. Pol'y &
Fam. 145.
nl32 On the meaning(s) oflegal intervention in these matters, see Laurence D. Houlgate, "What is Legal
Intervention in the Family? Family Law and Family Privacy" (1998) 17 Law & Philo. 141.
nl33 See e.g. Elizabeth Beck-Gemsheim, "On the Way to a Post-Familial Family: From a Community of
Need to Elective Affinity" (1998) 15 Theory, Culture & Society 53; Sandra Berns, "Folktales of Legality:
Family Law in the Procedural Republic" (2000) 11 Law & Crit. 1; John Dewar, "Family Law and Its
Discontents" (2000) 14 Int'l J.L. Pol'y & Fam. 59; Paul Ginsborg, "Measuring the Distance: The Case of the
Family, 1968-2001" (2002) 68 Thesis Eleven 5; Alice Hearst, "Constructing the Family in Law and Policy"
(1997) 22 Law & Soc. Inquiry 131; Martha Minow, "'Forming Underneath Everything That Grows' : Toward a
History of Family Law," (1985) Wis. L. Rev. 819; Carl E. Schneider, "Moral Discourse and the Transformation
of American Family Law" (1985) 83 Mich. L. Rev. 1803; Lee E. Teitelbaum, "Family History and Family Law"
(1985) Wise. L. Rev. 1135; and BrianT. Trainor, "The State, Marriage and Divorce" (1992) 9:2 J. of Applied
Philosophy 135.
nl34 Incidentally, Rawls appears to have recognized that this would be the result of subjecting marriage and
family to state norms; (A Theory of Justice (Cambridge, MA: Belknap Press, 1971) at 151). For a rejoinder to
Rawls, see Michael J. Sandel, Liberalism and the Limits of Justice, 2nd ed. (Cambridge: Cambridge University
Press, 1998) at 33.
n135 Though constitutive theory has been sometimes pursued by liberal scholars, its proper home is
marxist. For the former, see e.g. Robert M. Cover, "Foreword: Nomos and Narrative" (1983) 97 Harv. L. Rev. 4;
James Boyd White, "Rhetoric and Law" in James Boyd White, Heracles' Bow: Essays on the Rhetoric and
Poetics of Law (Madison: University of Wisconsin Press, 1985) 28; and-- curiously and only this once --
Dworkin, "Preface" Law's Empire, supra note 1 at vii. For the latter, see e.g. Ruth Fletcher, "Legal Forms and
Reproductive Norms" (2003) 12 Social & Legal Studies 217; and Neocleous, supra note 115.
n 136 Alexander & Schmidt, supra note 1 09 at 1.
nl37 That this result goes hand in glove with juridical reception of the social is a matter often overlooked
and not least by most proponents of same-sex marriage. For instance, Petchesky & Zaretsky have each argued
that the juridical recognition of women in the nineteenth century implicated an expanded state and medical
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41 Alberta L. Rev. 619, *642
control over the reproductive and sexual conduct of women. See Rosalind Pollack Petchesky, Abortion and
Women's Choice: The State, Sexuality, and Reproductive Freedom (New York: Longman, 1984); and Eli
Zaretsky, "The Place of the Family in the Origins of the Welfare State" in Barrie Thome & Marilyn Yalom, eds.,
Rethinking the Family: Some Feminist Questions (New York: Longman, 1982) 188. Martha Minow makes the
same point concerning the effect of rights of children in expanding judicial power and state control over the lives
ofboth children and adults; "Interpreting Rights: An Essay for Robert Cover" (1987) 96 Yale L.J. 1882, n. 82.
nl38 For example, see the Court's repeated, self-satisfied denigration of what it terms "natural procreation"
(supra note 4 at paras. 93, 122, 130); its off-hand dismissal of arguments concerning consequences as
"speculative" (ibid. at para. 134); or its summary defense of its decision not to allow a period of suspension
(ibid. at para. 153).
n 139 Concerning the former, see Carl F. Stychin, Law's Desire: Sexuality and the Limits of Justice
(London: Routledge, 1995; and for the latter, see Michael Warner, ed., Fear of a Queer Planet: Queer Politics
and Social Theory (Minneapolis: University of Minnesota Press, 1993).
nl40 See Miriam Smith, Lesbian and Gay Rights in Canada: Social Movements and Equality-Seeking,
1971-1995 (Toronto: University of Toronto Press, 1999); and Barry D. Adam, The Rise of a Gay and Lesbian
Movement, rev. ed. (New York: Twayne Publishers, 1995).
nl41 Most famously by Claudia Card, "Against Marriage" in John Corvino, ed., Same Sex: Debating the
Ethics, Science, and Culture of Homosexuality (London: Rowman & Littlefield, 1997) 317. Eskridge, supra note
50 at 51-85 provides a summary of the ongoing debate.
nl42 Sullivan, for instance, thinks same-sex marriage desirable because it will serve as "anchor 000 in the
maelstrom of sex and relationships to which we are all prone," because it "provides a mechanism for emotional
and economic security" and "role models for young gay people," because it "could help bridge the gulf often
found between homosexuals and their parents 000 [and] to heal the gay-straight rift," and because it will enable
gays and lesbians to feel that "their emotional orientation [is] not merely about pleasure, or sin, or shame, or
otherness" (supra note 66 at 84, 85, 86, 87). For his part, Eskridge supports same-sex marriage because, in his
view, it would have a "civilizing effect" on gays and lesbian and the rest of society, because it would lead to a
"greater degree of domestication" among gays and lesbians, and because its "commitment device" would reduce
both promiscuity among gays and lesbians and consequently the risk to the exposure to HIV-infection; supra
note 50 at 111-12. That these arguments call for the manipulation of the lifeworld of homosexuals I should think
would be obvious. That they also, in my view, seek to normalize and to tame the transgressive nature of
homosexual culture and bleed into self-hatred, are unhappily matters that I cannot pursue here. Incidentally, the
Court in Halpern at one point appears to endorse Eskridge's civilizing rational for same-sex marriage: see supra
note 4 at para. 134.
nl43 Not, in any event, in the absence of harm.
001402





TAB 74



West law
2I CANJFL II
2I Can. J. Fam. L. II
CHAPTER ONE:
CHAPTER TWO:
Canadian Journal of Family Law
2004
Article
*11 Judicial Redefinition of Marriage
Monte Neil Stewart [FNaiJ
Copyright 2004 by Canadian Journal of Family Law; Monte Neil Stewart
TABLE OF CONTENTS
INTRODUCTION
HISTORICAL AND LEGAL CONTEXT
A.
B.
C.
A Short Legal History of Same-Sex Couples
and Civil Marriage
Equality Jurisprudence
The United States: One Plus Fifty
l.
2.
3.
Federal Equality
Jurisprudence (the Fed-
eral Model)
Vermont: Baker v.
State
Massachusetts:
Goodridge v. Depart-
ment of Public Health
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13
17
26
28
29
3I
33
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21 Can. J. Fam. L. 11
D. The Charter and Canadian Equality Juris-
prudence
I .
2.
British Columbia:
EGALE Canada Inc v.
Canada (Attorney Gen-
eral)
Ontario: Halpern v.
Toronto (City)
36
38
40
CHAPTER THE RELEVANT MEANINGS OF PROCREATION 41
THREE:
A. The Common Pattern of Argument and 41
Strategy
B. Society's Deep Logic of Marriage: Children 44
as Consequence
C. Societal Valuation of Different Kinds of 52
Sexual Conduct
D. Governmental Inquiry Into Marital Procrea- 58
tive Intentions and Capacities
E. What Marriage Now "Is" and the Personal 60
Perspective
F. Conclusion 62
CHAPTER FOUR: THE RELATIVE VALUE OF DIFFERENT CHILD-REARING 64
MODES
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A.
B.
Married Mother/Father Child-Rearing as the
Optimal Mode
The No-Downside Argument: Social Institu-
tions as Webs of Meanings
1.
2.
Practical Aspects of
the No-Downside Ar-
gument
The Likely Conse-
quences of the Re-
definition of Marriage
67
71
71
75
CHAPTER FIVE: COMPETING THEORIES OF GENDER AND OF ADULT RELA- 85
CHAPTER SIX:
TIONSHIPS
A. Radical Social Constructionism
B. The Close Personal Relationship Theory
c. Foreground Tasks and Background Tasks
AT THE INTERSECTION OF EQUALITY ANDDIGNITY
A. The Right to Equal Concern and Respect
1.
2.
The Origins and
Content of the Right
The Problematic
Application of the
Right in the Marriage
Context
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95
99
100
102
102
108
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CHAPTER SEV-
EN:
CHAPTER EIGHT:
B. Equality and Dignity
UNDERSTANDING GOODRIDGE
A.
B.
c.
CONCLUSION
Dworkin's Distinction
The Natural Model in Goodridge andRe
Opinions of the Justices
The Value of the Natural Model in the Ma-
jority Opinions
*13 CHAPTER ONE
INTRODUCTION
Page4
116
120
123
127
130
Judicial alteration of the meaning of civil marriage from the union of a man and a woman to the union of any two per-
sons raises a number of legal issues not raised by legislative redefinition; these are separation-of-powers issues centred in
notions of the proper scope and role of judicial review, creation of standards to guide judicial application of broad and open-
ended constitutional guarantees like equality, liberty, and dignity, judicial deference to the political branches, and the like.
But besides the problems inherent in discerning the proper divide between judicial and legislative activity in this area, there is
the challenge - once the judiciary gets involved - of getting more usual but still essential judicial tasks done well. This
article examines whether those tasks have been done well. It does so in the context of a handful of key issues as treated in
four appellate cases.
Those four cases are Vermont's Baker v. State, [FNl] British Columbia's EGALE Canada Inc v. Canada (Attorney Gen-
eral), [FN2] Ontario's Halpern v. Toronto (City), [FN3] and Massachusetts' Goodridge v. Department of Public Health.
[FN4] Developments in the redefmition of civil marriage in various parts of the world position these cases as, to date, the
most important relative to the large separation-of-powers issues implicated by judicial activity in this area. But those same
developments also have combined to make the four cases the best samples, to date, of the focus of this article: performance of
traditional judicial tasks in resolving a few issues central to redefmition or not of civil marriage.
*14 For purposes of this article, all those issues have as their context equality jurisprudence. That is not to suggest that
the issues, or some of them anyway, may not arise in other contexts. They may and do, particularly in the context of liberty
jurisprudence (whether couched in terms of interests in privacy, autonomy, or identity). But limiting the context to equality
jurisprudence seems justified for reasons beyond the omnipresent need for many such limitations in a work of this kind. First,
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in this area of marriage for same-sex couples the great bulk of Canadian and American judicial work has centred on equality
guarantees (and this will be the case for the work yet to take place in South Africa). Second, equality jurisprudence in those
countries encompasses all or virtually all the arguments plausibly made under any rights theory, and, indeed, at least the Mas-
sachusetts court deems equality and liberty analysis in this area to be essentially the same. [FN5J Third, the well-developed
equality jurisprudence across the chosen jurisdictions facilitates comparative analysis. Fourth, despite internal debate and
lack of unanimity, in large measure activists pushing for the redefinition of marriage have chosen equality arguments to serve
as the dominant centre of their political and legal approach. [FN6]
*15 The key issues are the relevant meanings of procreation (chapter three), the relevance of differing modes of child-
rearing (chapter four), the relevance of competing theories of gender and of the marriage relationship (chapter five), and the
application, in light of their origins, of a right to equal concern and respect and the value of human dignity the right is
deemed to entail (chapter six). Chapter four also examines a concept applicable to both the procreation and the child-rearing
issues, the plausibility of redefinition adversely affecting the institution of marriage as it has been known.
One clarification seems needful here. This article does not suggest that judicial work on the issues chosen for examina-
tion somehow avoids separation-of-powers questions, particularly the proper measure of deference to the legislature. As the
following chapters demonstrate, deferring or not to legislative judgment (whether actual or only conceivable) forms a vivid
background to the judicial strugglings with the issues chosen for examination, and the outcome in the courts ultimately turns
on the deference question. When this article speaks of more usual but still essential judicial tasks, it is referring to certain
foreground tasks. Those tasks include preeminently the assessment of arguments, that is, the judgment of what qualifies as a
good argument and what does not. That in turn requires teasing out the components of an argument; seeing how those com-
ponents, like bricks, are stacked together to form a stable structure, or not; identifying argument chains, whether of causation
or of logic; and measuring the strength of the links, whether factual or rational - in other words, doing what judges are sup-
posed to do and do well in any case. This article will ultimately suggest that, in the area of the redefinition of marriage, better
performance of the foreground tasks makes easier the resolution of the ultimate deference-to-the-legislature issues.
Regarding terminology, rather than use the more common phrase same-sex marriage, this article uses the phrase gender-
less marriage to refer to the form of civil marriage legally defmed as *16 the union of any two persons. The phrase same-sex
marriage is subtly misleading; although the legal defmition of civil marriage as the union of any two persons allows same-
sex couples to marry, it of course also allows a woman and a man to marry, and everywhere the debate focuses on one legally
recognized relationship known as marriage, not two. The phrase same-sex marriage thus conveys the sense (erroneous) of a
legally recognized marriage separate or different from the marriage of a man and a woman. This article refers to civil mar-
riage defined as the union of a man and a woman as man/woman marriage.
Genderless is used instead of non-gendered and man/woman instead of gendered because, as a matter of contemporary
language usage, to use the words gendered and non-gendered could be seen as an endorsement of certain versions of social
constructionist thought, versions that this article refers to in the aggregate as radical social constructionism. Although those
versions may be valid, this article stands neutral on the validity question for reasons made clear in chapter five.
Some legislatures have created statutory arrangements providing to same-sex couples (and sometimes also to opposite-
sex couples) a legally recognized status more or less marriage-like but not carrying the title marriage. These arrangements
have various names: civil partnership, civil union, domestic partnership, civil pact of solidarity (the translation of France's
pacte civil de solidarite), or statutory cohabitation (the translation of Belgium's cohabitation legale). This article uses the
shortest of the alternative names, civil union, to refer generally to all such statutorily regulated, legally recognized relation-
ships.
In a number of jurisdictions, civil unions encompass essentially all the legal elements of man/woman marriage except the
name marriage. Moreover, increasingly jurisdictions are prepared to provide civil unions to same-sex couples (sometimes to
avoid judge-ordered genderless marriage); this strong trend seems certain to continue. So the observation seems valid that the
*17 intense cultural, social, political, and legal conflict is really over the use (and, in a sense, the possession) of a word-
marriage. Recognition of that fact may initially evoke memories of Swift's Big Endians and Little Endians. But one of this
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article's suggestions, created almost as a by-product of the work it pursues straight-forwardly, is that the conflict over the use
of the word marriage is not just emotionally but also rationally important to the people on each side and is of profound im-
portance to society.
The next chapter gives in summary fashion necessary background information. This includes a short legal history of
same-sex couples and civil marriage, certain aspects of equality jurisprudence in general, and features of equality jurispru-
dence unique to or at least highly characteristic of American and Canadian equality jurisprudence. The chapter concludes by
summarizing each of the four cases. As specified above, the remaining chapters address in turn each of the key issues select-
ed for close examination. [FN7J
CHAPTER TWO
HISTORICAL AND LEGAL CONTEXT
A. A Short Legal History of Same-Sex Couples and Civil Marriage
As early as 1970, same-sex couples in North America were seeking marriage licenses and, when denied, making consti-
tutional arguments to the courts. [FN8J The courts rejected these arguments, evincing utter certainty regarding the correctness
of *18 their conclusions and a corresponding certainty that the same-sex couples' legal claims were beyond the pale.
The fifteen years between 1989 and 2003, however, brought dramatic changes to the law governing the relationship of
same-sex couples. In Europe, change began in Denmark, which in 1989 was the first nation to adopt civil union legislation.
[FN9J Other European nations followed: Norway (1993), Sweden (1994), Iceland (1996), The Netherlands (1998), some
Spanish Autonomous Communities, France (1999), Belgium (2000), Germany (2001), and Finland (2002). [FNlOJ Still other
European jurisdictions appear poised to join that list. [FN 111 In 2001, the Netherlands, by legislation, became the first nation
to redefine marriage so as to include same-sex couples. [FN12l Belgium, also by legislation, became the second in 2003.
[FN13l
In Europe, Australia, and New Zealand, despite or because of legislative activity, the courts have declined to redefine
marriage, rejecting arguments based on national constitutions or international instruments. [FN14J
*19 In 1992 in South Africa, as pneumatic pressures were bringing the apartheid regime to its end and people's minds
were focussed on the shape of a newly emerging constitutional model, Edwin Cameron gave a highly influential lecture mak-
ing the point that the situation posed a test of the new dispensation's commitment to human rights: "The debate about sexual
orientation occasions a test of the integrity of the Constitution-making process and those who dominate it." [FN15l The next
year, the interim constitution expressly prohibited discrimination based on sexual orientation [FN 16] (the first national con-
stitution to do so), and that provision (now joined by one on marital status) was carried into the permanent constitution in
1996. [FN17]
Between 1998 and 2003, South Africa's Constitutional Court applied the equality and anti-discrimination provisions of
the constitution, particularly the express reference to sexual orientation, to strike down or alter a number of laws deemed to
discriminate against gays, lesbians, or same-sex couples. [FN18] Then *20 late in 2003, the Court received a case arguably
calling for resolution of the question whether the constitution mandated that civil marriage be opened to same-sex couples;
the Court, however, dismissed the appeal because of a procedural defect, stating that for the time being the proper appellate
route was to the Supreme Court of Appeal. [FN19]
In the most recent case where it reached the merits, the Constitutional Court ended with a note of impatience at the on-
going failure of the legislature to enact "[ c ]omprehensive legislation regularising relationships between gay and lesbian per-
sons". [FN20] Activists, however, have asserted that they will wait no longer for legislative action but instead will pursue
litigation in an effort to secure a ruling that the constitution mandates genderless marriage. [FN21] Accordingly, resolution of
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the marriage issue in South Africa seems imminent, either by judicial action, legislative action, or both.
The same is true in Canada. The Charter of Rights and Freedoms, adopted in 1982, did not specify sexual orientation as a
ground protected by its equality and nondiscrimination provisions, but Canadian judicial activity on that ground, particularly
with respect to marriage, has gone far. The first case presenting sexual orientation discrimination to the Supreme Court of
Canada resulted in a closely divided court giving judgment in *21 favour of a statute providing supplemental social security
payments to the "spouse" in a man/woman relationship but not to a similarly situated partner in a same-sex relationship.
[FN22J By the next case, however, the Court had unanimously accepted that sexual orientation was analogous to those
grounds that the Charter expressly protected against discrimination and hence should receive the same constitutional treat-
ment as the enumerated grounds. [FN23] Then in 1999, the Supreme Court held violative of the Charter a provision of the
Family Law Act that allowed a person in a long-term man/woman relationship, upon its termination, to apply for an order of
support, while not granting that same opportunity to a similarly situated person in a same-sex relationship. [FN24]
In May 2003, the British Columbia Court of Appeal in EGALE held that the Charter mandated genderless marriage but
stayed its judgment for a little over a year to allow Parliamentary action. [FN25] In June 2003, the Ontario Court of Appeal in
Halpern ruled the same on the Charter issue but declined to stay its judgment, giving it immediate effect. [FN26] In response,
the British Columbia court ended its stay. [FN27] The Chretien government declined to appeal either judgment and instead
proposed a bill defining marriage as the union of any two persons. [FN28] In *22 connection, the Chretien government re-
ferred three questions to the Supreme Court dealing with the authority of Parliament to redefine marriage as proposed and to
allow religious organizations to decline to solemnize a marriage between a same-sex couple. [FN29] But in December 2003,
Prime Minister Chretien retired and was replaced by Paul Martin. In late January 2004, the Martin government stated that it
favoured the genderless marriage bill but that Parliament's decision on it ought to be informed by a Supreme Court ruling
whether the Charter mandates genderless marriage. [FN30] Accordingly, the government added these additional questions to
the previous referral:
Is the opposite-sex requirement for marriage for civil purposes, as established by the common Jaw and set out for
Quebec ins. 5 of the Federal Law- Civil Law Harmonization Act, No. 1, [S.C. 2001, c. 4], consistent with the Canadi-
an Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent? [FN31]
Thus, Canadian resolution of the marriage issue seems imminent, either by judicial action, legislative action, or both.
*23 American resolution of the issue, by contrast, promises to take many more years. That is due, in part, to the fact that
the states, not the federal government, define marriage and set the qualifications for those wishing to marry, [FN32] a situa-
tion just the opposite of that in South Africa and Canada.
In 1993, the Hawaii Supreme Court held that the state constitution allowed man/woman marriage only if the State could
demonstrate compelling governmental interests for continuing to exclude same-sex couples from marriage. [FN33] The case
was remanded to see if the State could meet that heavy burden, but before the case returned for further appellate review the
citizens amended the state constitution to assure continuance of man/woman marriage. [FN34] Much the same happened in
Alaska after a trial court ruling in favour of genderless marriage. [FN35] In response to such judicial activity, Congress en-
acted in 1996 the Defense of Marriage Act (DOMA), [FN36] with two provisions. One defined marriage for all federal statu-
tory purposes as the union of a man and a woman. [FN37] The other authorized each State not to "give effect to any public
act, record, or judicial proceeding of any *24 other State ... respecting a relationship between persons of the same sex that is
treated as a marriage under the laws of such other State". [FN38] The latter raises a substantial constitutional question be-
cause the full faith and credit clause of the federal constitution says: "Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every other State." [FN39] That clause underlays the old American legal
adage: "Married in one state, married in all states."
Then in 1999, the Vermont Supreme Court in Baker held that the state constitution's equality guarantee prohibited the
exclusion of same-sex couples from the benefits and protections incident to marriage but also held "that the current statutory
scheme shall remain in effect for a reasonable period of time to enable the Legislature to consider and enact implementing
legislation in an orderly and expeditious fashion." [FN40] The legislature responded with a civil union act. [FN41]
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In June 2003, the United States Supreme Court held that federal constitutional notions of liberty, privacy, and autonomy
invalidated statutes criminalizing private, non-meretricious, consensual, adult homosexual conduct. [FN42J In November
2003, the Massachusetts Supreme Judicial Court held in Goodridge that the state constitution's liberty and equality guaran-
tees render man/woman marriage unconstitutional because there is no "rational basis" for continuing it. [FN43] The court
stayed its judgment until 17 May 2004 " ... to permit the Legislature to take such *25 action as it may deem appropriate in
light of this opinion." [FN44J The Massachusetts senate in December 2003 referred to the court the question whether a civil
union act would satisfy the court's judgment. [FN45] The court responded that it would not, stating that the state constitution
required genderless marriage. [FN46J The Governor called for an amendment to the state constitution to preserve
man/woman marriage, and the legislature voted to begin the amendment process. [FN47J
Activists are pursuing in other American states litigation aimed at achieving genderless marriage. [FN48] Thirty-nine
states, however, have by now adopted legislation or amended the state constitution to enshrine man/woman marriage as the
only acceptable form. [FN49J Even such express law-making, however, does not preclude litigation, as evidenced by the City
of San Francisco's recent actions. The City took the position that the California state constitution voided the voter-passed law
preserving man/woman marriage and, on that basis, began issuing *26 marriage licences to same-sex couples, with the result-
ing controversy now before the courts. [FN50J
In response to these developments, political support has mounted for a federal constitutional amendment (known as the
"Federal Marriage Amendment" or "FMA") defining marriage in the United States as the union of a man and a woman.
[FN5IJ President Bush gave his support to such an amendment in February 2004. [FN52J
Thus, the possibilities for and the extra-territorial effect of genderless marriages in the United States will not be finally
resolved until some final judiciaVlegislative resolution of the genderless marriage issue in Massachusetts, New Jersey, Cali-
fornia, and any number of other states thereafter, a final decision from the United States Supreme Court on the constitutional-
ity ofDOMA, and final success or failure in adopting a federal marriage amendment.
B. Equality Jurisprudence
The State rarely makes a law that in its content and application affects all persons equally. In large measure, law-making
is an exercise in drawing lines that distinguish between certain groups of persons and other groups and then in imposing bur-
dens and affording benefits differently on the groups thus distinguished. At the same time, the super-norm of most modern
liberal *27 democratic States includes in one form or another the mandate that the State treat people equally, or the mandate
that it not discriminate against them on grounds either specified or left unstated, or both. [FN53]
Thus on a fairly continuing basis the modern liberal democratic State confronts the task of reconciling the mandates of its
equality provision with the reality that virtually all its laws treat people unequally. Because of their current concepts of judi-
cial review, in Canada and the United States that task is preeminently the judiciary's. This judicial task includes the articula-
tion of some demarcation between the super-norm's mandate of equality (or non-discrimination) and the legislature's duty to
order and regulate (with all the line-drawing that unavoidably entails), a demarcation that gives to each - constitutional
mandate and legislative duty- its due scope. As aids in performing that task, the courts develop, refine, and refashion con-
ceptual tools articulated as principles, doctrines, "tests," or guides and used on a case-by-case basis to adjudge whether the
impugned state (or private) action falls on one side or the other of the line of demarcation. Sometimes, constitutional text
provides a conceptual tool more or less fully formed, but not infrequently ideas inherent in the notion of equality necessarily
call forth such a tool. Such conceptual tools- principles, doctrines, "tests," guides - and their applications in cases consti-
tute a jurisdiction's equality jurisprudence. Although each State's equality jurisprudence differs in some respects from that of
every other State, certain fundamental concepts (although carrying different labels) appear nearly universally. This article
assumes the reader's familiarity with those fundamental, recurring concepts of equality jurisprudence.
The equality jurisprudence of Canada and the United States each in its own way adds to and modifies the fundamental
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*28 and recurring components of equality jurisprudence found across States. The following sections describe briefly the as-
pects of those jurisdictions' equality jurisprudence implicated by the key issues selected for review and then, in summarizing
the four cases, begin to show how those aspects have engaged genderless marriage arguments.
C. The United States: One Plus Fifty
In the United States, the national government and nearly all the states have their own constitutional equality provision.
[FN54] And as already noted, under American federalism, family law has always been viewed as the province of the states
and that includes the defmition of marriage and the qualifications of those entering into it. The implications of this arrange-
ment can be sorted as follows:
a) A Supreme Court ruling under the fourteenth amendment [FN55] in favour of genderless marriage will make
that form universal throughout the nation.
b) But in the absence of such a ruling or in the presence of a contrary ruling (that is, a ruling in favour of the fed-
eral constitutional validity of man/woman marriage), the genderless marriage issue will be decided pursuant to the
constitution of each state.
*29 c) That means that, in each state that has not amended its constitution to preserve man/woman marriage, the
state's highest court will resolve the issue, probably under the state constitution's equality provision and, in so ruling,
that court will not be bound by the decisions of the federal Supreme Court but rather will apply the state's own equality
jurisprudence.
Although theoretically independent to fashion an equality jurisprudence differing from the federal model, the states'
highest courts have to a very considerable extent followed that model. This is due in part, no doubt, to the nature of equality
and anti-discrimination ideals; as noted earlier, that nature gives rise to certain fundamental and recurring concepts. This imi-
tation is also due in part to the prestige enjoyed by the federal model, largely as a consequence of the powerful social impacts
of Supreme Court equality decisions. [FN561 In any event, because of the federal model's influence on the state courts, analy-
sis begins with that model.
1. Federal Equality Jurisprudence (the Federal Model)
"Level of scrutiny'' is the dominant feature of the federal model, which presently includes (expressly) three such levels:
rational basis, intermediate (or heightened), and strict. Generally understood, the rational basis level of scrutiny will sustain
official discriminatory action on the mere showing of some "reasonably conceivable state of facts that could provide a ration-
al basis for" the action. [FN57] At times, however, this level of judicial scrutiny is changed more or Jess covertly into "ra-
tional basis with teeth," an approach much Jess deferential to state action. [FN58] Rational basis *30 scrutiny is the default
position; it is applied to all cases except those requiring intermediate or strict scrutiny.
Strict scrutiny applies when government discrimination disadvantages or at least implicates "suspect classes" or "suspect
categories" (the paradigmatic example being freed slaves and their progeny) or impinges on the exercise of a "fundamental
right" (such as freedom of expression). In such a case, the court will sustain official discriminatory action only on a showing
that the action advances a compelling governmental interest not adequately served by a Jess-objectionable, alternative
scheme. Or, to use language from general equality jurisprudence, State discrimination can withstand this level of scrutiny
only if the State's interest(s) advanced by the Jaw is of the highest order, only if the connection between the impugned law's
means and its purposes is strong and direct, and only if the Jaw is superior relative to plausible alternatives, with respect both
to effectiveness and to precision. No federal court has yet held homosexuals to be a suspect class. In the context of
man/woman marriage, the Supreme Court has held the right to marry fundamental, but no appellate court has yet extended
the federal fundamental right to marry to the context of same-sex couples.
Intermediate scrutiny applies to gender-based discrimination: "to withstand constitutional challenge, ... classifications by
gender must serve important governmental objectives and must be substantially related to achievement of those objectives."
[FN591 Since 1996, government must also demonstrate an "exceedingly persuasive justification" for such a classification.
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[FN60J In addressing federal and state constitutional *31 arguments to the contrary, the courts generally have held that classi-
fications based on homosexuality (either status or conduct) do not constitute gender-based discrimination. [FN61]
2. Vermont: Baker v State
Wardle has demonstrated that Vermont has two bodies of equality jurisprudence, one found in the Baker majority opin-
ion and the other in all the previous and subsequent cases concerned with the state constitution's Common Benefit Clause.
[FN62l This demonstration thus confirms the analysis and predictions of Justice Dooley's concurring opinion in Baker.
[FN63] The following paragraphs summarize Baker, focussing on its equality analysis.
Upon application, three same-sex couples were denied marriage licenses, and the trial court dismissed the ensuing com-
plaint, which invoked the Vermont constitution's equality provision, the Common Benefit Clause. The trial court held that
man/woman marriage "rationally furthered the State's interest in promoting 'the link between procreation and childrearing'."
[FN64J The appeal produced three opinions: majority (three justices), *32 concurring (Dooley J), and concurring and dissent-
ing (Johnson J.). All opinions agreed that man/woman marriage violated the Common Benefit clause; all but Judge Johnson's,
that the proper remedy was to allow the legislature to adopt either genderless marriage or civil union legislation. Regarding
the holding of violation, the majority applied its newly crafted standard of review: one "broadly deferential to the legislative
prerogative to define and advance governmental ends, while vigorously ensuring that the means chosen bear a just and rea-
sonable relation to the governmental objective," [FN65J and thus one requiring the courts to "engage in a meaningful, case-
specific analysis to ensure that any exclusion from the general benefit and protection of the law would bear a just and reason-
able relation to the legislative goals." [FN66J Justice Dooley applied the pre- and post-Baker model, "at least a close cousin
of the federal equal protection test," [FN67] and saw homosexuality as a suspect class requiring strict scrutiny. Justice John-
son applied that same model [FN68] but saw sex-based discrimination because
the sex-based classification contained in the marriage laws is unrelated to any valid purpose, but rather is a ves-
tige of sex-role stereotyping that applies to both men and women[;] the classification is still unlawful sex discrimina-
tion even if it applies equally to men and women. [FN69]
In applying their differing equality principles, the justices rejected in tum each of the key arguments advanced by the
State, beginning with "the government's interest in 'furthering the link *33 between procreation and child rearing"'; [FN70]
the court found unacceptable imprecision in the means (man/woman marriage) used to advance the governmental interest,
with that imprecision reflected in the fact that many married couples cannot or elect not to procreate, while many same-sex
couples use assisted-reproductive technologies (hereafter ART) and adoption laws. [FN7lJ The justices likewise rejected the
asserted governmental interest in promoting married mother/father child-rearing as the optimal child-rearing mode, noting in
passing "that child-development experts disagree and the answer is decidedly uncertain" [FN72] and then holding that legis-
lative allowance of same-sex couple adoption meant that the asserted interest was not a genuine and contemporary govern-
mental interest. [FN73]
Chapters three and four examine closely the court's reasoning regarding, respectively, procreation and child-rearing,
while chapter five uses the Johnson J. concurring and dissenting opinion as its primary vehicle for a close examination of the
role of competing gender theories.
3. Massachusetts: Goodridge v Department of Public Health
Upon application, seven same-sex couples were denied marriage licenses, and the trial court dismissed the ensuing com-
plaint, which invoked the Massachusetts constitution's equality and liberty provisions. The appeal produced five opinions:
plurality (three justices), concurring (Greaney J.), dissenting (Spina J.), dissenting (Sosman J.), and dissenting (Cordy J.),
with each dissenting justice joining each dissenting opinion. The plurality concluded that man/woman marriage did not pass
the rational *34 basis test. [FN74] The concurring opinion concluded that, because of the presence of both a fundamental
right (marriage) and sex-based discrimination, man/woman marriage must be subjected to strict scrutiny and, for the reasons
given by the plurality, it could not survive. [FN75] (The dissenting opinions are addressed in later chapters as warranted.)
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The Commonwealth had argued that man/woman marriage served its "legitimate interest in fostering and protecting the
link between marriage and procreation." [FN761 The plurality opinion rejected arguments regarding procreation (however
cast) for the same reasons given in Baker: imprecision of fit between legislative means and governmental interest in light of
the many married who do not or cannot procreate and the increase through ART and adoption of same-sex couples with chil-
dren. [FN77J The plurality opinion also rejected arguments regarding optimal child-rearing. The first step was to recast the
governmental interest not as one in promoting the optimal mode of child-rearing (married mother/father) but of "[p ]rotecting
the welfare of children", [FN78] meaning all children because the perceived Massachusetts policy was to "move vigorously
to strengthen the modern family in its many variations." [FN791 From here the court focused on the welfare of the children of
same-sex couples, seeing the limitation of man/woman marriage as detrimental to their welfare and suggesting that the
Commonwealth penalizes those children because it "disapproves of their parents' sexual orientation." [FN80l
*35 The plurality opinion made, relative to both the procreation and the child-rearing issues, an important argument la-
belled in this article the no-downside argument. (The Canadian courts in EGALE and Halpern had previously done the same.
[FN8ll)
The department has offered no evidence that forbidding marriage to people of the same sex will increase the
number of couples choosing to enter into opposite-sex marriages in order to have and raise children. There is thus no
rational relationship between the marriage statute and the Commonwealth's proffered goal of protecting the "optimal"
child rearing unit. [FN82J
The plurality opinion did not engage the Cordy J. dissent's arguments presented to counter the no-downside argument.
[FN83J
Because of its role in Goodridge, EGALE, and Halpern, the no-downside argument merits this elaboration: The argument
may concede, at least for purposes of argument, that man/woman marriage serves well, even optimally, important govern-
mental interests relative to procreation and child-rearing in ways that a marriage of same-sex couples cannot. It then asserts,
however, that opening marriage to same-sex couples will visit no harms upon, will result in no downside to, the institution of
marriage; that is, the rate of man/woman marriage will not decline and married men and women will continue at an undimin-
ished rate to have and rear children. At the same time, the argument asserts, such opening will result in valuable goods,
namely, an increase in same-sex couples' sense of dignity and equality and greater *36 security for their children. The argu-
ment's conclusion is that it is irrational not to "open" marriage to same-sex couples where there is no downside and such sub-
stantial upside.
Goodridge is an important case and portions of the various opinions are analysed in chapters three, four (both parts), and
five.
D. The Charter and Canadian Equality Jurisprudence
For all practical purposes, Canada's equality jurisprudence began with adoption of the Canadian Charter of Rights and
Freedoms in 1982. Section 15(1) provides:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, col-
our, religion, sex, age or mental or physical disability.
This provision is limited by section 1: The Charter "guarantees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
The Supreme Court of Canada (hereafter SCC) first comprehensively explicated Charter equality rights in 1989, in An-
drews v. Law Society (British Columbia), [FN84J and thereafter engaged in a vigorous judicial dialogue on the subject. In
1999, in Law v. Canada (Minister of Employment & Immigration), [FN85l the SCC, in an effort to harmonize and rationalize
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various strands of *37 equality jurisprudence resulting from that dialogue, again comprehensively explicated Charter equality
rights. The result of these developments is an unusually detailed, multi-step approach to resolving equality claims. The detail
of that approach defies a summary that is both short and fair, as evidenced by the fact that the SCC's own summary in Law of
just the section 15(1) portion of the analysis (ie, without the section 1 analysis) requires three full pages. [FN86J The SCC's
own summary of the purpose of section 15(1), however, merits quotation:
In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom
through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which
all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and
equally deserving of concern, respect and consideration. [FN871
This statement reflects the SCC's conclusion in Law that:
[T]he equality guarantee ins. 15(1) of the Charter must be understood and applied in light of the above [ie, digni-
ty-centred] understanding of its purpose. The overriding concern with protecting and promoting human dignity in the
sense just described infuses all elements of the discrimination analysis (emphasis added). [FN88]
In this fashion, the SCC welded the value of human dignity to the Charter's equality guarantee. Canada has, however, no
freestanding,*38 substantive right to dignity; the Charter never uses the word, and although the SCC cases use dignity as a
guiding value in equality adjudication, it has not fashioned an independent, substantive right to dignity. (Chapter six address-
es some implications for the genderless marriage issue.)
Regarding section 1 analysis, after a conclusion of discrimination prohibited by section 15(1)- a conclusion reached
without any regard to the nature or value of the governmental interests sought to be furthered by the impugned statute,
[FN89]- it then becomes "the government's burden under s. 1 ... to justify a breach of human dignity." [FN90] That burden
seems closely akin to that born by an American governmental entity faced with heightened or even strict scrutiny of its im-
pugned action.
1. British Columbia: EGALE Canada Inc v. Canada (Attorney General)
Again, this was a case brought by unsuccessful applicants for marriage licenses. By the time the British Columbia Court
of Appeal issued its decision, two other Canadian courts had concluded that man/woman marriage (whether found in com-
mon-law or statutory definition) contravenes section 15( 1) of the Charter and cannot be justified under section 1. Those were
the lower court in the Halpern case (a three-judge panel of the Ontario Divisional Court) [FN91J and a Quebec trial court in
Hendricks v. Quebec. [FN92] The Court of Appeal relied heavily on both, particularly the former, and concluded that the
common-law defmition of marriage as the union of a man and a woman *39 violated section 15(1) and was not saved by the
section 1 limitation.
The relevant meanings of procreation were at issue in both the section 15(1) analysis and the section 1 analysis. [FN93J
The Court of Appeal, relying on the Blair J. Divisional Court opinion in Halpern, took the view that whether section 15(1)
discrimination was even present depended on the relative degree of procreation's centrality to marriage. At some unspecified
but high degree of centrality, it must be said that "[s]ame-sex couples are simply incapable of marriage because they cannot
procreate". [FN94] Below that degree, discrimination is present. [FN95J The court found the latter. The court grounded its
rejection of justification under section 1 on two conclusions. First, the governmental interest was no longer sufficiently strong
to justify the man/woman limitation:
[T]he emphasis on procreation as being at the core of marriage has been displaced to a considerable degree by the
evolving view of marriage and its role in society ... [P]rocreation (including the rearing of children) resulting from
sexual intercourse between a husband and a wife, can no longer be regarded as a sufficiently pressing and substantial
objective ... [FN96]
Second was the no-downside argument. [FN971
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*40 Other than the short parenthetical in the quote just above, the court did not address any possible governmental inter-
est relative to different modes of child-rearing.
2. Ontario: Halpern v. Toronto (City)
This case was also brought by unsuccessful marriage license applicants. The Ontario Court of Appeal sustained the
same-sex couples' equality claims. In doing so, it addressed neither procreation nor child-rearing in the section 15(1) context,
only as part of the section 1 analysis. The court in its section 15(1) analysis did, however, devote extensive attention to digni-
ty [FN98J and to the law's expressive, or educative, function [FN99] (as it would do again in its section 1 analysis).
In an effort to meet the government's section 1 burden, the Attorney General pointed to marriage's success as "one of the
most durable institutions for the organization of society" and its valuable purposes "of uniting the opposite sexes, encourag-
ing the birth and raising of children of the marriage, and companionship." [FN100J The court refused to evaluate the societal
interest in "uniting the opposite sexes" because this interest (regardless of its weight or importance) constituted "a purpose
that demeans the dignity of same-sex couples" and is therefore "contrary to the values of a free and democratic society and
cannot be considered to be pressing and substantial." [FNl 01] The court rejected procreation and child-rearing as adequate
grounds because of the no-downside argument, [FN102] because (relative to *41 procreation) of adoption and ART, [FN103]
and because (relative to child-rearing) the evidence of the superiority of married mother/father child-rearing was not suffi-
cient to be "acceptable in a free and democratic society that prides itself on promoting equality and respect for all persons."
[FN104]
CHAPTER THREE
THE RELEVANT MEANINGS OF PROCREATION
This chapter's purpose is to assess, with one exception, the four cases' arguments relative to procreation, to assess to what
extent they qualify as good arguments. Thus, this chapter's purpose is much akin to the task conventionally performed by
judges - to judge arguments, to determine their rational, logical, and empirical strengths and weaknesses. The one exception
mentioned is the no-downside argument. It is more aptly addressed in the next chapter, the purpose of which is to assess the
four cases' arguments relative to child-rearing.
A. The Common Pattern of Argument and Strategy
A common pattern of argument regarding procreation - with two central facets - emerges from the four cases. One
facet minimizes procreation's place and meaning in the institution of marriage, while maximizing the place and meaning of
other components, preeminently companionship. This endeavour entails a summary of what marriage "is," with the summary
presented as descriptive (what the continuing evolution of marriage has made the institution now days), rather than as aspira-
tional (what, for purposes of the good life, the institution ought to be). It further entails the idea that if procreation's place and
meaning in marriage is not "essential" or "central" or even *42 "exclusive," then any argument from procreation in favour of
man/woman marriage must fail. A consistently used tool in the minimization of procreation is the over-inclusive/under-
inclusive argument: Laws regulating marriage do not exclude opposite-sex couples who cannot or will not procreate, and
same-sex couples create children through an array of techniques by which conception, gestation, and child-bearing occur
(ART). Therefore, the argument continues, those laws themselves demonstrate that the State's asserted interest in marriage as
a regulator of procreation is at best de minimis. The other facet of the common argument is to suggest that the procreative
nature of man/woman marriage is not substantially different from the nature of same-sex couple relationships. And running
through all this is a shift of perspective: The opinions often shift from assessing marriage as "a vital social institution" (to
quote Goodridge's opening sentence), that is, from assessing society's meanings, purposes, and uses of marriage, to an as-
sessment of the individual couple's perspective on the marriage experience.
After briefly exemplifying the common pattern of argument, the following paragraphs seek to assess the quality of the
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judicial performance.
Regarding the minimization of procreation's place and meaning in the institution of marriage and the maximization of
other components, the Goodridge plurality opinion asserts: "While it is certainly true that many, perhaps most, married cou-
ples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to
one another, not the begetting of children, that is the sine qua non of civil marriage." [FN105] That opinion also says that
"[ c ]ivil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ide-
als of mutuality, companionship, intimacy, fidelity, and family" [FN106] and in another *43 place seeks to demonstrate with
the law's allowance of"nonmarital child bearing" that procreation is not "a necessary component of civil marriage." [FN107]
For its part, Halpern summarizes marriage as "one of the most significant forms of personal relationships" through which
"individuals can publicly express their love and commitment to each other" and by which society approves "the personal
hopes, desires and aspirations that underlie loving, committed conjugal relationships." [FN108]
EGALE adopts the Blair J. argument in the lower court Halpern decision, [FN109] which proceeds through a telling
progression: Procreation is not "such a compelling and central aspect of marriage ... that it- and it alone- gives marriages
its defining characteristic" [FNll 0]; procreation is "no longer ... the central characteristic of marriage" [FNlllJ; and fmally,
"procreation is not essential to the nature of the institution" of marriage. [FN112] Later, EGALE states that "the emphasis on
procreation as being at the core of marriage has been displaced to a considerable degree by the evolving view of marriage."
[FN113] Baker speaks of official recognition and protection of "the professed commitment of two individuals to a lasting
relationship of mutual affection". [FN114]
Regarding the second facet of the common argument - the insubstantial difference between man/woman marriage and
*44 same-sex couple relationships with respect to procreation -, all four cases point to the prevalence of married couples
who are not procreative and of same-sex couples who get children through ART or adoption. [FN115] And regarding the
societal versus individual perspective on marriage, Halpern consciously uses the individual perspective, believing that Cana-
dian equality jurisprudence requires such, apparently even in the analytical task of weighing the governmental interests.
[FN116] This language in Goodridge exemplifies the shift away from the societal to the personal perspective: "Because it
fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed
institution, and the decision whether and whom to marry is among life's momentous acts of self- definition." [FN117]
B. Society's Deep Logic of Marriage: Children as Consequences
It is not easy to detect in the four cases' common argument any direct engagement with the States' procreation argument
as actually advanced; rather, the opinions seem to elide the argument by altering it into something different. Explication of
the argument actually advanced helps illuminate the extent to which, and how, the four cases actually engage it.
The States' procreation argument is grounded in a component of what this article refers to as society's deep logic ofmar-
riage, a component that the States' briefs and facta refer to as "the government's interest in 'furthering the link between pro-
creation and child rearing."' [FN118] The phrase deep logic of marriage merits this care: The phrase is meant to encompass
the *45 complex of purposes and values that the literature suggests inheres in the social institution of marriage as now expe-
rienced in Canadian and American societies. [FN119] Use of the phrase is not intended to say anything about the relative
stasis or dynamism of that complex of purposes and values. Nor does this article by any means attempt to delineate any of
those purposes and values other than the component of the complex most directly implicated by the procreation issue as
raised in the four cases. With those limiting clarifications, the article returns to its explication of the States' procreation argu-
ment.
The relevant component is understood in the literature as a response to two essential realities of man/woman intercourse:
its procreative power and its passion. The component's purpose is understood as the provision of adequate private welfare to
children. (As used here, the phrase private welfare includes not just the provision of physical needs such as food, clothing,
and shelter; it encompasses opportunities such as education, play, work, and discipline and intangibles such as love, respect,
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and security.) Man/woman intercourse, as an act of compelling passion often leading to child-bearing, has important implica-
tions for society. Societal interests are corroded when child-bearing occurs in a setting of inadequate private welfare and are
advanced when it occurs in a setting of adequate private welfare. Passion-based procreation militates against the latter and is
conducive of the former. That is because passion, not rationality, may well dictate the terms of the encounter. While rationali-
ty considers consequences nine months hence and thereafter, passion does not, to society's detriment. Hence, what is under-
stood to be a fundamental and originating purpose of marriage: to confine procreative passion to a setting, a social institution
actually, that will assure, to the largest practical extent, that passion's consequences (children) begin and continue life with
adequate private welfare. This purposive component of society's deep *46 logic of marriage is hereafter referred to as the
private welfare purpose. Although the immediate objects of the protective aspects of the private welfare purpose are the child
and the often vulnerable mother, society rationally sees itself as the ultimate beneficiary.
Here is the important explanation of the private welfare purpose from the Cordy J. dissent in Goodridge:
Paramount among its many important functions, the institution of marriage has systematically provided for the
regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in
which children will be reared, educated, and socialized . ... [A]n orderly society requires some mechanism for coping
with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that
mechanism. The institution of marriage provides the important legal and normative link between heterosexual inter-
course and procreation on the one hand and family responsibilities on the other .... [A]side from an act of heterosexual
intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman
as the parents of a particular child. The institution of marriage fills this void by formally binding the husband-father to
his wife and child, and imposing on him the responsibilities of fatherhood .... The alternative, a society without the in-
stitution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes,
would be chaotic. [FN120]
*47 Since the first case, Baker, the judges have had the States' procreation argument and the supporting literature availa-
ble to them, and in Goodridge the majority justices had before them also their dissenting colleague's explication of the con-
cepts, with references to the literature. Yet, with one exception shortly addressed, the majority opinions do not appear to en-
gage directly the States' argument and its implications for the man/woman marriage issue. That is because the two central
facets of the opinions' common argument entails avoidance of direct engagement. Implementation of the common strategy
does, however, indirectly engage to a certain extent the States' procreation argument. The quality of that indirect engagement
is considered next.
The indirect engagement resulting from implementation of the first facet of the strategy is this: the four cases' assertions
that procreation is not a "compelling" or "central" or "essential" or "core" component of the institution of marriage. In one
sense, these assertions seem accurate: The law, if not society, imposes no obligation on married couples to procreate, and
myriad married couples for many different reasons do not. The relevancy of this sense, however, seems problematic in that it
hardly if at all addresses the place and meaning of procreation in the institution of marriage that defenders of man/woman
marriage have advanced. They have said that a central and probably preeminent purpose of the civil institution of marriage
(its deep logic) is to regulate the consequences of man/woman intercourse, that is, to assure to the greatest extent practically
possible adequate private welfare at child-birth and thereafter. The opinions simply avoid this point when they say that mar-
riage law does not require an intent or ability to procreate in order to marry or actual procreation to stay married; they miss
the States' point that marriage's vital purpose in our societies is not to mandate man/woman procreation but to ameliorate its
consequences.
In the light of the States' understanding of marriage's purposiveness as centred in the consequences of passionate *48
man/woman intercourse, to deny the centrality of procreation to the institution of marriage is defensible only if human sexu-
ality has radically changed, only if the powerful tide of heterosexual attraction and procreative power has been stilled. Noth-
ing appears suggesting such a fundamental alteration in the human condition in the Canadian and American societies. Just the
contrary; each year in Canada and the United States, many millions of children, conceived in passion, are born, and arguably
those societies have no greater concern or interest than in the situation, the circumstances, of those children. In other words,
those societies have an important interest in the adequacy of the private welfare available to the millions of children born
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annually as the result of man/woman intercourse. And experience shows that marriage - built on the private protective pur-
pose of society's deep logic of marriage- well serves that interest. In the United States and Canada, society's burdens (the
negative consequences of child-bearing) are inversely correlated to the extent of private welfare, the extent of private welfare
is directly correlated to parental and familial ability, and parental and family ability is directly correlated to marriage and its
endurance. [FN12ll Or stated slightly differently, of all adequately studied child-rearing modes, married mother/father child-
rearing is the optimal mode as determined by measurement of outcomes deemed crucial for a child's (and hence society's)
well-being, including physical, mental, and emotional health and development; academic performance and levels of attain-
ment; and avoidance of crime and other forms of self- and other-destructive behaviour such as drug abuse and high-risk sexu-
al conduct. [FN 1221
Regarding the second facet of the common strategy (minimize in the context of procreation the differences between
man/woman marriage and same-sex couple relationships), the four cases' resulting indirect engagement with the States' *49
procreation argument is likewise problematic. First, it seems that the courts' enthusiasm to implement this facet of the strate-
gy resulted in rather startling conceptual and linguistic gaffes. Thus, EGALE eight times and Goodridge once speak of "het-
erosexual procreation", [FN1231 thereby appearing to imply that such procreation is not exclusive and somehow stands in
comparison to the "procreation" of same-sex couple relationships. Yet the phrase is misleading in its redundancy; the only
form of human procreation is heterosexual and that will continue to be the case until humankind begins human cloning. The
greater conceptual and linguistic gaffe, however, belongs to Goodridge alone:
It is hardly surprising that civil marriage developed historically as a means to regulate heterosexual conduct and
to promote child rearing, because until very recently unassisted heterosexual relations were the only means short of
adoption by which children could come into the world ... [FN124]
Adoption, of course, is not a "means ... by which children ... come into the world"; it only places them once "heterosexu-
al procreation" brings them into the world. Such are the mistakes resulting from a blinkered implementation of the second
facet of the common strategy.
Regarding the one substantive (as opposed to solely linguistic) basis for the strategy's second facet, ART, the four cases
do not address how congruent or not it is with society's deep logic of marriage. The States can argue that, from their perspec-
tive, the nature of ART assures that conception will be the result of deliberation, planning, preparation, and commitment,
which in turn assures to a high degree all the same relative to *50 provision of private welfare at birth and thereafter. Thus,
deliberative procreation by ART, for those dependent on it, to a not inconsiderable extent performs to society's benefit the
role that marriage was designed to fill for the far greater number engaged in passion-based procreation; hence, the incongrui-
ty between a genderless marriage claim based on "procreation by ART" and an important part of society's deep logic of mar-
riage. [FN125]
The States' procreation argument, as advanced, would seem to merit more than the elision seen in the four cases' majority
opinions. The Goodridge plurality opinion's one effort at direct engagement with the argument, however, does not adequately
supply what is merited but not otherwise provided. The plurality opinion asserts that "until very recently ... the absence of
widely available and effective contraceptives made the link between heterosexual sex and procreation very strong indeed"
[FN126] and then says that even the Cordy J. dissent "acknowledges, in 'the modern age,' 'heterosexual intercourse, procrea-
tion, and child care are not necessarily conjoined."' [FN127] Regarding the first quote, it is, of course, true and irrelevant.
The question is not the strength of the link prior to "very recently"; the question is its strength now, and all the quote inti-
mates is that presently the link is less strong than "very strong indeed." But what is needed is some plausible basis for believ-
ing that the link is now so weak as to remove the deep logic as a necessary component of rational analysis of the genderless
marriage issue, and the plurality opinion offers no such basis. The second quote, taken from the Cordy J. dissent, does not
qualify as supportive of*51 the plurality opinion's argument; that quote is a fragment of this thought:
Admittedly, heterosexual intercourse, procreation, and child care are not necessarily conjoined (particularly in the
modern age of widespread effective contraception and supportive social welfare programs), but an orderly society re-
quires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth.
The institution of marriage is that mechanism. [FN128]
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"[T]he fact that sexual intercourse commonly results in pregnancy and childbirth" is both true and relevant.
Reflection suggests a reason why the plurality opinion, with its contraception argument, went no further than to intimate
that "the link between heterosexual sex and procreation" is now, to some unspecified degree, less strong than "very strong
indeed" [FN129J The American and Canadian data suggests that the link, although undoubtedly diminished to some extent by
contraception, retains substantial force. Nonmarital American births approximated 1.4 million in 2002 and in that same year
accounted for 34% of all births. [FN130] In Canada in 1998, out-of-wedlock births accounted for 28% of all births. [FN131]
Although some *52 of those out-of-wedlock births are undoubtedly the result of deliberative procreation, the plurality opin-
ion provides no basis for seeing a large number as not preeminently the result of passion, a neglect of available contraceptive
techniques, and an aversion to resort to abortion. However effective a contraceptive culture can be theoretically, that is not
the North American culture. The private welfare purpose of marriage thus retains substantial vitality generally. The
Goodridge plurality opinion's effort to show otherwise disappoints in its inadequacy.
C. Societal Valuation of Different Kinds of Sexual Conduct
An extraordinarily interesting part of the Goodridge plurality opinion is its treatment of society's relative valuations of
different kinds of sexual conduct. The opinion at page 331 asserts: "Our laws of civil marriage do not privilege procreative
heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating
a family." Assessment of this assertion requires a step back to look at whether, and if so, why and how society values differ-
ently different kinds of sexual conduct.
That our societies through their laws value different sexual conducts differently seems true enough. The evidence in the
laws is circumstantial (ie, no explicit relative valuations) but strong. The evidence is perhaps strongest at the disapproval end
of the spectrum, which usually has been and is the criminal law's domain. The recent successful prosecution of America's
most famous living polygamist, Tom Green, illustrates. [FN132] Green was convicted of four counts of bigamy (that variety
known as unlawful cohabitation, which has a sexual conduct element), one count of criminal non-support (arising from his
failure to financially support the product of his sexual conduct, more than twenty children), and one count of child rape (aris-
ing from his *53 act, as a 38-year-old man, of sexual intercourse- evidenced by childbirth- with a 13-year-old "wife").
Green received a prison sentence for each count of the judgment of conviction, with the sentence for bigamy being more on-
erous than that for criminal non-support and the sentence for child rape being much more severe than all the others. The rea-
sons for the varying levels of disapproval are readily apprehended; the point is not those reasons in themselves; the point is
that the levels of disapproval vary and that the variance is rational. It is rational to deem the protection of children from sexu-
al exploitation a more important State interest than preventing a polygamous life-style or scaring "dead-beat dads" into ful-
filment of their support obligations. [FN133]
A typical criminal code, even now days, covers a broad range of sexual conducts, usually involving in some way vio-
lence, coercion, deceit, publicity, commercialism, or youth. [FN134] That range, although broad, still covers only a portion of
all the various kinds of human sexual conduct. That does not mean, of course, that all sexual conducts not criminalized fall on
the same point on the disapproval/approval spectrum, say a shared point of"tolerance" or "approval." Because of a variety of
policy considerations and principles (discussed later on), a State may civilly regulate but not criminalize what it has the pow-
er to crirninalize and may leave free of any regulation what it has the power to regulate.
A society rationally approaches the valuation of different kinds of sexual conduct when it assesses the kinds of conse-
quences to society generally resulting from each kind of conduct. Thus, a society may rationally disapprove of adultery on
the view that it tends to damage or destroy that which produces a *54 range of societal benefits (enduring marriage) and pro-
motes that which produces a range of societal ills (divorce). On the view that these effects are magnified when minor children
are involved, a society may sensibly disapprove even more that particular sub-category of adultery. As for the important point
that our societies have largely repealed laws against adultery and, to a lesser extent, eliminated it as a consideration in divorce
proceedings, that is addressed shortly.
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As already seen, for society, children are a large consequence of man/woman intercourse, or more accurately, a large
complex of large consequences. Putting aside arguments of overpopulation, which vary in rational force from society to soci-
ety, the positive societal consequences of child-bearing include the perpetuation of society itself, the provision of a new
workforce to sustain temporally the current workforce post-retirement, and the common joy that children uniquely provide.
The phrase pe1petuation of society merits this enlargement: Society is more than just its human bio-mass; it is also its culture
(broadly construed) and its institutions. Because that is so, a society perpetuates itself in large measure through the socializa-
tion and acculturation of its children, and this in turn is why a society that values itself may rationally value domestic pro-
creation over large-scale immigration to meet the need for a replacement population. As also already seen, the negative con-
sequences of child-bearing tend to be highly situational; that is, the negative societal consequences' presence or absence, their
greater or lesser extent, depend on the child's situation at birth and thereafter. The American and Canadian experience is that
marriage (ie, married mother father child-rearing) is most highly correlated with the minimal negative societal consequences
of child-bearing. [FN135J The substantial positive social consequences of child-bearing and marriage's success in minimizing
childbearing's negative social consequences means this for societal valuation of different kinds of man/woman sexual con-
duct: A *55 societal judgment placing highest approval on married man/woman intercourse is rational.
Still addressing the rationality of societal valuations of different kinds of sexual conduct- and nothing else - , there is
the comparison of marital man/woman intercourse with same-sex intimate conduct occurring in a setting deemed marriage-
like in all other meaningful respects. When society places a higher, even a substantially higher, value on the marital
man/woman intercourse than on the same-sex sexual conduct, its judgment is rational. That is because, while all other conse-
quences of the two kinds of sexual conduct are deemed equal, only the former conduct provides the substantial societal bene-
fits of child-bearing.
Now turning to society's relative valuations of different types of relationships, there is the comparison of man/woman
marriage with same-sex relationships deemed marriage-like in all other meaningful respects. When a society places a higher
value on man/woman marriage than on the same-sex relationship, its judgment is rational. Indeed, with all other things being
equal, it would seem irrational for society not to value the man/woman marriage more highly. That is because, while all other
components of the two types of relationship are deemed equal and each of the two types of relationships has a sexual conduct
component, the man/woman marriage has the sexual conduct component rationally given highest value by society. And this
conclusion of rationality does not depend on a showing that the sexual conduct component of marriage is the most "im-
portant" component among many, or the most "essential," or the most "central"; the conclusion of rationality depends only
on intimate sexual relations being an important and defining component of each type of the two relationships, and no voices
are heard denying that.
But the key question remains whether these rational conclusions are embedded in our societies' laws. The answer seems
to be yes, and the best supporting example is the law's *56 limitation of marriage to the union of a man and a woman. And
that brings the analysis back to the Goodridge plurality opinion's assertion: "Our laws of civil marriage do not privilege pro-
creative heterosexual intercourse between married people above every other form of adult intimacy and every other means of
creating a family." The simple fact is that the very existence of marriage ("our laws of civil marriage") does "privilege pro-
creative heterosexual intercourse between married people above every other form of adult intimacy." Marriage is a privileged
state (that is exactly why genderless marriage advocates are fighting this war), and "procreative heterosexual intercourse be-
tween married people" is an important part of that privileged state's sexual conduct component, and that part is a fundamental
reason why society privileges marriage. "Procreative heterosexual intercourse between married people" gives society the
substantial benefits of children while minimizing the concomitant societal burdens. As noted earlier, it would be irrational for
society not to "privilege" or value such conduct "above every other form of adult intimacy"; the existence of and privileges
pertaining to man/woman marriage may sensibly be viewed as proofs that, in this respect, society is not irrational.
The plurality opinion, however, seems to offer two proofs in support of its assertion. The first is that the law allows men
and women to marry without inquiring into their procreative intentions and capacities and allows them to stay married with-
out regard to intentions, capacities, or actual procreation. For the plurality opinion, this aspect of the law proves that the law
does "not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy."
That conclusion follows, however, only if there is no other equally plausible reason for the law's reticence at making inquiry
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into marital procreative intentions and capacities. There is such a reason; the next section addresses it. The second proffered
proof is more implicit than explicit but nevertheless important. Not only the Goodridge plurality opinion but other opinions
in the *57 four cases appear to proceed on the assumption that recent changes in the law - for example, the de-
criminalization of adultery, fornication, and sodomy or the move from fault-based divorce (which addresses faulted sexual
conducts) to no-fault divorce- have resulted from application of liberalism's neutrality principle. That principle says that
the State (specifically, its laws) should be neutral among competing conceptions of what is good or right for individuals and
this extends to individuals' choices of sexual conducts. [FN 136] The problem with this assumption is the presence of alterna-
tive explanations, probably more forceful, for the changes in the law. One alternative is that at least some of the changes are
the result of legislative application of liberalism's hmm principle. That principle says that the state should not use coercion
directly or indirectly to discourage conduct not harmful to persons other than those who consent to engage in it. [FN137] And
the harm principle leads readily to another explanation, legislative solicitude for the limitations of law enforcement and adju-
dicative resources. None of the four cases make (nor does it seem possible to make) a showing that the changes in or repeal
of laws regulating various kinds of sexual conducts are the result of the Canadian and American societies' decision, in defer-
ence to the neutrality principle, to cease making all valuations of all sexual conducts except those criminalized. And, as
shown above, it would seem to be irrational for society to abandon its decision, reflected in the limitation of marriage to the
union of a man and a woman, to "privilege procreative heterosexual intercourse between married people above every other
form of adult intimacy."
*58 D. Governmental Inquiry Into Marital Procreative Intentions and Capacities
The opinions in the four cases make use of the fact that marriage law does not provide for governmental inquiry into
marital procreative intentions and capacities, or, in those opinions' formulation, marriage law does not require an intent or
ability to procreate in order to marry or actual procreation to stay married. As already seen, the fact is used as proof that soci-
ety does not place that high a value on marital procreation and that therefore society's high regard for marriage must be
grounded elsewhere, such as in companionship. This is good proof, however, only if there is no equally plausible explanation
for society's decision regarding governmental inquiry into procreative intentions and capacities. Reflection suggests that there
is and that the alternative is not just equally plausible but more plausible, in light of our societies' long-standing traditions
relative to marital privacy.
That our societies have a long-standing sensibility against personalized governmental inquiries into marital procreative
intentions and capacities seems true. Certainly the development of American common law and constitutional law suggests
that the aversion to public and certainly governmental inquiries into an individual's marital procreative intentions and capaci-
ties qualifies as a social norm of some antiquity. Before turning to that development, though, reflection suggests that the
norm has always been reinforced by certain pragmatic (and interrelated) considerations. These include sensible suspicion of
the candour of responses regarding procreative intentions, equally sensible suspicion when it comes to responses about pro-
creative capacities, the scientific (ie, medical) difficulty or impossibility of securing evidence of such capacities, and the costs
associated with that endeavour if attempted.
*59 The development in the law is best exemplified by Griswold v. Connecticut. [FN138] There the United States Su-
preme Court reviewed a statute that prohibited even married couples from possessing contraceptives. [FN139] The Court
struck it down because its very existence created the possibility of governmental investigation into marital procreative inten-
tions:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of con-
traceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. [FN140]
In so ruling, the court saw the right of marital privacy as embedded in a social norm of some antiquity, a norm that in
1965 matured into a judicially recognized fundamental liberty interest protected by the fourteenth amendment's due process
clause and did so exactly because that norm was "so rooted in the traditions and conscience of our people". [FN141]
The role of this social norm relative to man/woman marriage can be seen in this: Regulation of marriage, such as mar-
riage licensure, stops short of any inquiry into procreative intentions and capacities. It seems that neither the advocates of
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genderless marriage nor the four courts could be oblivious to the teachings of Griswold. It is troubling that the courts identi-
fied a supposed societal lack of interest in procreation as the cause of the absence from the marriage laws of a procreation
requirement, rather than identifying the much more plausible and robust explanation readily available: a strong social norm
against *60 government inquiry into marital procreative intentions and capacities.
E. What Marriage Now "Is" and the Personal Perspective
As noted, the four cases speak of the centrality to marriage of companionship; indeed, the Goodridge plurality opinion
asserts that "the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children,
... is the sine qua non of civil marriage." [FN142J To the extent the reason for so speaking was to show that procreation is not
important to the institution of marriage, the matter has already been addressed. But something else may be going on here. The
expressions in the four cases appear highly descriptive of what the literature refers to as the close personal relationship theo-
ry of marriage. Sociologists have developed the theory as a way of unifying their analysis of a range of dyadic relationships,
the theory's popularisers have advanced some core concepts as a model of what, for the good life, marriage ought to be, and
there is no doubt that many married couples adopt the model as theirs. [FN143J Nor is there any doubt that the theory is con-
genial (perhaps indispensable [FN144J) to the genderless marriage position. But no *61 responsible observer has asserted that
the close personal relationship model has become the dominant or even the majority model in our societies (meaning the real
world, not the "world" created by television and cinema). [FN145J The four cases are undoubtedly accurate in their general
references to large and perhaps accelerating societal changes affecting marriage, but if the juxtaposition of those references
with language evocative of the close personal relationship theory of marriage is meant to teach that the latter constitutes what
marriage now "is," the teaching is dubious. If, on the other hand, that evocative language signals judicial "constitutionaliza-
tion" of that particular social theory, then the phenomenon is best addressed in chapter five's treatment of the role of compet-
ing social theories.
Finally, a central feature of the language from the four cases, quoted earlier, is its shift to the personal perspective- "the
personal hopes, desires and aspirations", "the professed commitment of two individuals", and the "deeply personal commit-
ment of the marriage partners to one another". The societal interest and role in all this couple-centeredness is only "public
celebration" of it, that is, society is an important guest at the wedding. But a wedding is not a marriage. A marriage seems
better understood as participation in and engagement with a rich, complex, influential social institution whose meanings and
deep logic seem best accounted for primarily by reference to societal interests, not individual hopes and desires. A fundamen-
tal and recurring theme of equality jurisprudence across States is the centrality of the governmental interest(s) served by the
law *62 impugned for treating people differently; but for that centrality, the myriad (nearly all of them) laws that draw lines
and distinguish between individuals and groups of individuals must stand largely defenceless before the core concepts of
equality. Yet, when speaking of civil marriage, the shift in judicial focus to the wedding and to other manifestations of the
personal perspective and away from society's interests embedded in and served by the institution of marriage of necessity
diminishes the force of those societal interests in the equality analysis. The four cases clearly reflect that shift of focus, and
that shift may at least partially explain the lack of judicial attention, also clearly reflected, to the societal (governmental) in-
terests served by the private welfare purpose of marriage and by the privileged marital sexual conduct.
F. Conclusion
In sum, the four cases elide the States' argument from one premised on marriage as society's mechanism for the regula-
tion and amelioration of the consequences of passionate and procreative heterosexual intercourse (children) to one premised
on the silly view of marriage as a mechanism mandating procreation. The majority opinions do not acknowledge the elision
and, consequently, do not seek to justify it, and no justification independently presents itself. The indirect engagement with
the States' argument as actually advanced- the engagement resulting from implementation of the two facets of the common
strategy - is deficient because of fundamental flaws in the strategy's conception; the private welfare purpose of marriage
retains vitality because the tide of heterosexual attraction and procreative power in our societies remains powerful, and be-
cause, in the context of procreation, man/woman marriage continues fundamentally different from same-sex couple relation-
ships, as shown by adequate consideration of adoption and ART. The Goodridge plurality opinion's talk of contraception -
its one direct engagement with the States' argument as actually advanced - is far from adequate. Likewise inadequate are the
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*63 cases' bases for suggesting that the law accords no preference for marital sexual relations, above all other kinds of sexual
conducts; for suggesting that aversion to governmental inquiry into marital procreative intentions and capacities "proves"
how little important procreation, as a component of marriage, is to society; for intimating that, as a matter of fact, the close
personal relationship model of marriage must be taken as what marriage now "is"; and for allowing a shift to the personal
perspective of the marriage (or, more accurately, wedding) experience to distort, for purposes of equality analysis, the role of
the governmental interests advanced. Aesthetically, then, in the context of the States' procreation argument, the judicial per-
formance disappoints, and not a little.
The more important question, of course, is whether the defects in the judicial performance are material in the final reso-
lution of the genderless marriage issue. In a jurisdiction willing to apply the traditional rational basis test to that resolution,
the answer would clearly be yes; the logic, the rationality, of the private protective purpose of society's deep logic of marriage
cannot be gainsaid; society can rationally value marital sexual relations above all other kinds of sexual conduct; and even the
fit between governmental means and governmental ends (irrelevant for a genuine rational basis analysis [FN146l) becomes
much more precise when viewed against the backdrop of society's aversion to governmental inquiry into marital procreative
intentions and capacities. Had Baker been true to Vermont's pre- and post-Baker equality jurisprudence, and had Goodridge
been true to the equality jurisprudence it claimed to be applying, the States' procreation argument, as actually made, would in
itself have sustained man/woman marriage. But all four cases applied in fact a form of heightened scrutiny. In a context *64
of heightened scrutiny, the private protective purpose of society's deep logic of marriage becomes one among several im-
portant foci.
CHAPTER FOUR
THE RELATIVE VALUE OF DIFFERENT CHILD REARING MODES
In the four cases, the defenders of man/woman marriage asserted a difference between that kind of marriage and gender-
less marriage that is material for purposes of equality analysis, a difference premised on readings of the social science data.
The asserted difference is that married mother/father child-rearing is the optimal child-rearing mode, [FN1471 as suggested
by correlations between that mode and outcomes deemed crucial for a child's (and hence society's) well-being. [FN148]
Those outcomes include physical, mental, and emotional health and development; academic performance and levels of at-
tainment; and avoidance of crime and other forms of self- and other-destructive behaviour such as drug abuse and high-risk
sexual conduct. These defenders asserted that the credible social science studies *65 demonstrate that the outcomes correlated
to married mother/father child-rearing are superior to those measured for the children of same-sex couples and further assert-
ed that the studies suggesting no material differences in the outcomes of the two child-rearing modes are scientifically sus-
pect (and, hence, that a rational decision-maker could and would decline to premise judgment on those studies). [FN149]
This argument was made against a background of consensus in the social sciences that the outcomes of married mother/father
child-rearing are significantly superior to those of the other long-present modes, including unmarried mother/father, married
parent/step-parent, cohabiting parent, single mother, and single father. [FN150]
*66 In resolving the child-rearing issue against the backdrop of the optimal-child-rearing argument, the four courts took
various tacks, but none - except the dissenters in Goodridge - addressed the merits of the argument from the social science
data. Rather, the courts found other routes to a conclusion of"no difference," or relied on the no-downside argument, or both.
The following section evaluates the quality of those other routes. The section after that evaluates the no-downside argument.
Before proceeding, however, it merits noting that this article does not independently assess the argument from the social
science data. What is important and telling here is the four courts' avoidance of that argument. Goodridges' avoidance seems
especially telling because of the thorough review of the argument in the Sosman J. and Cordy J. dissents. This long quote
from the Sosman J. dissent is merited because of its success in capturing the essence of the argument in the context of equali-
ty jurisprudence:
Conspicuously absent from the court's opinion today is any acknowledgment that the attempts at scientific study
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of the ramifications of raising children in same-sex couple households are themselves in their infancy and have so far
produced inconclusive and conflicting results .... [S]tudies to date reveal that there are still some observable differ-
ences between children raised by *67 opposite-sex couples and children raised by same-sex couples .... Interpretation
of the data gathered by those studies then becomes clouded by the personal and political beliefs of the investigators,
both as to whether the differences identified are positive or negative, and as to the untested explanations of what might
account for those differences. (This is hardly the first time in history that the ostensible steel of the scientific method
has melted and buckled under the intense heat of political and religious passions.) ... [T]he most neutral and strict ap-
plication of scientific principles to this field would be constrained by the limited period of observation that has been
available .... The Legislature can rationally view the state of the scientific evidence as unsettled on the critical question
it now faces: are families headed by same-sex parents equally successful in rearing children from infancy to adulthood
as families headed by parents of opposite sexes? [FN 151]
A. Married Mother/Father Child-Rearing as the Optimal Mode
The "conspicuously absent" reference just quoted is valid; neither the Goodridge plurality nor the concurring opinion
addresses the adequacy-of-studies issue at all, despite the attention it received in the Sosman J. and Cordy J. dissents.
[FN152] Rather, the Goodridge plurality opinion shifts the asserted State interest from protecting the optimal child-rearing
mode (man/woman marriage) to "[p]rotecting the welfare of children", [FN1531 and, on that shifted basis, argues that limit-
ing marriage to opposite-sex couples does *68 not promote the present welfare of all children, is contrary to the Common-
wealth's policy and practice of helping children whatever their family situation, and "penalize[ s] children by depriving them
of State benefits because the State disapproves of their parents' sexual orientation." [FN154]
This analysis is valid to the extent that protecting the optimal child-rearing mode (man/woman marriage) is the same
governmental endeavour as "protecting the welfare of children" (as the plurality opinion uses that phrase). But this is not at
all clear. Reflection suggests that the two endeavours are substantially different. Protecting the present welfare of individual
children found in varying circumstances is, in the way the plurality opinion addresses it, the provision of public assistance of
some form or another to individuals (or their caretakers). By contrast, protecting the optimal child-rearing mode (man/woman
marriage) entails the protection, sustenance, and perpetuation of a social institution. As explained in detail in this chapter's
section B, a social institution is something far different than the sum of the individuals affected by it; rather, social institu-
tions "are constituted by complex webs of social meaning." [FN1551 That in turn suggests that protection involves preserva-
tion of meanings fundamental or core to the institution (an idea also developed in section B below). Thus understood, the two
different governmental protective endeavours are just that, different. The plurality opinion disappoints in that it provides no
demonstration of the equivalency or overlap of the two endeavours and thus provides no justification for its shift from one to
the other. Nor does the difference the plurality opinion ignores seem much diminished by the common notion of "child wel-
fare" even broadly conceived; that is because the endeavour to protect the optimal child-rearing mode, with its institutional
focus, looks primarily to improve the private welfare *69 received by future generations, whereas the personalized protective
endeavour made the basis of the plurality opinion's argument is an exercise in the present provision of public welfare.
[FN1561
The Baker majority opinion addresses the argument from the social science data in this way. First it acknowledges that it
"is conceivable that the Legislature could conclude that opposite-sex partners offer advantages [over same-sex couples] in
this area [ie, child-rearing], although we note that child-development experts disagree and the answer is decidedly uncertain."
[FN1571 It then argues, however, that Vermont law had already rejected the assertion that married mother-father child-
rearing is superior to same-sex couple child-rearing. For proof, the opinion points to the state's allowance of adoption by
same-sex couples. [FN158llt therefore concludes that the State's asserted interest in protecting marriage as the optimal child-
rearing mode is "patently without substance." [FN159l The Goodridge plurality opinion makes the same argument but with a
subtle but important shift added; it speaks not of the relative value of the two modes of child-rearing (the State's point) but
only whether the studies show that children are "not harmed" in the same-sex couple mode. [FN1601 The main argument
used in both opinions, however, appears logically flawed at its foundation; allowance of adoption cannot *70 be equated with
a legislative assessment that all child-rearing modes into which a child may be adopted are equal :
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The eligibility of a child for adoption presupposes that at least one of the child's biological parents is unable or
unwilling, for some reason, to participate in raising the child. In that sense, society has "lost" the optimal setting in
which to raise that child- it is simply not available. In these circumstances, the principal and overriding consideration
is the "best interests of the child," considering ... the options that are available for that child .... The Legislature may
rationally permit adoption by same-sex couples yet harbor reservations as to whether parenthood by same-sex couples
should be affirmatively encouraged to the same extent as parenthood by the heterosexual couple whose union pro-
duced the child. [FN161J
The argument appears irrefutable.
Halpern's method of avoiding the optimal-child-rearing-mode argument is also problematic in that the opinion relies on
a burden-shifting approach not well suited to the task at hand. [FN162J The issue of burden shifting, however, is better dealt
with in the context of the no-downside argument. Because EGALE relies exclusively and Halpern relies primarily on that
argument, and because Goodridge also invokes it, this article addresses it next.
*71 B. The No-Downside Argument: Social Institutions as Webs of Meanings
1. Practical Aspects of the No-Downside Argument
The no-downside argument engages equality analysis in two different ways. One, it can be an argument for distributive
justice premised on "the right to equal concern and respect," or, more specifically, a component of that right known as "the
right to equal treatment." This particular argument is analysed in detail in chapter six section A. Two, the no-downside argu-
ment engages the strength of the State's interests relative to man/woman marriage, with the State asserting that those interests
are both substantial and vulnerable, while the genderless marriage advocates assert the contrary on both points. These advo-
cates argue invulnerability by way of the no-downside argument.
This understanding has at least one practical implication. It pertains to "burden of proof." The argument for distributive
justice/right to equal treatment would likely leave any burden of proof on the claimant. [FN163] The State, however, may be
assigned the burden of proof relative to the strength of the government's interests. Canadian equality jurisprudence appears to
limit consideration of the strength of the government's interest(s) to the section 1 analysis, where "the government's burden ...
is to justify a breach of human dignity." [FN164] The Halpern court considered this downside argument from the Attorney
General:
Changing the definition of marriage to incorporate same-sex couples would profoundly change the very essence
of a fundamental societal institution. The AGC points to no-fault divorce as an example *72 of how changing one of
the essential features of marriage, its permanence, had the unintended result of destabilizing the institution with unex-
pectedly high divorce rates. This, it is said, has had a destabilizing effect on the family, with adverse effects on men,
women and children. Tampering with another of the core features, its opposite-sex nature, may also have unexpected
and unintended results. [FN165]
But the court rejected this as "speculative", that is, as not supported by "cogent evidence" establishing the feared future
adverse effects. [FN166J And in the United States, heightened scrutiny (although not the rational basis test) imposes a burden
on the government to justify its limitation, including to establish the value and vulnerability of its interest(s) at stake.
[FN1671 Although ostensibly applying the rational basis test, the Goodridge plurality opinion says, in the no-downside argu-
ment context, that the government "has offered no evidence that forbidding marriage to people of the same sex will increase
the number of couples choosing to enter into opposite-sex marriages in order to have and raise children", and, accordingly,
there is "no rational relationship between the marriage statute and the ... goal of protecting the 'optimal' child rearing unit."
[FN168J
These intimations of a requirement that the government produce "evidence" or "cogent evidence" or else lose the no-
downside argument appear to be unsound, especially when measured against policy considerations. The policy argument *73
would proceed along these lines: It is not at all clear - and the courts provide no clarity on - just what might qualify as
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"cogent evidence" of the adverse future effects of a genderless marriage mandate; the very idea of genderless marriage is,
after all, new in our societies. Whatever is said about future effects, whether as beneficial or inimical, must be "speculative."
It makes little sense to resolve an issue of such enduring societal importance by assigning one side or the other the "burden"
of "proving" a future event; whichever party is so assigned (since all either side can do is "speculate") thereby becomes the
losing party and thereby the fate and future of society's most vital institution is determined. Such a weighty determination
should turn on something more substantial than application of a generic rule of burden shifting. That determination merits the
best thinking that can be brought to bear on the likely consequences of the redefinition of civil marriage.
This policy argument has much to commend it. A generic burden-of-proof approach seems too thin a basis for doing
what that approach does in Halpern and Goodridge -justifying avoidance of a thorough analysis of the likely consequences
of the redefinition of marriage. Before turning to such an analysis, however, a few words are merited regarding the burden-
of-proof problem in the context of the social science data and various child-rearing modes.
As noted earlier, Halpern uses a notion of burden-shifting to avoid the merits of the social science data/child-rearing
modes issue. The opinion's language on this point merits quotation:
[A] law that restricts marriage to opposite-sex couples, on the basis that a fundamental purpose of marriage is the
raising of children, suggests that same-sex couples are not equally capable of childrearing. The AGC ... takes the posi-
tion that social science research is not capable of establishing the proposition one way or another. In *74 the absence
of cogent evidence, it is our view that the objective is based on a stereotypical assumption that is not acceptable in a
free and democratic society that prides itself on promoting equality and respect for all persons. [FN169J
The central difficulty with this analysis is its failure to acknowledge fairly why the "social science research is not capable
of establishing the proposition one way or another." As the Sosman J. dissent makes clear in Goodridge, the fundamental
reason for the unresolved dispute is that "the most neutral and strict application of scientific principles to this field would be
constrained by the limited period of observation [of same-sex couple child-rearing] that has been available." [FN1701 In other
words, it is the very pace of the genderless marriage advocates' political and legal march that leaves contested whether same-
sex couple child-rearing - like all other modes - is less successful in rearing children from infancy to adulthood than is
married mother/father child-rearing. It seems anomalous, to say the least, for a court in those circumstances to declare the
party not responsible for the uncertainty, rather than the responsible part, the "loser" exactly because of the existence of the
uncertainty. Nor does Halpern's analysis gain genuine traction by invoking the notion of a "stereotypical assumption." The
assumption that married mother/father child-rearing is the optimal mode - relative to all other modes - is premised not on
some demeaning view of gay men and lesbians but on the social science data showing the superior outcomes for married
mother/father child-rearing relative to every other mode where circumstances have allowed adequate study (that is, every
other mode except same-sex couple), and that includes unmarried mother/father, married parent/step-parent, cohabiting par-
ent, single mother, and single father. Halpern's use of a burden-shifting tactic in its approach to married mother/father child-
rearing is simply inadequate.
*75 2. The Likely Consequences of the Redefinition of Marriage
"Marriage is a vital social institution." [FN171l So begins Goodridge. The opinions in that case go on to refer to institu-
tion in the context of marriage over 80 times. Halpern's references exceed 40; EGALEs, 35. Yet none of the cases evidences
any clear conception of what constitutes a social institution and, hence, any clear conception of what, if anything, changes an
institution and of what the consequences of such changes might be.
This article presents for consideration such conceptions. It presents the view that "[s]ocial institutions are constituted by
complex webs of social meaning" [FN172] and that therefore they are changed by alternations in the social or public mean-
ings that in large measure constitute them. It further presents the view that a social institution supplies to the people who par-
ticipate in it what they should aim for, dictates what is acceptable or effective for them to do, and teaches how they must re-
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late to other members of the institution and to those on the outside. [FN1731 Thus, fundamental *76 change in the institution
changes what its members think of themselves and of one another, what they believe to be important, and what they strive to
achieve.
Over the past forty years, social anthropologists and other observers have explored the relationship of public meaning
and social institutions. [FN1741 Cere's recent summary of the literature states that
institutions are more than instrumental mechanisms for the production of goods and services for individuals. So-
cial institutions are constituted by complex webs of social meaning .... The reason for the gravity of debates over the
public meaning of institutions lies in the fact that these social institutions are constituted, in large part, by their social
meanings. Change the constitutive meaning of an institution and you transform its social reality. [FN1751
He also draws the implications of these insights for the institution of marriage in the context of the genderless marriage
issue:
*77 Meaning is not nominal or incidental to the life of social institutions; it constitutes their life. This helps to ac-
count for the highly charged nature of conflicts over the core public meanings and purposes of institutions like mar-
riage. In this sense, the politics of definitional discourse is not just a quibble over words. Definitions matter. They con-
stitute and define authoritative public knowledge. We "define" social reality into existence and we define it out of ex-
istence .... Changing the public meaning of an institution changes the institution. [The change] inevitably shapes the
social understandings, the practices, the goods, and the social selves sustained and supported by that institution.
[FN1761
Much has been and can be said about public meanings influencing, constituting, social institutions, which in turn influ-
ence, even define, the human participants. [FN 1771 All of that can be said, of course, about both man/woman marriage as an
institution and genderless marriage as an institution. The point is the high likelihood that an institution defined at its core as
the union of a man and a woman (with all that limitation implies and entails regarding purposes and activities) will intend and
sustain "the social understandings, the practices, the goods, and the social selves" in large measure not intended or sustained
by an institution defined at its core as any two persons in a close personal relationship.
Although seemingly unaware that social institutions are constituted in large measure by social meanings, the courts in the
four cases appear to assess accurately the magnitude of the *78 change they are effecting. EGALE states that "the relief re-
quested, if granted, would constitute a profound change to the meaning of marriage, and would be viewed as such by a signif-
icant portion of the Canadian public, whether or not it supported the change." [FN1781 The lower court in the Halpern case
expressed the same view, [FN1791 and the Goodridge plurality opinion stated: "Certainly our decision today marks a signifi-
cant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for
centuries." [FN1801 But juxtaposed with these assessments of"profound" and "significant" change of meaning are assertions
that the genderless marriage decisions do not and will not change the institution of marriage. Thus, the Goodridge plurality
opinion says, immediately after the sentence just quoted: "But it [the court's decision] does not disturb the fundamental value
of marriage in our society." [FN 1811 And EGALE and Halpern, with their adoption of the no-downside argument, manifest a
similar view. For example, in Halpern, the Attorney General argued that "[ c ]hanging the definition of marriage to incorporate
same-sex couples would profoundly change the very essence of a fundamental societal institution", [FN1821 but the court
rejected this as "speculative." [FN1831
These judicial assertions of "no change" in the institution of marriage, in light of the acknowledged "profound" and "sig-
nificant" change in the public meaning of marriage, are contradicted by the social anthropology summarized above. And the
argument advanced by Halpern and Goodridge to buttress the *79 "no change" assertion is unpersuasive. The Goodridge
plurality opinion presents as proof of "no change" the intentions of the same-sex couples then before the court: "Here, the
plaintiffs seek only to be married, not to undermine the institution of civil marriage", [FN1841 and: "That same-sex couples
are willing to [enter civil marriage] ... is a testament to the enduring place of marriage in our laws and in the human spirit."
[FN1851 Halpern takes the same tack: "The Couples are not seeking to abolish the institution of marriage; they are seeking
access to it." [FN 1861 Yet the probative value of such intentions and willingness is not at all apparent; it seems nonsensical
that the intentions of a handful of people could insulate a vast social institution constituted by its public meanings from
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change resulting from a profound alteration in those meanings. Moreover, the courts' own argument can be turned against
them; a not insubstantial portion of those urging genderless marriage do so with the stated intention and willingness "to un-
dermine the institution of civil marriage." [FNI871
Although manifesting a troubling lack of understanding that alterations of its public meanings change a social institution,
the four cases repeatedly evidence an awareness of law's "expressive," or "educative," function [FNI88J and, indeed, make
that *80 function a lynchpin of many arguments. For example, the Goodridge plurality opinion speaks of an unchanged defi-
nition giving a "stamp of approval" to stereotypes. [FNI89J And Halpern repeatedly speaks of the definition of man/woman
marriage "perpetuating" "views" about the capacities of same-sex couples. [FN190J Yet the acknowledged educative func-
tion of law seems to reinforce the lessons of social anthropology regarding civil institutions as webs of significance; law has a
purpose and a power to preserve or change public meanings and thus a purpose and a power to preserve or change social in-
stitutions. More directly to the present context, the social institution of marriage is not at all immune but rather is open to
fundamental change resulting from a profound change in the law's definition of marriage. The four cases manifest a quick
readiness to acknowledge law's educative and hence society-changing power when some preferred value is being advanced,
while manifesting a stubborn refusal to acknowledge that same power when its use places the goods of man/woman marriage
at risk. It may or may not be a proper judicial role to weigh the societal costs against the societal benefits flowing from a pro-
found change in the public meanings of marriage, but the four cases' fundamental inconsistency of approach to benefits and
costs cannot qualify as a defensible judicial performance.
In light of the understandings set out above, no reason is apparent why a rational and prudent legislator, [FNI9IJ consid-
ering *81 acceptance or rejection of the redefinition of marriage and balancing resulting societal risks and benefits, could not
reasonably adopt the following line of thinking: The goods of marriage do appear to be at risk. It is difficult to see how the
redefinition can avoid effecting a profound alteration in the institution of marriage; that redefinition would seem destined to
unavoidably transform the institution from the residence of the broad, rich, complex meanings comprising the communal and
conjugal tradition into the exclusive residence of the "close personal relationship" model of marriage, a model of "a relation-
ship which has been stripped of any goal or end beyond the intrinsic emotional, psychological, or sexual satisfaction which
the relationship brings to the individuals involved." [FNI92J What must then be lost is the social institutional support for all
that the older tradition embraces beyond the scope of a "close personal relationship," and that appears to be much; indeed, it
appears to be most of
the fundamental facets of [traditional] conjugal life: the fact of sexual difference; the enormous tide of heterosex-
ual desire in human life, the massive significance of male female bonding in human life; the procreativity of hetero-
sexual bonding, the unique social ecology of heterosexual *82 parenting which bonds children to their biological par-
ents, and the rich genealogical nature of heterosexual family ties. [FNI93J
The legislator might continue the line of thinking: Social institutions in general and the institution of marriage in particu-
lar supply understandings of what people should aim for, dictate what is acceptable or effective for them to do, and teach how
they must relate to other members of the institution and to those on the outside; institutions shape what its members think of
themselves and of one another, what they believe to be important, and what they strive to achieve. [FN I941 The institution of
genderless marriage will support the narrow close personal relationship model of marriage, and such support will shape cor-
responding aspirations in the children now and in each generation of children hereafter. That shaping may well not include,
for example, aspirations for married mother/father child-rearing for their own children because the public meanings of mar-
riage will not permit identifying that optimal mode as distinctive.
The legislator might continue the line of thinking: [FNI95] There are problems with the counter-argument that resource-
ful people could still find ways to communicate to the next generations of children the unique goods of man/woman marriage
and their value. Certainly some might; by private educational endeavour it is possible for families or other groups to establish
a sort of linguistic enclave in the heart of a community that has no comprehension of what matters to them. But to the degree
that members of the enclave were to adopt the speech of the community, they would lose the power to name and in large part
the power to discern what once mattered to their forbears. To that *83 degree their forbears' ways would seem implausible to
them, and probably even unintelligible. The bare possibility that people could with considerable difficulty and sacrifice main-
tain the meanings for their children of man/woman marriage does not go very far to diminish the risks that enacting gender-
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less marriage presents. [FN 1961 There are thus considerable costs of appropriating a primary educative instrument of society,
the institution of marriage, in the ways that adoption of genderless marriage entails.
To the extent the hypothetical legislator's line of thinking about likely consequences, just set out, is rational, it under-
mines a central pillar supporting the ultimate holdings in the four cases. That central pillar, built by assertion, not argument or
analysis, is that there will be no costs to society, no downside, as a consequence of the transformation of the institution of
marriage resulting from the alteration of a core public meaning of marriage.
Another consequence merits consideration, but this one appears to be more than just likely; it seems highly probable in
light both of the understandings of social institutions as constituted by complex webs of social meaning and of the move from
man/woman marriage to genderless marriage as a profound *84 change of meaning. Halpern says that the claimants in that
case "are not seeking to abolish the institution of marriage; they are seeking access to it." [FN 1971 This language reflects a
commonly held misunderstanding. It is that same-sex couples can enter the institution of marriage as it has existed to the pre-
sent; in other words, that the act of changing the public definition of marriage will allow same-sex couples to enter the privi-
leged and "vital civil institution" previously enjoyed only by opposite-sex couples, who will continue to enjoy it. This quali-
fies as a misunderstanding in light of the ideas examined above: The very act of redefmition will radically transform (not all
at once, of course, but over time and probably quickly) the old institution and make it into a profoundly different institution,
one whose meanings, value, and vitality are speculative. Same-sex couples look to the law to let them into the privileged in-
stitution, and the law (as in the four cases) may want to, but it cannot; it can only give them access to a different institution of
different value. [FN1981 Thus, the four cases proceed on an assumption not easily defended, that they can do what they most
probably cannot do; just so, any magnanimity motivating those cases' holdings is fundamentally false. And there is another
aspect of this same consequence, one affecting already married opposite-sex couples. *85 Redefinition and no act of their
own removes them from the institution they voluntarily entered (man/woman marriage) into a markedly different one. To the
extent that institutions are constituted by social meaning, and to the extent that the law dictates the social meaning of civil
marriage, to redefine marriage as the union of any two persons is not to pull gay men and lesbians into marriage as our socie-
ties now know it but to pull married man/woman couples into what the media calls imprecisely "gay marriage" and this arti-
cle calls genderless marriage.
To the extent the understanding of social institutions presented here is correct, the no-downside argument advanced by
EGALE, Halpern, and Goodridge- an argument that ignores that understanding- is materially flawed.
CHAPTER FIVE
COMPETING THEORIES OF GENDER AND OF ADULT RELATIONSHIPS
Whatever flaws may mar other aspects of his philosophy of law, Holmes manifested a particular genius for identifying
the intellectual currents of his own age as they flowed through and shaped (properly or improperly) judicial decisions. In his
first opinion for the United States Supreme Court, he cautioned against the tendency of judges, consciously or unconsciously,
overtly or covertly, to read social theories into the constitution: "Otherwise a constitution, instead of embodying only rela-
tively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of
a particular set of ethical or economical opinions ... " [FN1991 Even more pithy was his statement that the Constitution did not
"enact Mr. Herbert Spencer's Social Statics", [FN200J a book embodying the *86 social Darwinism that gained considerable
currency in American constitutional law under the mantra "freedom of contract." [FN20 11
Two contemporary intellectual currents are discernible in the four cases and appear to be shaping judicial conclusions
relative to genderless marriage. The first is the social constructionist approach to gender; the second, the close personal rela-
tionship theory of marriage. Social constructionist thought is broad and variegated. [FN2021 This article concerns itself only
with the versions of that thought that sustain this conclusion: The law must accept the absence - as between man and wom-
an - of any inherent (or essential) differences that might sustain any reference to gender in the marriage laws. Such a con-
clusion, although arising from feminist thought, if accepted clearly sustains a same-sex couple's equality claim and mandates
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genderless marriage. Such versions are hereafter referred to in the aggregate as radical social constructionism.
A. Radical Social Constructionism
Radical social constructionism provides a theory of gender and does so generally in opposition to its essentialist rival.
The very word gender is caught up in the dispute between the two positions. (This article uses a meaning generally accepted
before the word became so embroiled: gender means the condition of being female or male.) Both the essentialist and the
radical social constructivist acknowledge (although not in the same way) the biological differences between male and female
humans and also acknowledge (again, not in the same way) the reality of social influences in individual development, includ-
ing gender identity. Essentialism teaches that gender is an essential characteristic of *87 individual identity and that inherent,
or natural, differences between the sexes extend beyond the mere differences in body parts to certain differences of cognition
and emotion that are expressed socially, and often differently from culture to culture. Radical social constructionism, at its
core, holds that everything that our language codes as male or female, masculine or feminine, and especially most everything
that really matters for human experience and growth, is socially and culturally constructed. [FN203J Under this approach, a
sharp distinction is often made between sex or sexuality, on one hand, and gender, on the other, with sex referring to the bio-
logical distinction between females and males, and gender referring to "the social meanings and value attached to being fe-
male or male in any given society, expressed in terms of the concepts femininity and masculinity." [FN2041
Adherents to the radical social constructionist position see the man/woman binary as socially constructed, as facilitative
in nearly all cultures of unequal power relationships, and as harmful to the individual's fullest human development, and to a
greater or lesser extent they understandably take it as their project to deconstruct the 'gendered' differences between men and
women. [FN205J It is because they see marriage as preserving the man/woman binary that at least some of them wish to de-
construct *88 it. [FN206J Some of their deconstructive strategies include advocating that law not make gender-based distinc-
tions and that law redefine civil marriage from a man/woman relationship to a person/person relationship. [FN2071 Gender-
less marriage advocates have tended to use radical social constructionist conclusions. [FN208l This is understandable; as
noted, if there are no differences between men and woman that matter (or should matter) in the eyes of the law, there is no
defensible basis under equality jurisprudence for defining civil marriage as a man/woman relationship rather than a per-
son/person relationship. In any event, radical social constructionism has found acceptance by a number in the academy and
among portions of other elites such as the media and the law.
The concurring and dissenting opinion in Baker (hereafter referred to as the c/d opinion) shows perhaps the most likely
way that radical social constructionism can work in judicial resolution of the genderless marriage issue. In support of
man/woman marriage, Vermont's Attorney General raised a number of rationales, including the state's "interests in 'promot-
ing child rearing in a setting that provides both male and female role models,' ... [and] 'bridging differences' between the
sexes". [FN209J Regarding the former, the majority opinion counters with the argument, noted above, based on same-sex
couples' legal eligibility to adopt but is silent regarding the latter. The c/d opinion's approach is much different. Early on it
argues that *89 man/woman marriage constitutes sex-based discrimination to the extent it serves no "valid purpose" but is
"rather ... a vestige of sex-role stereotyping that applies to both men and women ... even if it applies equally to men and
women." [FN2IOJ The opinion then reviews the legal history of civil marriage in Vermont, emphasizing the law's earlier un-
equal treatment of husband and wife (including the wife's confinement to the "thraldom of the common law" [FN211]) and
the reforms leading to "the partners to a marriage [today being] equal before the law." [FN212] The opinion then, at page
258, sets up the key issue in this way: "The question now is whether the sex-based classification in the marriage law is simp-
ly a vestige of the common-law unequal marriage relationship or whether there is some valid governmental purpose for the
classification today." Next the c/d opinion at some length describes and characterizes the state's important arguments; for
clear understanding of what is going on in the opinion, the language requires quotation in full:
In the first category, the State asserts public purposes-uniting men and women to celebrate the "complementari-
ty" (sic) of the sexes and providing male and female role models for children-based on broad and vague generaliza-
tions about the roles of men and women that reflect outdated sex-role stereotyping. The State contends that (1) mar-
riage unites the rich physical and psychological differences between the sexes; (2) sex differences strengthen and sta-
bilize a marriage; (3) each sex contributes differently to a family unit and to society; and (4) uniting the different male
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and female qualities and contributions in the same institution instructs the *90 young of the value of such a union. The
State relies on social science literature, such as Carol Gilligan's In a Different Voice: Psychological Themy and Wom-
en's Development (1982), to support its contention that there are sex differences that justify the State requiring two
people to be of opposite sex to marry. [FN213l
The c/d opinion then proceeds with these counter-arguments: Man/woman differences are "a valid argument for women's
full participation in all aspects of public life" but the "goal of community diversity has no place ... as a requirement of mar-
riage." [FN214l Apparently this is so because, even accepting as true "that the female voice or point of view is sometimes
different from the male," these differences "are not necessarily found in comparing any given man and any given woman"
and whatever differences are present may well be "more related ... to other characteristics and life experiences" than to their
sex. [FN215l The State's view of things is nothing more than "sex stereotyping ofthe most retrograde sort." [FN216J And
this conclusion leads, of course, to the further conclusion that the state can have no valid "interest in 'instructing the young of
the value ofuniting male and female qualities."' [FN2171 The c/d opinion's final summation is this: The state's justifications
supporting man/woman marriage are "based on impermissible assumptions about the roles of men and women"; the classifi-
cation inherent in man/woman marriage "is a vestige of the historical unequal marriage relationship that more recent legisla-
tive enactments and our own jurisprudence have unequivocally rejected"; and therefore the protections conferred *91 by
Vermont's equality provision "cannot be restricted by the outmoded conception that marriage requires one man and one
woman, creating one person - the husband." [FN218J
Something is missing from this opinion, something without which the opinion is hardly intelligible. That something is an
express, straight-forward statement of the core legal conclusion of radical social constructionism - there are no essential or
inherent differences between men and women that can rationally matter in law-making - followed up with the unavoidable
conclusion of equality jurisprudence - therefore, there is no rational basis for limiting civil marriage to a man and a woman
rather than defining it as the union of any two persons. That missing something is not supplied by the opinion's references to
the law reforms (the "more recent legislative enactments and our own jurisprudence") leading to "the partners to a marriage
[today being] equal before the law." [FN219J That is because it does not rationally follow that a law reform designed to cre-
ate greater equality between a man and a woman in the marriage relationship is premised any more on the core conclusion of
radical social constructionism than it is on the essentialism underlying the notion of "complementarity." In other words, it is
no more or less likely that a typical Vermont legislator voted to modify laws regulating women's marital rights because she
thought it "fair" and/or a way to improve the interaction of essentially different men and women in the "complementarity" of
the marriage relationship than it is likely that she so voted because of some understanding and acceptance of radical social
constructionism. [FN220J The c/d opinion requires the *92 reader to assume the legislative and judicial adoption of radical
social constructionism by the very laws that the opinion then uses to "prove" that the adoption has in fact taken place and
therefore must guide resolution of the genderless marriage issue.
The interesting question is why the c/d opinion fails or refuses to expressly set out the core legal conclusion of radical
social constructionism and thereby render the opinion intelligible. Two possible answers suggest themselves: The author was
so taken with that social theory that she failed to understand that many citizens are not and that education and persuasion thus
remain necessary. Or the author assessed the political climate as unfavourable to the social theory and therefore chose not to
jeopardize the theory's legal "ends" or conclusion by exposing the "means" to that climate's rigours. Both answers, however,
suggest a serious defect in judicial performance. The former suggests a lack of rigorous thought; the latter, a breach of any
defensible boundary of judicial activism and hence to a violation of fundamental notions of separation of powers. Or, in
Holmesian terms, either the c/d opinion evidences a failure to understand that Vermont's Common Benefit Clause had not
previously "evolved" to the point of"enacting" Ms Judith Butler's Gender Trouble or it chooses to effect that enactment as an
exercise of raw political power used covertly.
The United States Supreme Court avoided these mistakes in a decision that both the State of Vermont and the c/d opinion
expressly relied on, United States v. Virginia. [FN221J The Supreme Court found Virginia's maintenance of an all-male mili-
tary academy violative of federal equality jurisprudence. The State attempted to justify the school's exclusion of women by
reference to the extraordinarily rigorous, almost brutal, nature of the school's unique educational experience, and thereby po-
tentially raised a question regarding relevant inherent (or essential) differences between men and women. What is important
for *93 present purposes is this language from the Supreme Court's opinion:
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"Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but
not for denigration of the members of either sex or for artificial constraints on an individual's opportunity. Sex classifi-
cations may be used to ... advance full development of the talent and capacities of our Nation's people. But such classi-
fications may not be used, as they once were, ... to create or perpetuate the legal, social, and economic inferiority of
women. [FN222]
The court was true to this language. It did not strike down the exclusion of women from the school on the basis that there
are no relevant "inherent differences" for purposes of education law; rather, the court avoided, carefully it appears, any as-
sessment of the extent to which women are biologically or socially different from men. [FN223] The court acted because
Virginia "use[d] women's differences from men as a justification for prescribing gender roles in a way that deprives women
of equal opportunity" [FN224] and, by so acting, the court "avoid[ed] a claim that equal treatment is necessarily required in
all contexts." [FN225l
Previous to the Baker decision, Sunstein had made this "minimalist" aspect of the United States v Virginia decision -
and the benefits thereof- clear, in other words, had demonstrated, without referring to radical social constructionism by
name, that the decision did not "enact" that theory. [FN226l And the author of the *94 c/d opinion had read Sunstein.
[FN227l But the opinion nevertheless rejects the State's rather carefully constructed "complementarity'' or "'diversity' argu-
ment [as] based on illogical conclusions from stereotypical imaginings that would be condemned by the very case [United
States v. Virginia] cited for its support." [FN228] This language implies that United States v. Virginia rejects all legal distinc-
tions between the sexes as "illogical conclusions from stereotypical imaginings" when it clearly does not. That rejection is
rather the hallmark of the c/d opinion itself. That rejection consists of nothing more than a rejection of the essentialism under-
lying the State's argument, a rejection premised on the assumed validity of the rival social theory and accomplished with gen-
erous resort to phrases like "illogical conclusions from stereotypical imaginings" and "sex stereotyping of the most retrograde
sort". [FN229l Yet the United States Supreme Court had declined to touch the validity of radical social constructionism, and,
as already noted, the c/d opinion neither proves that Vermont's laws had previously "enacted" and thereby validated the theo-
ry nor proves the theory's validity directly. The theory's validity is thus nothing more than the opinion's fundamental "article
of faith" or presupposition; that being so, the c/d opinion rationally cannot be taken seriously.
The c/d opinion in Baker is a cautionary tale, and a valuable one at that. The temptation to use radical social construc-
tionism, covertly or overtly, as the motive force in judicial redefinition of civil marriage is great. [FN230llt is great for *95
gay men and lesbians wanting to marry (and for those sympathetic to their cause) because the theory, if accepted, compels a
legal conclusion that, in the context of equality jurisprudence, mandates genderless marriage. The temptation is great for
those who adhere to the theory for other reasons, including feminists, because the theory's adoption in a genderless marriage
case both officially validates the theory and gives the theory the widest and deepest possible social and legal impact. That
impact is the widest and deepest possible because it seems politically impossible to have in our societies a more radical and
extreme application of the theory's legal conclusion than in a case mandating genderless marriage. All less extreme applica-
tions must then necessarily follow. In that fashion, the social/legal agenda of what almost certainly constitutes a minority
faction is implemented.
B. The Close Personal Relationship Theory
"Close relationship theory is a leading paradigm in contemporary social research on human intimacy and conjugality ...
[T]he close relationship paradigm ... has permeated academic theorizing on sexual intimacy." [FN231J Giddens has demon-
strated [FN232l that the paradigm's approach to human relations has changed both the academic and the popular conception
of adult dyadic relationships in general and marriage in particular. Thus, there is perception of a
movement from a marriage culture to a culture which celebrates "pure relationship." A "pure relationship" is are-
lationship which has been stripped of any goal or end beyond the intrinsic *96 emotional, psychological, or sexual sat-
isfaction which the relationship brings to the individuals involved. In this new world of "relationships," marriage is
placed on a level playing field with all other long-term sexually intimate relationships. [FN233]
Close relationship theorists have suggested that the law ought to be responsive to, ought to adapt itself to, the close per-
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sonal relationship theory, [FN2341 and some law reform efforts have unquestionably moved in that direction, including the
American Law Institute's Principles of the Law of Family Dissolution [FN2351 and the Law Commission of Canada's Beyond
Conjugality: Recognizing and Supporting Close Personal Relationships Between Adults. [FN2361 These efforts promote the
view that the law ought to recognize, on an equal footing, any adult dyadic relationship characterized by interdependence,
mutuality, intimacy, and endurance. [FN237l
The close personal relationship theory is contested in the academy, and its manifestations in popular culture are disputed
and opposed in that arena. [FN2381 In the academy, Cere and others *97 have noted that the close personal relationship theo-
ry has "stubborn blind-spots" and reaches distorting conclusions because of its own "conceptual blinders." [FN239l In par-
ticular, the "theory is not designed to generate much conceptual insight into the fundamental facets of conjugal life." [FN240J
Thus, although use of the theory may provide "helpful insights" into aspects of "human intimacy," that approach "is handi-
capped by its stubborn blind-spots in a discussion of 'marriage.'" [FN24ll
In short, as with the rival theories of gender, society has before it competing theories of marriage. These rival theories, at
their core, attempt to answer what marriage "is" or "ought to be," and they give very different answers. The close personal
relationship theory gives an answer congenial to and probably indispensable for the position of those advocating genderless
marriage. But for the judiciary, the threshold question is whether it should be in the business of choosing between those rival
theories, of anointing one as more valid than the other.
Language in the four cases suggests, but does not finally establish, that the courts deciding those cases have consciously
accepted the arguments of the close personal relationship theorists. Baker assures that marriage is the "official recognition
[of] and legal protection to the professed commitment of two individuals to a lasting relationship of mutual affection ... "
[FN242l The Goodridge plurality opinion states that "it is the exclusive and *98 permanent commitment of the marriage
partners to one another, not the begetting of children, that is the sine qua non of civil marriage." [FN243l That opinion also
says that "[c]ivil marriage is at once a deeply personal commitment to another human being and a highly public celebration
of the ideals of mutuality, companionship, intimacy, fidelity, and family". [FN244J For its part, Halpern summarizes mar-
riage as "one of the most significant forms of personal relationships" through which "individuals can publicly express their
love and commitment to each other" and by which society approves "the personal hopes, desires and aspirations that underlie
loving, committed conjugal [meaning sexually intimate] relationships." [FN2451
The four cases, however, evidence no judicial awareness of the content of the competing social theories nor of the way
each of those theories challenges the other. [FN2461 Most importantly, none of the four cases provides any reasoning for ac-
cepting one of the rival theories as more valid than the other and therefore as a fit basis for further legal analysis of the gen-
derless marriage issue. It is possible but not attractive that the courts' apparent adoption of the close personal relationship
theorists' views of what marriage "is" or "ought to be" is strictly functional, as sustaining a conclusion (genderless marriage)
reached for other reasons. This unattractive scenario also allows for and encompasses the possibility that the judges have in-
ternalized more or less consciously the values of the close personal relationship theorists and, deeming those values good, are
giving them official sanction, albeit without an explicitly reasoned basis for doing so.
*99 What was said above regarding the rival theories of gender applies here. The temptation to use close personal rela-
tionship theory and its associated values as the motive force in judicial redefmition of civil marriage is great. It is great for
gay men and lesbians wanting to marry (and for those sympathetic to their cause) because the theory, if accepted, powerfully
promotes judicially mandated genderless marriage. The temptation is great for those who adhere to the theory for other rea-
sons, including those whose preeminent family law value is promotion of"diversity," because the theory's adoption in a gen-
derless marriage case both officially validates the theory and gives the theory wide social and legal impact. And again, by
these means, the social/legal agenda of what almost certainly constitutes a minority faction is implemented.
C. Foreground Tasks and Background Tasks
Chapter one suggests that, in the area of judicial redefinition of marriage, better performance of the foreground tasks
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makes easier the resolution of the ultimate deference-to-the-legislature issues. This is born out by both the cautionary tale
from Baker (the c/d opinion) relative to the rival gender theories and a similar tale from all of the four cases relative to the
rival theories of marriage. A standard foreground task is explicit identification of the presuppositions of arguments. That task
is more vital when those presuppositions include the validity of a social theory attractive to influential elites but contradicted
by a social theory with majority support. The task is even more vital still when the validity of the rival theories is not subject,
for the foreseeable future, to resolution by "objective" or "scientific" means. Once that foreground task is done well, deciding
whether it is for judges or legislators to anoint one rival theory as the more valid would seem to be a less difficult task for a
court committed to the integrity of its deliberative processes.
*100 CHAPTER SIX
AT THE INTERSECTION OF EQUALITY AND DIGNITY
Human dignity as a guiding value in equality jurisprudence is a relatively recent development but an extraordinarily con-
sequential one. The SCC has led the way, [FN2471 but the South African Constitutional Court has also given the matter con-
siderable attention, [FN2481 and the idea of human dignity has even begun to appear, tentatively, in some American equality
cases. For example, the opening paragraph of the Goodridge plurality opinion says that the "Massachusetts Constitution af-
firms the dignity and equality of all citizens." [FN249J
But it remains the Canadian cases that most thoroughly link dignity and equality. In Law, [FN250J after careful review of
its previous equality cases, the SCC notes that the equality guarantee is the Charter provision most "conceptually difficult",
most "elusive", and most lacking in "precise definition". [FN251J Relative to this problem of relative indeterminancy, Law
may suggest that a focus on the value of human dignity ameliorates "the difficulties in defining the concepts of 'equality' and
'discrimination' [caused by] the abstract nature of the words and the similarly abstract nature of words used to explain them."
[FN252J Be that as it may, Law sees the value of human dignity as a thread running throughout the SCC's equality jurispru-
dence since the foundational Andrews *101 case [FN253J in 1989. Law quotes from the majority reasons of Wilson J. in An-
drews regarding persons "vulnerable to having their interest overlooked and their rights to equal concern and respect violat-
ed." [FN254J By the time the SCC decides Law in 1999, the "right to equal concern and respect" appears at the core of sec-
tion 15(1)'s perceived purpose, which is "to prevent the violation of essential human dignity ... and to promote a society in
which all persons enjoy equal recognition at law as human beings ... equally capable and equally deserving of concern, re-
spect and consideration." [FN255J This welding of human dignity to the Charter's equality guarantee is consequential be-
cause the "overriding concern with protecting and promoting human dignity in the sense just described infuses all elements of
the [section 15 (1)] discrimination analysis." [FN256J Indeed, that "overriding concern with protecting and promoting human
dignity" now also infuses apparently all aspects of the section 1 justification analysis. Halpern so reads the law. [FN257J
The use of dignity as a guiding value in equality jurisprudence has generated an extensive secondary literature, *102
primarily in Canada [FN258J and South Africa, [FN259J where that use is central to equality jurisprudence. Most of the liter-
ature addresses problems related in one way or another to the relative indeterminancy of the dignity concept. This article
takes a different tack. It examines the origins of the "right to equal concern and dignity" for this one purpose: to see what
light those origins may cast on the genderless marriage issue as treated in EGALE and Halpern. This article also addresses
briefly the implication for the gender less marriage issue when dignity, although a guiding value in interpretation and applica-
tion of the equality right, is not itself an independent, substantive right.
A. The Right to Equal Concern and Respect
1. The Origins and Content of the Right
Before its reference to the right in Andrews, the SCC had never spoken of a "right to equal concern and respect." The
originator of the phrase and the original advocate of the right is Ronald Dworkin, although he argues that the "right to equal
concern and respect ... must be understood to be the fundamental concept of Rawls's deep theory" [FN260J underlying A
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The01y of Justice. [FN261J To sustain this conclusion of Rawlsian origins, Dworkin in Taking Rights Seriously proceeds
through a long analysis that "is complex" and that "take[s] us, at times, far from his [Rawls's] *103 text, but not, I think, from
its spirit." [FN262J In the end, Dworkin sees his claim that the right is "the fundamental concept of Rawls's deep theory" as
being "reasonably clear from the [Rawls] text." [FN263J It may not matter so much now whether the right to equal concern
and respect is derived from Rawls or is merely erected on his high pedestal; what matters is how Dworkin develops and uses
the idea, and on that score three of his initial points are important. First, Dworkin sees the right as "a natural right of all men
and women ... simply as human beings with the capacity to make plans and give justice." [FN264J Second, the right is one
"to equal concern and respect in the design and administration of the political institutions that govern them", [FN265J but
cannot be made less abstract than this and thus "permits arguments" about more specific "derivative" rights and goals.
[FN266J Third, no "more radical concept of equality ... exists." [FN2671
When Dworkin revisits the right to equal concern and respect, it is not only to promote it as fundamental, especially
when conceived of as "the right to treatment as an equal", [FN268J but to "propose that individual rights to distinct liberties
must be recognized only when the fundamental right to treatment as an equal can be shown to require these rights." [FN269J
His argument *104 proceeds like this: Regarding the role of democratic processes in identifying the common good or general
welfare (for utilitarian purposes), Dworkin distinguishes between personal preferences (which he sees as legitimate in those
processes) and external preferences (which he sees as illegitimate, racism being paradigmatic, because to give them effect is
to not give equal concern and respect to the preferences of the minority, particularly those whose "form of life is despised by
others" [FN270l). He then proposes this general theory of substantive rights, which is true to his proposition just-quoted that
such rights "must be recognized only when the fundamental right to treatment as an equal can be shown to require" them:
The concept of an individual political right ... is a response to the philosophical defects of a utilitarianism that
counts external preferences and the practical impossibility of a utilitarianism that does not. It allows us to enjoy the in-
stitutions of political democracy, which enforce overall or unrefmed utilitarianism, and yet protect the fundamental
right of citizens to equal concern and respect by prohibiting decisions that seem, antecedently, likely to have been
reached by virtue of the external components of the preferences democracy reveals. [FN2711
For present purposes, it is important to note that Dworkin singles out these as examples of illegitimate external prefer-
ences: "that many members of the community disapprove on moral grounds of homosexuality, or contraception, or pornogra-
phy .... They prefer ... that no one else [indulge in these activities], and they believe that a community that permits rather than
prohibits *105 these acts is inherently a worse community." [FN2721 Now this establishes (if accepted) that an adult has "an
individual political right" to the sexual partner(s) and private sexual activities of his choice, but appears not to address the
question whether same-sex couples have a right to marry. That is because such a right, if it exists, must be grounded not on
the right to treatment as an equal but on the other and different equality right "comprehended by that abstract right" to equal
concern and respect: "the right to equal treatment, that is, to the same distribution of goods or opportunities as anyone else
has or is given." [FN2731 Dworkin's example is the one-man one-vote ruling from the United States Supreme Court in the
reapportionment cases. [FN2741 But this other equality right- the right to equal treatment- is of a much lesser order than
the right to treatment as an equal: "the more restrictive right to equal treatment holds only in those special circumstances in
which, for some special reason, it follows from the more fundamental right" to treatment as an equal. [FN2751 Dworkin does
not address (not surprisingly for 1977) a right of same-sex couples to marry; accordingly, there is no examination in that con-
text (or in any other, for that matter) of the presence or absence of the determinative "special circumstances" or "special rea-
son."
Soon thereafter, in his Natural Law and Natural Rights [FN276J of 1980, John Finnis challenged Dworkin's interpreta-
tion of a right to equal concern and respect. Before examining his challenge, it is helpful to point out a fundamental differ-
ence between Finnis and Dworkin that seems to inform much of their particular differences. Dworkin views individual politi-
cal rights as something over against the State, as something *106 in opposition to and (when vindicated) trumping the general
welfare or common good (as revealed through democratic processes), [FN2771 whereas Finnis views "the maintenance of
human rights [as] a fundamental component of the common good" and speaks of most human rights "being subject to or lim-
ited by each other and by other aspects of the common good, aspects which ... are fittingly indicated ... by expressions such
as 'public morality'." [FN2781 Against that background, Finnis sees Dworkin's conception of a right of equal concern and
respect as being a tool for unequal concern and respect. That is because the Dworkinian right is used to demean and nullify
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the preferences of those who succeed, through democratic processes, in instituting what Finnis calls "paternalist" legislation,
such as legislation designed to create a "milieu that will support rather than hinder his own pursuit of good and the well-being
of his children". [FN2791 In other words, the Dworkinian right cannot avoid being used (indeed, is designed to be used) for
"overriding someone's political preferences and compelling him to live in a society's whose ways he detests" and therefore
promotes "unequal concern and respect for him" in every meaningful context. [FN280J
Others besides Finnis challenged Dworkin's interpretation of a right of equal concern and respect, [FN281J with the re-
sult that in the course of time Dworkin modified or otherwise moved away from his 1977 arguments promoting his concep-
tion of the right, such that, by 2000 with publication of his Sovereign Virtue: The Theory and Practice of Equality, [FN282J
that conception is *107 not to be found in any intact and recognizable form. Indeed, Sovereign Virtue's only reference to Tak-
ing Rights Seriously speaks of"what I believe to be the more attractive morality of equality of resources." [FN283J But in the
meanwhile, that is, in 1989, the sec inserted into its equality jurisprudence the right of equal concern and respect without
setting forth analysis. In the SCC's most recent sexual orientation discrimination case, 1999's M v H, [FN2841 four of the five
justices giving reasons used the right of equal concern and respect as a settled component of the court's jurisprudence, in both
the section 15(1) discrimination and the section 1 justification contexts. [FN285J This role in SCC equality jurisprudence of
the right to equal concern and respect probably results from the seeming correspondence between equal respect and respect
for dignity. Certainly the equality right and the value of dignity are now welded in Canadian equality jurisprudence, and that
fact requires a brief examination of dignity.
Dignity can be either a constitutional right or a constitutional value. The South African constitution expressly makes it
both. [FN286J The United Nation's 1948 Universal Declaration of Human Rights speaks in article 1 of all being equal in dig-
nity and in article 22 of everyone being "entitled to realization ... of the economic, social and cultural rights indispensable for
his dignity". The Canadian Charter of Rights and Freedoms, however, does not use the word dignity; the *108 concept's use
in Canadian equality jurisprudence is a judicial choice, and the SCC uses dignity, as a value, to aid interpretation and applica-
tion of the equality right. But dignity is not a free-standing substantive right in Canadian jurisprudence; it operates only as a
value that "infuses all elements" of the section 15(1) and section 1 analyses; hence, in describing the purpose of section
15(1), the repeated references to equal and equally: "all persons enjoy equal recognition at law as human beings ... equally
capable and equally deserving of concern, respect and consideration." [FN2871
2. The Problematic Application of the Right in the Marriage Context
These understandings of the origins of the equality/dignity phenomenon in Canadian jurisprudence raise at least three
problems meriting attention. One is the radical nature of the right to equal concern and respect and the implications of that
radicality for the judicial role, but this article, not attending to such background issues, leaves that problem aside. Another
problem is that emerging from Dworkin's own distinction between the fundamental right to treatment as an equal and the
lesser and subordinate right to equal treatment (the basis of a same-sex couple's equality claim to marriage). The third prob-
lem is that raised by Finnis soon after Dworkin first set forth the right to equal concern and respect, that is, the right's pen-
chant for showing unequal concern and respect. The following paragraphs address first Dworkin's own distinction and then
Finnis's critique.
It seems clear that a law criminalizing sodomy (especially one like the Texas law reviewed in Lawrence v Texas, which
was limited to homosexual sodomy, [FN288l) falls within the scope of the fundamental right to treatment as an equal;
Dworkin says as *109 much. [FN289Jit seems equally clear that a same-sex couple's challenge to man/woman marriage falls
within the scope of the second component of the more abstract right to equal concern and respect, that is, the right to equal
treatment. Both Dworkin's description of the latter right and his example of the reapportionment cases confirm this conclu-
sion. He describes the latter right as a right "to the same distribution of goods or opportunities as anyone else has or is given."
[FN290J That phrase captures the essence of both the equality claim and the surrounding political rhetoric now advanced in
support of genderless marriage. The reference to the reapportionment cases also confirms the conclusion because they ad-
dressed the political distribution of electoral power present in the vote, with voting seen as an important civil right. EGALE
and Halpern likewise address the political distribution of benefits present in marriage, with marrying asserted as an important
civil right. [FN291J
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Yet the lesser and subordinate right of equal treatment is contingent, and even Dworkin is not confident the right was
properly applied in the reapportionment cases. [FN292J The contingency is that the right "holds only in those special circum-
stances in which, for some special reason, it follows from the more fundamental right" to be treated as an equal. [FN293J
Dworkin does reference a "special circumstance" (but no "special reason") in the reapportionment cases but does not express-
ly identify it; it may be, however, identifiable. Traditionally (and, the consensus is, properly), the courts have given broad
deference to and *110 cloaked with a strong presumption of constitutionality political decisions made through the democratic
processes and pertaining to the distribution of goods, benefits, and opportunities. [FN294J That deference and presumption
flow in large part from the particular legitimacy of the democratic political processes arising from equal rights of participa-
tion in those processes - rights of expression, assembly, petition, and voting. [FN295J The reapportionment cases came be-
fore the United States Supreme Court with the impugned laws lacking that legitimacy, exactly because the grossly unequal
apportionment reviewed there meant significantly unequal participation in the processes leading to those laws. [FN296J This
special circumstance, of course, does not apply to the genderless marriage debate; genderless marriage advocates are well-
funded, well-organized, well-placed in institutions of power, articulate, and active in the political processes. But there certain-
ly may be other special circumstances and special reasons justifying a court in applying the right to equal treatment to the
man/woman marriage laws. Reflection leads to one such possibility.
It may be argued that the strong presumption of constitutionality in distribution settings is necessary because of scarcity;
there is simply not enough of whatever is being distributed to go around to everyone's full satisfaction; in such a case the dis-
tribution problem should not be "constitutionalized" by resort to an equality guarantee but rather should be left to the usual
democratic processes, to which all have fairly equal access. *111 Civil marriage, however, is not this kind of case; a virtually
unlimited number of marriage licenses can be printed up and issued. Civil marriage, far from being a scarcity case, is simply
a matter of giving all who want to participate equal opportunity to participate in a resource that is not scarce or hardly even
finite. Indeed, because the resource is virtually unlimited, the preferences of those who want to maintain the status quo must
be suspect, as emanating from selfishness or mean-spiritedness or hatred.
Further reflection, however, leads to a view of marriage as a case of genuine scarcity. A wedding is not a marriage. A
marriage is participation in and engagement with a rich, complex, influential social institution. As shown in chapter four sec-
tion B, the marriage institution, like all social institutions, is constituted by a complex web of meanings that supplies to the
people who participate in it what they should aim for, dictates what is acceptable or effective for them to do, and teaches how
they must relate to other members of the institution and to those on the outside, in other words, that profoundly shapes what
those who participate in the institution think of themselves and of one another, what they believe to be important, and what
they strive to achieve. And to the extent of alternations in the social or public meanings that in large measure constitute it, an
institution is transformed. To change the core meaning of marriage from the union of a man and a woman (with all the radiat-
ing implications of that limitation) to the union of any two persons is to transform profoundly the institution, if not immedi-
ately then certainly over time as the new meaning is mandated in texts, in schools, and in many other parts of the public
square and voluntarily published by the media and other institutions, with society, especially its children, thereby losing the
ability to discern the meanings of the old institution. Whether the transformation is good or bad does not matter. What mat-
ters is that, if it happens, it will create a genuine scarcity: Those who want the institution of man/woman marriage will not
have it because it will not be there to be had. And if the transformation does not happen, that will create *112 another but
much smaller scarcity: Those who want the institution of genderless marriage (whatever that may tum out to be is uncertain,
other than that it will be markedly different from the present institution) will not have it because it will not be there to be had.
Thus, to the extent these understandings about meanings and the institution of marriage are correct, to that extent the demo-
cratically made decision on the definition of civil marriage is a classic case of distribution in a setting of scarcity. And that
means "that the more restrictive right to equal treatment [does not] hold." [FN2971
Regarding Finnis's challenge to Dworkin's right of equal concern and respect, the counter-argument must be that the ma-
joritarian preferences being demeaned and nullified (that is, not being shown equal concern and respect) are, in Dworkin's
language, "external" or, in more common judicial language, manifestations of "animus." Animus was central to the United
States Supreme Court's analysis in Romer v. Evans. [FN298J In that case, the Colorado voters amended the state constitution
to prevent legal protections against sexual orientation discrimination or legal preferences based on sexual orientation. The
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court struck down the amendment "because it was based not on a legitimate *113 public purpose but on a form of 'animus',
with the apparent suggestion that statutes rooted in 'animus' represent core offenses against the equal protection guarantee."
[FN299] The Goodridge plurality opinion makes a move towards an animus argument:
The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex
couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare,
suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to
be) homosexual. "The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may
be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." [FN300J
And certainly genderless marriage advocates make animus a central argument in their political and legal communica-
tions. [FN301J
In the context of preserving man/woman marriage, however, the animus charge appears dubious. The Goodridge plurali-
ty opinion's proof - because there is no rational basis for continuing the limitation of man/woman marriage, the only other
*114 possible reason must be animus - is only as probative as its foundation ("no rational basis") is strong. As chapters
three, four, and five show, however, that foundation is problematic; the judicial performance leading to the "no rational ba-
sis" conclusion can be judged as materially defective. Moreover, those chapters suggest that legitimate positive reasons sup-
port preservation of man/woman marriage. Thus, it is reasonable to conclude that the citizens supporting the preservation of
man/woman marriage are doing so for just that reason, to preserve the institution of man/woman marriage and what they
deem to be its uniquely positive contributions. In other words, in expressing their preferences, the citizens in the majority are
looking in a positive way towards man/woman marriage, not in a hateful way towards gay men and lesbians. Accordingly,
unless one proceeds on the presupposition that the citizens in the majority are invariably or inherently mean-spirited and oth-
erwise irrational, all this supports the view that the majority's preferences are "equally deserving of concern, respect and con-
sideration" [FN302J and that Finnis's critique of the right of equal concern and respect holds in the genderless marriage con-
text.
Thus, the marriage issue may properly be viewed as presenting a distribution case (and thus subject to Dworkin's analysis
regarding the lesser right to equal treatment), and that issue may properly be viewed as not presenting an animus case (mean-
ing the issue is validly subject to Finnis's critique). This being so, a judicial holding in favour of genderless marriage is not
defensible when made on the ground that homosexuals have an "already disadvantaged position within ... society" and have
been subject to "the imposition of disadvantage, stereotyping, or political or social prejudice." [FN303J Occurring in a distri-
bution case that is not an animus case, such a holding (which appears to be at *115 work in Halpern [FN304l) is nothing
more nor less than a judicial edict that, because homosexuals have been deprived of due respect in the past, they will now
receive the respect flowing from unfettered access to civil marriage. And that edict is no different philosophically or practi-
cally from a judicial edict holding that, because poor people have been deprived of a due share of financial resources in the
past, they will now receive the fmancial resources flowing from unfettered access to the national bank. Society has reasons
for limiting unfettered access to the national bank, just as it has reasons for limiting unfettered access to the civil institution of
marriage; without those limitations, neither institution will be at all recognizable in short order, nor able to perform its vital
functions. Accordingly, the judiciary seems hardly justified in disregarding the reasons behind the institution-protecting limi-
tations and acting to remedy deprivation solely because such deprivation exists. [FN305J
Neither EGALE nor Halpern considers any of these ideas: Dworkin's ideas inhering in the right of equal concern and
respect and operating to define and limit that right's scope; Finnis's critique of the right; and the problems inhering in a pure
redistributive approach. These ideas apparently were not fully presented to the courts in those cases, and the courts did not
otherwise grasp them. This is troubling because of the role these ideas ought to have in any thoroughly analysed resolution of
the genderless marriage issue in Canada. These ideas lead to the conclusion that the right of equal concern and respect does
not properly sustain a genderless marriage claim.
*116 B. Equality and Dignity
Dignity's presence in Canadian jurisprudence - dignity as a value used to guide interpretation and application of the
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equality right- and its absence - dignity is not an independent, substantive right - have an important implication for the
genderless marriage issue. Because the right of equal concern and respect, which encompasses the value of dignity, does not
properly sustain a genderless marriage claim, dignity has no further or independent role to play in the resolution of such a
claim. In and by itself, the concept of dignity cannot ground a genderless marriage claim.
Theoretically, dignity could independently ground such a claim if it were a substantive right, either created by constitu-
tional text or conjured into being by judicial activism. But an important insight by Sunstein suggests that, even in that case,
dignity would not sustain a genderless marriage claim. He provides this insight in the midst of his analysis of Romer v. Ev-
ans, [FN306J the case originating in Colorado and summarized in the previous section. The majority opinion never once
mentioned the United State Supreme Court's earlier decision in Bowers v Hardwick, [FN307J holding that substantive due
process (based on the fourteenth amendment's Due Process Clause) did not protect private, consensual, adult homosexual acts
against criminal sanctions; yet the Romer opinion went on to strike down the Colorado amendment, which did not criminalize
homosexual conduct but, less onerously, prevented homosexuality from being used as the basis for legal benefits. Scalia J in
dissent stated the problem: "If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is
constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct." [FN308J Sunstein neatly
resolves the tension between the two *117 cases on the basis that the earlier case invoked only the due process clause; the
latter, the equal protection clause. [FN309J The details of that resolution are not important, but this insight is:
Perhaps the rights protected by the Due Process Clause must grow out of longstanding practices. But as it has
come to be understood, the Equal Protection Clause is tradition-correcting, whereas the Due Process Clause is general-
ly tradition-protecting. The Equal Protection Clause sets out a normative ideal that operates as a critique of existing
practices; the Due Process Clause safeguards rights related to those long-established in Anglo-American law .... The
content of the Equal Protection Clause is not given by tradition; that Clause is rooted in a principle that rejects many
traditional practices and in any case subjects them to critical scrutiny. [FN3I OJ
No reason appears why this insight cannot be validly generalized to all similar constitutional States, that is, those with
guarantees of both substantive rights and equality. The meaning seems to be this for such States: Under notions of judicial
review, constitutional creation of a substantive right confers a correlative power on the judiciary, the power to order society
in a way that vindicates the right. And limitations on the scope of the right itself are pro tanto limitations on the scope of the
judiciary's society-ordering power. To a considerable extent, traditions (long-standing and widely held notions regarding the
scope of the right) provide the limitations, and a court is deemed under a duty to discern those traditions. When it does so (or
appears to do so), its judgment has legitimacy as ordering society according to its (society's) own (and best) norms rather than
re-ordering society *118 by judicial fiat. The majority opinion in the American marital contraception case, Griswold v. Con-
necticut, [FN3IIJ well demonstrates this approach; once the constitutional norm of marital privacy is deemed adequately
demonstrated (by a now-famous paragraph), the opinion strikes down the law and abruptly concludes. [FN3I21
The important question in South Africa (with its textually created right to dignity [FN3I3l) and in any other State recog-
nizing such a substantive right is the scope of the right. The American constitutional tradition, certainly robust although not
uncontroversial in all its applications, [FN3I4J would point to a tradition-protecting approach to the nature and scope of the
substantive right to dignity. And such an approach seems unlikely to sustain a genderless marriage claim. This conclusion is
suggested by the American cases holding that a "right" allowing same-sex couples entry into civil marriage is not one 'so
rooted in the traditions and conscience of our people as to be ranked as fundamental', nor is it to be found among those rights
"implicit in the concept of ordered liberty." [FN3I5l This conclusion also follows from a largely untested sense of what
might be the *119 fruits of a rigorous historical inquiry - one into the best philosophical and legal thought of Western civi-
lization on the meaning of human dignity [FN3I6J - and the meaning of those fruits for a genderless marriage claim prem-
ised on a substantive right to dignity. (Such an historical inquiry is beyond the scope of this article.)
CHAPTER 7
UNDERSTANDING GOODRIDGE
Between the decision in Goodridge [FN3I71 and the follow-up decision in response to the Massachusetts Senate's pro-
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posed civil union bill, Re Opinions of the Justices to the Senate, [FN318l the justices of the Supreme Judicial Court produced
eight opinions. Throughout, those opinions reflect the same 4-3 split, with the one-justice majority mandating genderless
marriage. A number of those eight opinions appear to demonstrate, in a rather pointed way, an important distinction that
Dworkin drew and elaborated more than 25 years earlier in Taking Rights Seriously. [FN319J The distinction, in his view, is
necessary for a correct understanding of Rawls' A The01y of Justice [FN320J but even more importantly "is significant and
consequential for our moral philosophy." [FN321J This chapter first summarizes Dworkin's work on that important *120 dis-
tinction, then demonstrates the applicability of that work to the Supreme Judicial Court's treatment of genderless marriage,
and finally uses that work to assess the treatment's value.
A. Dworkin's Distinction
Dworkin perceived Rawls as employing a "technique of equilibrium" [FN322] where those who think about justice "pro-
ceed back and forth between our immediate judgments [that is, immediate intuitions or convictions about what is morally
right] and the structure of explanatory principles", all the while "tinkering first with one side [moral intuitions] and then the
other [principles], until we arrive at ... the state of reflective equilibrium." [FN323J "The technique of equilibrium supposes
what might be called a 'coherence' theory of morality. But we have a choice between two general models that define coher-
ence and explain why it is required." [FN324l As already noted, the choice between the two models "is significant and con-
sequential for our moral philosophy'', and indeed "the equilibrium technique makes sense on one [model] but not the other."
[FN325J
One model Dworkin calls the "natural model." [FN326Jit presupposes that at least some people possess a faculty to intu-
it aspects of a pre-existing and "objective moral reality." [FN3271 "These intuitions are clues to the nature and existence of
more abstract and fundamental moral principles .... Moral reasoning or philosophy is a process of reconstructing the funda-
mental principles by assembling concrete judgments in the right *121 order." [FN328J When an intuition conflicts with a
previously accepted principle, the observer attempts to discover a harmonious principle. If she succeeds, she accepts that
principle; its very harmony with the intuition validates the principle. If she fails, she then adheres to "a policy of following
the troublesome intuition, and submerging the apparent contradiction, in the faith that a more sophisticated set of principles,
which reconciles that intuition[,] does in fact exist though it has not been discovered." [FN329]
The other model, called the "constructive model," is "quite different" and "not unfamiliar to lawyers" because it is "anal-
ogous to one model of common law adjudication." [FN330J This model
demands that decisions taken in the name of justice must never outstrip an official's ability to account for these
decisions in a theory of justice, even when such a theory must compromise some of his intuitions. It demands that we
act on principle rather than on faith. Its engine is a doctrine of responsibility that requires men to integrate their intui-
tions and subordinate some of these, when necessary, to that responsibility. It presupposes that articulated consistency,
decisions in accordance with a program that can be made public and followed until changed, is essential to any con-
ception of justice. [FN331J
The technique of equilibrium makes sense on the constructive model but not the natural model, with which the *122
technique is "incompatible." [FN332J Although Dworkin devotes several pages in support of this conclusion, [FN333l only
portions of his analysis need be set forth here; those are the portions demonstrating that the natural model, unlike the con-
structive model, is deficient relative to "necessarily and profoundly practical" results of the equilibrium technique. [FN334l
Thus, the natural model may well serve a lone individual making moral judgments affecting only his conduct, but it ill serves
the collective making of moral judgments. The very purpose of the equilibrium technique is "to reconcile men who disagree
by fixing on what is common ground among them"; this approach "concededly will yield different results for different
groups, and for the same group at different times, as the common ground of confident intuition shifts." [FN335J The con-
structive model is necessarily superior because it, and only it, can sensibly reject "even a powerful conviction that ... cannot
be reconciled with other convictions by a plausible and coherent set of principles." The constructive model rejects such a
conviction not because it must be deemed "a false report, but simply [because it is] ineligible within a program that meets the
demands of the model" for a plausible and coherent set of principles. [FN336l "The [constructive] model requires officials or
citizens to proceed on the best program they can now fashion, for reasons of consistency that do not presuppose, as the natu-
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ral model does, that the theory chosen is in any final sense true." [FN3371 And, finally, the constructive model consistently
"may call into question whether *123 any group is entitled to treat its moral intuitions as in any sense objective or transcen-
dental ... " [FN3381
B. The Natural Model in Goodridge andRe Opinions of the Justices
This section examines whether the 4-3 split in Massachusetts results, in some fundamental way, from the majority's ad-
herence to the natural model while the minority was adhering to the constructive model. That examination begins with the
Greaney J concurring opinion in Goodridge and then proceeds to the majority opinion in Re Opinions of the Justices.
Whereas the Goodridge plurality opinion purported to apply the deferential rational basis test, the concurring opinion
asserted that the law's preference for man/woman marriage must be subjected to strict scrutiny "using traditional equal pro-
tection analsysis" both because the Commonwealth's 1976 equal rights amendment banning sex-based discrimination so re-
quired and because the "right to marry" must be deemed a fundamental right in the context of same-sex couples. [FN3391
The dissenters effectively challenged both arguments. Regarding the latter argument, they made these cogent points: To
begin with the presupposition that genderless marriage is a fundamental right efficiently but not helpfully leads to the conclu-
sion that genderless marriage is a fundamental right; certainly nothing in the traditions of the American people or even just
those in Massachusetts grounds a claim of a fundamental right to genderless marriage. [FN340J Regarding the former argu-
ment, the dissenters pointed to the still-fresh history of the adoption of the Commonwealth's equal rights amendment, specifi-
cally the avowal by the amendment's *124 supporters that, if adopted, the amendment would not and could not be used to
sustain genderless marriage. [FN3411
To the challenge regarding "fundamental right" the concurring opinion provides no analysis beyond the bare conclusion
that, because the law recognizes a fundamental right to man/woman marriage, genderless marriage is a fundamental right too.
To the challenge based on the history of the equal rights amendment, the concurring opinion responds' with its footnote 6,
which, because of its telling content, merits some examination. The first of two arguments is that the intent of the people of
Massachusetts in 1976 in enacting the equal rights amendment cannot properly constrain a judge in 2003; any original intent
approach to constitutional interpretation is to be rejected. Yet the footnote's language, in tone, content, and context, is so ex-
treme as almost to appear as the satirical work of a proponent of original intent spoofing his opponents:
In so reasoning [that what the voters clearly intended in 1976 matters], the separate opinion [of Cordy J] places it-
self squarely on the side of the original intent school of constitutional interpretation. As a general principle, I do not
accept the philosophy of the school. The Massachusetts Constitution was never meant to create dogma that adopts in-
flexible views of one time to deny lawful rights to those who live in another. The provisions of our Constitution are,
and must be, adaptable to changing circumstances and new societal phenomena, and, unless and until the people speak
again on a specific subject, conformable in their concepts of liberty and equality to what is fair, right, and just.
[FN342J
*125 This extremism, however, was apparently too much even for the concurring opinion's author, who immediately
back-tracked with these words: "I am cognizant of the voters' intent in passing the amendment to art. I in 1976. Were there-
vision alone the basis for change, I would be reluctant to construe it favorably to the plaintiffs, in view of the amendment's
recent passage and the voters' intent." [FN343l Most problematic, the footnote's next (and last) two sentences appear to aban-
don the entirety of the separate concurring opinion and to note simply a concurrence with the plurality opinion: "The court's
opinion [not the opinion of the concurring justice], however, rests in part on well- established principles of equal protection
that are independent of the amendment. It is on these principles that I base my opinion." [FN3441 Yet despite that last sen-
tence, the text of the concurring opinion, including its discredited "fundamental right" and equal rights amendment argu-
ments, still stands unchanged; it remains a genuine concurring opinion.
The problematic, even embarrassing, nature of the concurring opinion calls for some explanation of that nature, an ex-
planation the following analysis may provide. The author had a strongly held personal intuition or conviction that genderless
marriage was right, but despite an effort of some pages to harmonize that intuition with established constitutional principles,
could not do so. When the dissenters made that failure plain, the author makes one last but futile reach for sustaining princi-
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pie, suggesting it is found in the plurality opinion; but of course, it is not, as the prior chapters demonstrate. In the end, the
author reveals himself to be (consciously or otherwise) an adherent of the natural model; in Dworkin's words, the author
"submerg[ es] the apparent contradiction, in the faith that a more sophisticated set of principles, which reconciles that intui-
tion[,] does in fact *126 exist though it has not been discovered." Here then is that revelation, the open rejection of the con-
structive model and its insistence on consistency with a "plausible and coherent set of principles" and the concomitant public
embrace of the natural model with its insistence on the "objective and transcendental" truth of the author's guiding intuition:
"Simple principles of decency dictate that we extend to the plaintiffs, and to their new status, full acceptance, tolerance, and
respect. We should do so because it is the right thing to do." [FN3451
That remarkable act of judicial self-revelation is repeated four months later in Re Opinions of the Justices. [FN3461 In
Goodridge, the plurality opinion said no rational basis existed for depriving same-sex couples of all the benefits of civil mar-
riage. The senate responded with a bill giving those couples all the benefits of civil marriage except the name marriage and
asked the Supreme Judicial Court if the bill satisfied the perceived constitutional defect. Thus, the question for the court was
whether a rational basis existed for that one limitation on the use of the word marriage. It is difficult to characterize the four-
justice majority response as anything other than a refusal to engage meaningfully the rationality of making that one distinc-
tion between civil marriage and civil union; what is seen instead are numerous value-laden and conclusory phrases such as
"second-class citizen status", "stigma of exclusion", "stain", "invidious", ''unconstitutional, inferior, and discriminatory sta-
tus", and the like. So seen, the majority opinion strongly suggests that the distinction based on the word marriage offends the
four's *127 "natural" intuitions or convictions; the value-laden and conclusory phrases is their substitute for plausible and
coherent principles sustaining of those intuitions but not yet discovered. And the majority's adherence to the natural model
process seems most evident when the majority opinion asserts: "The denomination of this difference by the separate opinion
of Justice Sosman ... as merely a 'squabble over the name to be used' so clearly misses the point that further discussion ap-
pears to be useless." [FN3471 The statement that "further discussion appears to be useless" seems to flow directly from the
fundamental presupposition of the natural model, that only some people possess a faculty to intuit aspects of a pre-existing
and "objective moral reality." [FN3481 This presupposition certainly seems to suggest that those persons who diverge from
the "right" intuition thereby reveal their lack of the requisite faculty and that "further discussion" with them is, exactly be-
cause of that lack, ultimately "useless."
C. The Value of the Natural Model and the Majority's Opinions
If, as Dworkin argues at length, the constructive model is much more useful than the natural model in resolving public
issues of justice, and if, as the previous section seeks to demonstrate, the majority's opinions flow from the latter, not the
former, those opinions may be fundamentally defective. Indeed, it seems difficult to escape the conclusion that the majority's
resort to the natural model has made "bad law" in Massachusetts, "bad" in the sense that it lacks the vital legitimacy essential
to the political and moral success of any judge-made law. The simple fact appears to be that a substantial portion of the
thoughtful citizenry have a moral intuition regarding the "rightness" of genderless marriage exactly contrary to that of the
four justices. Moreover, the former *128 intuition, in contrast to the latter one, appears to enjoy a substantial harmony with
principles of justice as reflected in settled equality jurisprudence, while the four justice's efforts to articulate "a more sophis-
ticated set of principles" [FN3491 sustaining of their intuition appear largely unavailing, leaving them only to their "faith."
[FN3501 But all that means is that the four justices have called on substantial portions of the citizenry to abandon their faith
with its sustaining principles of justice and adopt the justices' faith not now manifestly supported by any articulated principles
of justice.
As Dworkin understood, the constructive model, unlike the natural model driving the opinions of the four justices, is
"appropriate to identify the program of justice that best accommodates the community's common convictions ... with no
claim to a description of an objective moral universe." [FN35ll It is exactly the natural model's insistence on the primacy of
an individual's particular moral intuition that makes the four justices' opinions so problematic as "authoritative" in the public
sphere where, and only where, those opinions operate. Dworkin foresaw this problem:
If the technique of equilibrium is used by a single person, and the intuitions allowed to count are just his and all
of his, then the results may be authoritative for him. Others, whose intuitions differ, will not be able to accept his con-
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elusions, at least in full, but he may do so himself. If, however, the technique is used in a more public way [pursuant to
the natural model] ... then the results will be those that no one [of contrary intuitions] can accept as authoritative, just
as no *129 one could accept as authoritative a scientific result reached by disregarding what he believed to be evidence
at least as pertinent as the evidence used. [FN352J
Thus, the citizenry, including even those citizens who share the four justices' moral intuitions on genderless marriage but
are well schooled and disciplined in the democratic ethos, may legitimately "call into question whether any group [ie the four
justices] is entitled to treat its moral intuitions as in any sense objective or transcendental." [FN353J It seems quite certain
that our "particular society" is one, by rather conscious choice, "which does [not] treat particular convictions in that way"
[FN354J; in the public square, a naked assertion of"faith" is accorded little respect or influence.
The present problem in Massachusetts thus presents itself as a problem of effective governance, that is, a "profoundly
practical" [FN355J problem. That problem seems rooted in this reality: That which does command respect and influence in
the public square under our traditions, such as articulated principles of justice of the kind given primacy by the constructive
model, is to be found almost exclusively in the opinions of the three dissenting justices. The four justices' promotion of their
particular intuition regarding genderless marriage - and their reliance on heated rhetoric to the virtual exclusion of articulat-
ed general principles of justice sustaining of that intuition- seems to have unavoidably (under Dworkin's analysis) doomed
their resulting opinions to a nagging illegitimacy not readily altered. A bit ironically, legitimacy for genderless marriage in
Massachusetts, if genderless marriage is ultimately to endure in *130 the Commonwealth, would seem attainable only by
voter rejection of the proposed state constitutional amendment - which genderless marriage proponents most passionately
do not want to go to the voters.
CHAPTER EIGHT
CONCLUSION
The genderless marriage question presented to the Vermont, British Columbia, Ontario, and Massachusetts appellate
courts a handful of material foreground issues, issues requiring performance of traditional judicial tasks. With respect to each
issue, the tasks were not done well. Rather, the judicial performance can be adjudged materially defective.
With respect to the procreation issue, the courts simply refused or otherwise failed to come to grips with the argument
advanced by defenders of man/woman marriage, an argument that equality jurisprudence makes important: Society fashions,
preserves, and privileges marriage as a man/woman institution because of society's own deep logic of marriage. Man/woman
marriage is society's mechanism for intelligently ordering the consequences of the great tide of heterosexual attraction in so-
ciety. Society can rationally value most highly the married man/woman relationship because unique to that relationship is the
sexual conduct component that society can rationally value most highly; man/woman marriage uniquely provides the positive
social consequences of child-bearing while best minimizing its negative social consequences. This difference between
man/woman marriage and all other sexually related dyadic relationships qualifies as a difference that matters for equality
jurisprudence. Yet the four cases steadfastly avert their attention from society's deep logic of marriage and, without provision
of justification for doing so, recast the "procreation" argument into one dismissible by resort to the close personal relation-
ship model of marriage or by resort to the no-downside argument (both of *131 which tactics themselves constitute defective
judicial performances).
With respect to the valuation of different modes of child-rearing, the courts simply refused or otherwise failed sensibly to
engage the validity of this one idea: Of all adequately studied child-rearing modes, married mother/father child-rearing is the
optimal mode. The courts' resort to an argument based on legislative allowance of same-sex couple adoption fails to meet
minimal standards of judicial analysis for reasons plainly stated to the courts but ignored by them.
Nor does the no-downside argument qualify as acceptable judicial work. EGALE, Halpern, and Goodridge expressly
recognize that the redefinition they order constitutes a profound and significant change in the public meaning of marriage, yet
at the same time deny that this change will alter the "vital social institution." Social anthropology, however, plainly refutes
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this denial. The three cases then underscore their own error with their quick readiness to acknowledge law's educative and
hence society-changing power when some value preferred in those cases is being advanced, while manifesting a stubborn
refusal to acknowledge that same power when its use places the goods of man/woman marriage at risk. A rational legislator
doing defensible analysis on this issue, however, could reasonably conclude that legal redefinition will indeed place those
goods at risk.
Nor does the judicial performance relative to competing social theories pass muster. The four cases seem to be arguing
that the close personal relationship model of marriage accurately describes what marriage now "is" in our societies, yet no
responsible observer supports the view that this model is in fact dominant or even approaching majority acceptance. And for
reasons clear at least since Holmes' day, judicial anointment of the close personal relationship theory as more valid than the
rival *132 theory is not defensible. The same is true relative to radical social constructionism.
EGALEs and Halpern's use of the right to equal concern and respect and its allied notion of respect for human dignity is
problematic. The deep analysis done in bringing forth the right to equal concern and respect teaches that the right cannot be
construed to support a same-sex couple's claim to genderless marriage. Nor has there been any adequate answer to the cri-
tique that the right to equal concern and respect, in the marriage context, actually becomes a tool for showing unequal con-
cern and respect. Further, dignity is not a free-standing substantive right in Canadian jurisprudence but operates only as a
component, albeit a pervasive component, of equality jurisprudence. With the failure of the argument based on a right to
equal concern and respect, dignity cannot independently sustain a genderless marriage claim. Certainly dignity alone cannot
defensibly sustain a judicial edict based on the notion (which appears to be at work in Halpern) that, because homosexuals
have been deprived of due respect in the past, they must now receive the respect flowing from unfettered access to civil mar-
riage. That notion ignores - and, if allowed, could well be inimical to - the powerful societal reasons for fashioning the
institution of marriage with the man/woman relationship as a core, defming feature.
In sum, the majority opinions in the four cases do not amount to an adequate judicial treatment of a few material, fore-
ground issues. The courts did an unacceptable job with their performance of the very tasks that lie at the heart of judicial re-
sponsibility in virtually every case. That failure is not conclusive proof, of course, that no court can adequately perform those
foreground tasks and still rule, in principled fashion, in favour of genderless marriage. But it gives pause.
[FNall. Canadian Journal of Family Law and Monte Neil Stewart. This article is available on-line at
www.manwomanmarriage.org. The genesis of this article is a thesis submitted May 2004 and leading to an M.St. degree with
distinction from Oxford University, U.K. The author expresses appreciation to his thesis supervisor, John Eekelaar, and to St.
Anne's College for their assistance and support.
[FNll. 170 Vt 194. 744 A2d 864 (1999) [Baker].
[FN2J. 2003 BCCA 251. (2003) 225 DLR (4th) 472 [EGALE].
[FN3J. [2003] OJ No 2268, (2003) 225 DLR (4th) 529 (Ont. C.A.) [Halpern].
[FN4J. 440 Mass 309,798 NE2d 941 (2003) [Goodridge].
[FN5J. Goodridge, supra note 4 at 320-21.
[FN6]. A number of essays - collected in R. Wintemute and M. Andenaes, eds., Legal Recognition of Same-Sex Partner-
ships (Oxford-Portland, Oregon: Hart, 2001)- both verify that the activists have so chosen and discuss the implications of
that choice, including D. Richards "Theoretical Perspectives"; N. Bamforth "Same-Sex Partnerships and Arguments of Jus-
tice"; C. Feldblum "The Limitations of Liberal Neutrality Arguments in Favour of Same-Sex Marriage"; J. Halley, "Rights,
Regulation, Normalisation: Rhetorics of Justification in the Same-Sex Marriage Debate"; and W. Eskridge "The Ideological
Structure of the Same-Sex Marriage Debate (And Some Postmodern Arguments for Same-Sex Marriage)".
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[FN7]. Events pertaining to judicial redefinition of marriage have occurred frequently during the writing of this article, neces-
sitating use of a cut-off date; the date used is 15 March 2004.
[FN8]. Baker v. Nelson, 191 N.W.2d 185. 291 Minn. 310 (Minn. 1971); North v. Matheson (1975), 52 DLR (3d) 280, 20
R.F.L. 112 (Man. Co. Ct).
[FN9]. Registered Partnership Act, Law No. 372 of7 June 1989.
[FNIO]. K. Boele-Woelki & A Fuchs, "Foreword" inK. Boele-Woelki & A Fuchs, eds., Legal Recognition of Same-Sex
Couples in Europe (Antwerp: Intersentia, 2003).
[FNIIJ. Ibid.
[FN12]. K. Boele-Woelki, "Registered Partnership and Same-Sex Marriage in the Netherlands" in Boele-Woelki & Fuchs,
supra note 10,41 at41-42.
[FN13]. Supra note 10.
[FN14]. B. Verschraegen, "The Right to Private Life and Family Life, the Right to Marry and Found a Family, and the Prohi-
bition of Discrimination" in Boele-Woelki & Fuchs, supra note 10, 194 (European Court of Human Rights' precedents con-
trary to redefinition); Quilter v. Attorney General, [1998] 1 N.Z.L.R. 523 (C.A.) (Bill ofRights Act did not require a judicial
order that marriage licenses be issued to same-sex couples); J. Millbank & W. Morgan, "Let Them Eat Cake and Ice Cream:
Wanting Something 'More' from the Relationship Recognition Menu" in Wintemute & Andenaes, supra note 6, 295 and 305
("[P]artly because of the lack of a constitutional equality guarantee, Australia is falling behind other developed legal jurisdic-
tions when it comes to the judicial recognition of same-sex relations."); Joslin v. New Zealand UN Human Rights Committee
(30 July 2002) UN Doc CCPR/C/75/D/902/1999 (no ICCPR right to genderless marriage).
[FN15]. E. Cameron, "Sexual Orientation and the Constitution: A Test Case for Human Rights" (1993) 110 South Africa
Law Journal450-451.
[FN16]. Constitution of the Republic of South Africa, Act 200 of 1993, s 8.
[FN17]. Constitution of the Republic of South Africa, Act 108 of 1996, s 9(3).
[FN18]. National Coalition for Gay and Lesbian Equality v. Minister of Justice 1999 (1) S.A. 6 (CC); National Coalition for
Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) S.A 1 (CC); Satchwe/1 v. President of the Republic of South
Ajiica 2002 (9) B.C.L.R. 986 (CC); Du Toit v. Minister for Welfare and Population Development 2002 (10) B.C.L.R. 1006
(CC); J v. Director General, Dept of Home Affairs 2003 (5) B.C.L.R. 463 (CC).
[FN19]. Fourie v Minister of Home Affairs 2003 ( 1 0) B.C.L.R. 1092 (CC).
[FN20]. J v. Director General, supra note 18 at para. 23.
[FN21]. "Constitutional Court Dismisses Same-Sex Marriage Appeal" Lesbian and Gay Equality Project Press Release (31
July 2003), online: Lesbian and Gay Equality Project <http://www.equality.org.zalpress/2003/07/31ssmar.htm> (26 January
2004); Interview (telephone) of Evert Knoesen, National Director, Lesbian and Gay Equality Project (Johannesburg, 3 Febru-
ary 2004) (already prepared lawsuit to be filed immediately after national elections in April2004).
2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 001445
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[FN22J. Egan v. Canada, [I995] 2 SCR 5I3, I24 DLR (4th) 609.
[FN23J. Vriend v. Alberta. [19981 I SCR 493. I 56 DLR (4th) 385 at paras. 90-91.
[FN24J. Mv. H. [199912 SCR 3. I77 DLR (4th) 577.
[FN25J. Supra note 2.
[FN26l. Supra note 3.
[FN27J. EGALE, supra note 2, additional reasons at, [2003] BCCA 406, 228 DLR (4th) 416.
[FN28J. "Backgrounder: Reference to the Supreme Court of Canada" Department of Justice Newsroom, online: Department
of Justice, Canada <http:// canada.justice.gc.ca/en/news/nr/2003/doc_30946.htmb (26 January 2004).
[FN29J. Ibid.
[FN30]. "Government of Canada Reaffirms Its Position on Supreme Court Reference" Department of Justice Newsroom,
online: Department of Justice, Canada <http://canada.justice.gc.ca/en/news/nr/2004/doc_31106.htmb (29 January 2004);
"Background: Civil Marriage and the Legal Recognition of Same-sex Unions" Department of Justice Newsroom, online: De-
partment of Justice, Canada< http://canada.justice.gc.ca/en/news/fs/2004/doc_31108.htmb (29 January 2004).
[FN31J. "Fact Sheet: Reference to the Supreme Court of Canada on Civil Marriage and the Legal Recognition of Same-sex
Unions" Department of Justice Newsroom, online: Department of Justice, Canada <http:// cana-
da.justice.gc.ca/en/news/fs/2004/doc _3111 O.htmb (29 January 2004).
[FN32J. L. Wardle, "Institutionalizing Marriage Reforms Through Federalism" in A. Hawkins, L. Wardle & D. Coolidge,
eds., Revitalizing the Institution of Marriage for the Twenty-First Centwy: An Agenda for Strengthening Marriage (West-
port, Conn: Praeger, 2002) 167 at 167-70; A. Leonard, "Legal Recognition of Same-Sex Partners Under US State or Local
Law" in Wintemute & Andenaes, supra note 6, 133 at 133-34.
[FN33]. Baehr v. Lewin. 74 Hawaii 530. 852 P2d 44 (1993).
[FN34J. Baehr v. Miike. 92 Hawaii 634. 994 P2d 566 (Table) (1999).
[FN35]. The Alaska experience is touched on in Bess v. Ulmer. 985 P2d 979 (Alaska 1999) 988.
[FN36]. Defense of Marriage Act of 1996, Pub L No 104-199, 110 Stat 2419 (1996) (codified at 28 USC 1738C and 1
usc 7).
[FN37J. 1 U.S.C. 7.
[FN38J. 28 U.S.C. 1738C.
[FN39l. U.S. Const. art. IV. I.
[FN40J. Baker, supra note 1 at 225-26.
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[FN4IJ. An Act Relating to Civil Unions, Act 9I of2000.
[FN42l. Lawrence v. Texas, 539 US 558. I23 S Ct 2472 (2003).
[FN43J. Goodridge, supra note 4.
[FN44J. Ibid. at 344.
[FN45]. Request for Advis01y Opinion (A-I07) SJC-09I63 (Mass 2003).
[FN46] . Re Opinions o(the Justices to the Senate 440 Mass I201. 802 NE2d 565 (2004).
[FN47J. M. Romney, "Statement of Governor Romney on SJC Decision on Gay Marriage" (I8 November 2003), online:
Commonwealth of Massachusetts <http://
www.mass.gov/portal/govPR.jsp?gov _pr-gov _pr _ 03III8_statement_gay _marriage_ xmb (23 January 2004); K. Peterson,
"Fifty state rundown on gay-marriage laws", online: Stateline.org <http://www.stateline.org/stateline/?
pa=story&sa=showStorylnfo&id=353058> (24 May 2004).
[FN48]. See e.g. Lewis v. Harris 2003 WL 23I9II14 (N.J. Super. L. 5 November 2003) (unpublished opinion).
[FN49]. "United States' Laws Prohibiting Same-Sex Marriage", online: Liberty Counsel
<http://www.lc.org/ProFamily/DOMAs.htmb (30 April2004).
[FN50]. "California Supreme Court Takes Action in Same-Sex Marriage Cases", online: Judicial Council of California
<http:// www.courtinfo.ca.gov/presscenter/newsreleases/NR15B4.HTM> (I2 March 2004).
[FN51l. "Federal Marriage Amendment", online: Alliance for Marriage <http://
www.allianceformarriage.org/reports/fmalfma.cfm> (28 January 2004).
[FN52]. "President Calls for Constitutional Amendment Protecting Marriage" The White House News, online: The White
House <http:// www.whitehouse.gov/news/releases/2004/02/20040224-2.htmb (26 February 2004).
[FN53J. See e.g. Constitution of the Republic of South Africa, 1996, Act I08 of 1996, s. 9; Canadian Charter of Rights and
Freedoms, s. 15.
[FN54J . R. Maddex, State Constitutions of the United States (Washington, DC: Congressional Quarterly, I998); R. Williams,
"Equality Guarantees in State Constitutional Law" 63 Texas L. Rev. 1195 (1985).
[FN55]. In the unlikely event the issue were to arise in a case attacking federal legislation preserving man/woman marriage,
the constitutional analysis would be the same, cf Bolling v. Sharpe 347 U.S. 497. 74 S. Ct. 693 (1954), as would the constitu-
tional consequence, that is, nationwide genderless marriage.
[FN56l. See e.g. Brown v. Board o(Education, 347 U.S. 483. 74 S. Ct. 686 (1954) (school desegregation); Reynolds v. Sims,
377 U.S. 533. 84 S. Ct. 1362 (1964) (legislative reapportionment) .
[FN57]. Heller v. Doe, 509 U.S. 312. 113 S. Ct. 2637 (1993) at 320.
[FN58]. C. Sunstein, "Foreword: Leaving Things Undecided" (1996) 110 Harvard L Rev 4. 59-64 [Sunstein, "Foreword"].
20I2 Thomson Reuters. No Claim to Orig. US Gov. Works. 001447
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[FN59]. Craig v. Boren. 429 U.S. I90. 97 S.Ct. 45I (1976) at I97. Intermediate scrutiny also applies to distinctions based on
legitimacy of birth. Citv of Cleburne v. Cleburne Living Center, 473 U.S. 432. I05 S.Ct. 3249 (1985) at 441.
[FN60J. United States v. Virginia. 5I8 U.S. 5I5. II6 S.Ct. 2264 (1996) at 533.
[FN6ll. In the context of genderless marriage, compare Singer v. Hara. II Wash App 247. 522 P2d II87 (1974) and B a k e 1 ~
supra note I at 2I5, n. I3 with Baehr v. Lewin, supra note 33 at 63-67, plurality opinion, B a k e l ~ supra note I at 253-62,
Johnson J. concurring and dissenting, and Goodridge, supra note 4 at 245-50, Greaney J., concurring. Additional analysis
appears in P. Linton, "Same-Sex 'Marriage' Under State Equal Rights Amendments" (2002) 46 St. Louis U. LJ 909 and W.
Duncan, "'The Mere Allusion to Gender': Answering the Charge that Marriage is Sex Discrimination" (2002) 46 St. Louis U.
LJ 963.
[FN62l. L. Wardle, "The Curious Case of the Missing Legal Analysis- Baker v. State" (paper presented at the Symposium on
The Future of Same-Sex Marriage Claims: The Third Generation and Beyond, Provo, Utah, August 2003).
[FN63J. Baker, supra note I at 235-43.
[FN64J. Ibid. at I98.
f.ENru. Ibid. at 203.
[FN66J. Ibid. at 204.
[FN67J. Ibid. at 231.
[FN68l. Ibid. at 252.
[FN69J. Ibid. at 254.
[FN70J. Ibid. at 2I6.
[FN7ll. Ibid. at 2I8-I9.
[FN72J. Ibid. at 222.
[FN73J. Ibid.
[FN74J. Goodridge, supra note 4 at 3I2-44.
rrnm. Ibid. at 344-5I.
[FN76J. Ibid. Brief of Defendants-Appellees at II 0.
[FN77J. Ibid. at 344-51.
[FN78J. Ibid. at 333-34.
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[FN79J. Ibid. at 334.
[FN80l. Ibid. at 336.
[FN8ll. EGALE, supra note 2 at paras. I26-I27; Halpern, supra note 3 at para. I21.
[FN82J. Goodridge, supra note 4 at 334.
[FN83J. Ibid. at 390-94.
[FN84J. Andrews v. Law Society (British Columbia), [I989] I SCR I43, 56 DLR (4th) I.
[FN85J. Law v. Canada (Minister of Employment & Immigration), [I999] I SCR 497, I70 DLR (4th) I [Law].
[FN86J. Ibid. at para. 88
[FN87J. Ibid.
[FN88J. Ibid. at para. 54
[FN89J. Halpern, supra note 3 at para. 92 (relying on Lavoie v. Canada. [2002] I SCR 769. 2IO DLR (4th) I93 (2002) at
paras. 809-8I 0.
[FN90J. Ibid. [emphasis in original].
[FN9IJ. Ibid.
[FN92J. Hendricks v. Quebec, [2002] QJ 38I6, [2002] R.D.F. I022 (Qc. Sup. Ct.).
[FN93J. EGALE, supra note 2 at paras. 85-92, II7-I27.
[FN94J. Ibid. at para. 89.
[FN95J. Ibid. at para. 90.
[FN96J. Ibid. at para. I24.
[FN97J. Ibid. at paras. I26-I27.
[FN98J. Halpern, supra note 3 at paras. 78-79, I07.
[FN99l. See e.g. ibid. at para. I07.
[FNIOOJ. Ibid. at para. II6.
[FNI 0 ll. Ibid. at para. II9.
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[FN1 021. Ibid. at para. 121.
[FN103J. Ibid. at para. 122.
[FN104J. Ibid. at para. 123.
[FN105J. Supra note 4 at 332.
[FN1 061. Ibid. at 322.
[FN107J. Ibid. at 333.
[FN108J. Supra note 3 at para. 5.
[FN109J. Halpern v. Toronto (City), [2002] OJ 2714,215 DLR (4th) 223 (Ont. Div. Ct.).
[FN110J. Supra note 2 at para. 87.
[FN111J. Ibid. at para. 90.
[FN112J. Ibid.
[FN113J. Ibid. at para. 124.
[FN114J. Supra note 1 at 228.
[FN115J. Supra note 4 at 331-33; supra note 3 at para. 93; supra note 2 at para. 128; supra note 1 at 217-221.
[FN116J. Supra note 3 at paras. 91, 119, 123.
[FN117J. Supra note 4 at 322.
[FN118J.Baker. supra note 1 at216-17.
[FN119J. This statement may be relevant to other countries that share cultural and legal traditions with Canada and the Unit-
ed States.
[FN120J. Supra note 4 at 381-83.
[FN 121]. See text between note 14 7 and note 150.
[FN122J. Ibid.
[FN123J. Supra note 2 at paras. 87-90; supra note 4 at 333.
[FN124J. Supra note 4 at 332 note 23.
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[FN125J. Opposite-sex couples use ART in far greater numbers than do same-sex couples; the incongruity relative to the
former is overridden by a strong societal aversion to governmental inquiry into marital procreative intentions and capacities.
See text between note 137 and note 142.
[FN126J. Supra note 4 at 332, n. 23.
[FN127J. Ibid.
[FN128l. Ibid. at 382.
[FN129J. Ibid. at 332, n. 23.
[FN130J. Child Trends, "Percentage of Births to Unmarried Women," online: Child Trends Data Bank <http: //
www.childtrendsdatabank.org/indicators/75UnmarriedBirths.cfm> (27 February 2004).
[FN131J. Stephanie J. Ventura & Christine A Bachrach, "Nonmarital Childbearing in the United States, 1940-99," online:
Centers for Disease Control and Prevention <http://www.cdc.gov/nchs/datalnvsr/nvsr48/nvs48 _16.pdf> (27 February 2004) at
15 figure 26.
[FN132J. The author was one of the prosecutors.
[FN133J. This does not purport to be a complete list of all State interests sought to be advanced by the respective criminal
statutes appearing in the example.
[FN134J. See e.g. American Law Institute Model Penal Code (Philadelphia, Pennsylvania ALI 1985) arts. 213, 230, 251.
[FN135J. See text between note 147 and note 150.
[FN136J. J. Finnis "Legal Enforcement of 'Duties to Oneself: Kant v. Neo-Kantians" (1987) 87 Colum. L. Rev. 433 at 433.
[FN137J. Ibid.
[FN138J. Griswold v. Connecticut. 381 US 479. 85 S.Ct. 1678 (1965) [Griswold].
[FN139J. Ibid. at 480.
[FN140J. Ibid. at 485-86.
[FN141J. Ibid. at 487. Goldberg J., concurring.
[FN142J. Supra note 4 at 332. Although arguing that the marriage laws (specifically, the absence of a requirement of marital
procreation) prove that procreation is not central to marriage, the plurality opinion takes no such approach when arguing that
"the exclusive and permanent commitment of the marriage partners to one another ... is the sine qua non of civil marriage."
Massachusetts' no-fault divorce laws belie the reference to "permanence," and no Massachusetts law requires a vow of fideli-
ty ("exclusive") or penalizes a breach of fidelity.
[FN143J. See e.g. T. Janz, "The Evolution and Diversity of Relationships in Canadian Families," online: Law Commission of
Canada <http:// www.lcc.gc.ca/enlthemes/pr/cpraljanz/janz _main. asp> (8 March 2004); D. Cere, The Experts' Story of Court-
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ship (New York: New York Institute for American Values 2000).
[FN144J. D. Cere, "The Conjugal Tradition in Postmodernity: The Closure of Public Discourse?" (paper presented at theRe-
visioning Marriage in Postmodern Culture Conference, Toronto, December 2003) [unpublished] at 2 ("The inflation of the
category of marriage to include all dyadic close relationships (same-sex or opposite-sex) serves as the leverage issue to ad-
vance a complete redefinition of the public meaning of marriage. The proposed redefinition of marriage as 'a union of two
persons' distills marriage down to its pure close relationship essence.") [Cere, "Conjugal"].
[FN145J. Ibid.
[FN146]. See e.g. Tuan Anh Nguyen v. Immigration and Naturalization Service. 533 US 53 at 77. 121 S. Ct. 2053 (2001)
[Tuan Anh Nguyen]; Murphy v. Department of Correction. 429 Mass 736 at 741-42.711 NE2d 149 (1999).
[FN147J. The phrase optimal child-rearing mode was not an assertion that married mother/father child-rearing exclusively
provides the general kind of social goods in question (that is, those goods flowing from a good setting for child-rearing); ra-
ther, the idea was that the married mother/father mode's outcomes are the best or most favourable or advantageous condition
now known.
[FN148J. See e.g. P. Amato & A. Booth, A Generation at Risk (Cambridge, Massachusetts: Harvard University Press 1997);
S. Mayer, What Money Can't Buy (Cambridge, Massachusetts: Harvard University Press 1997); D. Poponoe, Life Without
Father (New York: The Free Press 1996); D. Blankenhorn, Fatherless America (New York: Basic Books 1995); cfM. Gal-
lagher & L. Waite, The Case for Marriage: Why Married People are Happier, Healthier, and Better off Financially (New
York: Doubleday 2000).
[FN149J. The Cordy J. dissent in Goodridge collects citations to much of the most relevant literature. Supra note 4 at 386-
387. For the Sosman J. dissent's treatment of the literature, see ibid. at 358-59.
[FN150J. See e.g. S. Nock, "The Social Costs of De-Institutionalizing Marriage" in A. Hawkins L. Wardle & D. Coolidge,
eds., Revitalizing the Institution of Marriage for the Twenty-First Century (Westport, Connecticut: Praeger 2002) 110
("There is also unequivocal evidence that children fare better in [man/woman] marriages than in other forms of relation-
ships.") Better outcomes for children of the married mother/father mode relative to those for children of the unmarried bio-
logical mother/father mode are confirmed by Popenoe and Whitehead. Their review of the studies led them to conclude that
childrearing outcomes are better generally for married biological parents than for unmarried biological parents and specifical-
ly and dramatically better in avoidance of child-abuse, avoidance of childhood poverty, and permanence of parental relation-
ships. D. Popenoe & B. Whitehead, "Should We Live Together? What Young Adults Need to Know about Cohabitation Be-
fore Marriage: A Comprehensive Review of Recent Research," online: Smart Marriages <http://
www.smartmarriages.com/cohabit.html> (27 April 2004).
Although the correlations showing married mother/father child-rearing as the optimal mode are uncontroversial (except
presently relative to same-sex couple child-rearing), inferences regarding causation and reasons are not; that is because of the
difficulties of controlling for a maddeningly long list of possible variables besides just the basic structure of the respective
modes. The argument is that the correlations established between various child-rearing modes and favorable outcomes (for
two examples, high academic achievement and low crime) show the married mother/father mode as optimal and therefore
that policy makers rationally can, with due caution, infer causation and, in turn, rationally privilege man/woman marriage.
[FN151J. Supra note 4 at 358-59.
[FN152J. Ibid. at 386-87.
[FN153J. Ibid. at 333-34.
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[FN154J. Ibid. at 333-36.
[FN155J. Supra note 144 at 3.
[FN156J. And the plurality opinion's arguments about the good of providing marriage's intangible benefits to children of
same-sex couples would seem to be valid only if that very judge-ordered act of provision does not adversely affect over time
the availability and quality of those benefits for all children, a possibility addressed in this chapter's section B.
[FN157J. Supra note I at 222.
[FN158J. Ibid.
[FN159J. Ibid.
[FN160]. Supra note 4 at 339, n. 30.
[FN16ll. Ibid. at 389-90, Cordy J., dissenting.
[FN162J. Supra note 3 at para. 123.
[FN163J. Supra note 57 at 320-21.
[FN164J. Supra note 3 at para. 92 [emphasis in original].
[FN165J. Ibid. at para. 133.
[FN166J. Ibid. at para. 134.
[FN167J. The differences between burdens in a rational basis context and burdens in a heightened scrutiny context were well
and recently summarized in the O'Connor J. dissent in Tuan Anh Nguyen, supra note 146 at 74-78.
[FN168J. Supra note 4 at 334.
[FN169J. Supra note 3 at para. 123.
[FN170J. Supra note 4 at 358-59.
[FN17ll. Ibid. at 312.
[FN172J. Supra note 144 at 3.
[FN173J. H. Reece, Divorcing Responsibly (Oxford: Hart 2003) at 185:
[A] institution guides and sustains individual identity in the same way as a family, forming individuals by enabling or
disabling certain ways of behaving and relating to others, so that each individual's possibilities depend on the opportunities
opened up within the institution to which the person belongs.
In this way, institutions have a force and an effect somewhat similar to paradigms:
[P]aradigms are deeply embedded in the socialization of adherents and practitioners telling them what is important, what
is legitimate, what is reasonable. Paradigms are normative; they tell the practitioner what to do without the necessity of long
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existential or epistemological considerations.
Y. Lincoln, "The Making of a Constructivist" in Guba The Paradigm Dialog (London: Sage 1990) at 80 (quoting Mi-
chael Patton).
[FN1741. Ibid.; E. Lagerspetz H. Ihaheimo & J. Kotkavirta, eds., On the Nature of Social and Institutional Reality (Juvaskyla,
Finland: SoPhi Academic Press 2001); E. Lagerspetz, The Opposite Mirrors: An Essay on the Conventionalist The01y of In-
stitutions vol. 22 (Dordrecht, Netherlands: Law and Philosophy Library, Kluwer Academic Publishers 1995).
[FN175J. Cere, "Conjugal", at supra note 144 at 3-4.
[FN176J. Ibid. at 4-5 [footnotes omitted].
[FN177J. Ibid. at 3-4 [footnotes omitted].
[FN178l. Supra note 2 at para. 78.
[FN179J. Supra note 109 at paras. 97-98.
[FN180l. Supra note 4 at 337.
[FN181l. Ibid.
[FN182J. Supra note 3 at para. 133.
[FN183J. Ibid. at para. 134.
[FN184J. Supra note 4 at 337.
[FN1851. Ibid.
[FN186]. Supra note 3 at para. 129.
[FN1871. See e.g. J. Halley, "Rights, Regulation, Normalisation: Rhetorics of Justification in the Same-Sex Marriage Debate"
in Wintemute & Andenaes, supra note 6, 97 at 103; J. Millbank & W. Morgan, "Let Them East Cake and Ice Cream: Want-
ing Something 'More' from the Relationship Recognition Menu" in Wintemute & Andenaes, supra note 6, 295 at 297 & n. 5;
cfW. Eskridge, "The Ideological Structure of the Same-Sex Marriage Debate (And Some Postmodern Arguments for Same-
Sex Marriage)" in Wintemute & Andenaes, supra note 6, 113 at 129 table 3 column 3.
[FN188l. Sunstein, "Foreword", supra note 58 at 69-70 [footnotes omitted]:
Official pronouncements about law ... have an expressive function. They communicate social commitments and may
well have major social effects just by virtue of their status as communication .... By communicating certain messages, law
may affect social norms .... Much of the debate about measures relating to equality, or about "animus," concerns the law's
expressive function.
[FN1891. Supra note 4 at 333.
[FN1901. Supra note 3 at para. 94.
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[FN191J. In considering future costs from present actions, a court can take two approaches. Either it can demand that the par-
ty raising the prospect of future unacceptable costs provide some kind of empirical evidence sustaining the prospect or it can
invoke the rational and prudent legislator standard, that is, it can assess the rationality of the full range of considerations that
a reasonable legislator contemplating the present action might consider. The first section of this chapter demonstrated the
problems with the former approach. A strong judicial tradition supports use of the latter approach. See e.g. Heller, supra note
57 at 320-21. Accordingly, the discussion of costs in the text is not fashioned to be a "proof' of costs but a non-exclusive,
rational line of thinking that a reasonable legislator might adopt.
[FN192J. Supra note 144 at 6. Chapter five examines this model and its underlying social theory in detail.
[FN193l. Ibid. at 19.
[FN194J. Ibid. at 2-5.
[FN195J. The author acknowledges his indebtedness to Professor C. Terry Warner for insights and expressions in the formu-
lation of this paragraph.
[FN196]. Reece, supra note 173 at 38:
The next question is who can change the [new] norms .... [One] possibility is dissident groups. When norms are socially
contested, this can lead to the formation of diverse norm communities, such as religious organisations or feminist groups, so
that people who are dissatisfied with the prevailing norms can enter a different and more congenial norm community. But this
is not a complete solution because the social construction of choices runs too deep for someone raised in the dominant com-
munity; it may also be merely reactive to or even defmed by the dominant norm community. Sometimes, the dominant norms
are too damaging to human well-being to leave their overthrow [or resistance] to dissident communities.
[FN197J. Supra note 3 at para. 129.
[FN198J. B. Bix, "Reflections on the Nature ofMarriage" in Hawkins, Wardle & Coolidge, supra note 32, Ill at 112-13:
Marriage is an existing social institution. One might also helpfully speak of it as an existing "social good." The compli-
cation in the analysis is that one cannot fully distinguish the terms on which the good is available from the nature of the
good. As Joseph Raz wrote regarding same-sex marriage, "When people demand recognition of gay marriages, they usually
mean to demand access to an existing good. In fact they also ask for the transformation of that good. For there can be no
doubt that the recognition of gay marriage will effect as great a transformation in the nature of marriage as that from polyga-
mous to monogamous or from arranged to unarranged marriage."
[FN199]. Otis v. Parker. 23 S.Ct. 168. 187 US 606 (1903) 608-609.
[FN200J. "Supreme Court Justices: Oliver Wendell Holmes (1841-1935)", online: Michaelariens.com <http://
www.michaelariends.com/ConLaw/justices/holmes.htm> (29 November 2003).
[FN201J. See e.g. Lochner v. New York. 25 S.Ct. 539. 198 US 45 (1905).
[FN202J. See e.g. E. Guba, The Paradigm Dialog (London: Sage, 1990).
[FN203]. D. Richardson, "Sexuality and Gender" International Encyclopedia of the Social and Behavioral Sciences 14018-
21 (Elsevier Science 2002), online: Science Direct <http://www.sciencedirect.com/science?_ob=ArticleURL&_
udi=B6WVS46RN52G56&_rdoc=25&_hierld=4355&_retworkld=2l&_explode=4355&_
fmt=full& _ orig=na& _ docanchor=& _ idxType=SC&view=c& _ acct=COOOO I 0360& _version= I & _ urlVer-
sion=O&_userid=l26524&md5=38366146fb3ffc0979b8195412228lf9.> (28 November 2003).
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[FN204 J. Ibid.
[FN205J. See e.g. J. Culler, Litermy Themy: A Ve1y Short Introduction (Oxford, Oxfored University Press, I997) 97-IOI; M
Wittig 'One Is Not Born a Woman' in M Wittig (ed) The Straight Mind (Harvester WheatsheafNew York I992).
[FN206J. See e.g. K. Millet, Sexual Politics (London: Virago, I977) at 33-36.
[FN207J. See e.g. C. Pateman, The Disorder of Women: Democracy, Feminism and Political Themy (Cambridge: Polity,
I990) at I, 27-29, I29-3I; C. Pateman, The Sexual Contract, (Cambridge: Polity, I988) at I67, I87-88, 225.
[FN208J. M. Bonauto, "The Freedom to Marry for Same-Sex Couples in the United States of America" in Wintemute & An-
denaes, supra note 6, 177 at I88.
[FN209J. Baker, supra note I at 222.
[FN210J. Ibid. at 254.
[FN2IIJ. Ibid. at 257.
[FN212l. Ibid.
[FN2l3J. Ibid. at 258.
[FN214J. Ibid. at 259.
[FN2I5J. Ibid.
[FN216J. Ibid.
[FN217J. Ibid.
[FN2I8J. Ibid. at 26I-62.
[FN219J. Ibid.
[FN220J. In the exercise of "proving" which social theory most likely informs contemporary American political judgment,
one can point to this bit of evidence: All the serious Democratic contenders for the 2004 presidential nomination stated their
opposition to genderless marriage.
[FN22ll. Supra note 60
[FN222J. Ibid. at 533-34.
[FN223J. Sunstein, "Foreword", supra note 58 at 76.
[FN224J. Ibid.
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[FN225J. Ibid. at 77.
[FN226J. Ibid. at 72-79.
[FN227J. Baker, supra note I at 256, n I3.
[FN228]. Ibid. at 259.
[FN229J. Ibid.
[FN230l. The Goodridge plurality opinion, in a much more cryptic fashion than in the c/d opinion but making the same mis-
takes seen there, attempts to use radical social constructionism to deflect arguments in the Cordy J. dissent premised on
man/woman marriage's unique goods. Goodridge, supra note 4 at 337, n. 28.
[FN23I]. D. Cere "Redefining Marriage and Family: Trends in North American Jurisprudence" (paper presented at Family
Law Project Conference, Harvard University March 2003) at 6. [Cere, "Redefining"]
[FN232l. See e.g. A Giddens, The Transformation of Intimacy: Sexuality, Love and Eroticism in Modern Societies (Califor-
nia: Stanford University Press Stanford, I992).
[FN233J. Cere, "Redefining", supra note 23I at 6.
[FN234]. Ibid. at 7 (referencing the work ofScanzoni, Polonko, Teachman, and Thompson).
[FN235J. American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations (Philadephia:
Executive office, American Law Institute, 2002).
[FN236J. Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Between Adults
Relationships (Ottawa: Law Commission of Canada, 2002).
[FN23 7]. For a discussion of these proposals, see Cere, "Redefining", supra note 23I at 8-I9.
[FN238]. Among the important popularizers of the opposing and alternative view of marriage are the University of Chicago's
Amy and Leon Kass, see e.g. A Kass & L. Kass, eds., Wing to Wing. Oar to Oar: Readings on Courting and Marrying (The
Ethics of Everyday Life) (Notre Dame, Ind.: University of Notre Dame Press, 2000), and David Blankenhorn and the Macks,
see e.g. D. Mack, D. Blankenhorn & C. Mack, eds., The Book of Marriage: The Wisest Answers to the Toughest Questions
(Grands Rapids, Mich.: William B Eerdmans, 200I).
[FN239J. Cere, "Redefining", supra note 23I at I9.
[FN240J. Ibid.
[FN24I ]. Ibid.
[FN242]. Baker, supra note I at 228.
[FN243]. Goodridge, supra note 4 at 332.
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[FN244J. Ibid. at 322.
[FN245J. Halpern, supra note 3 at para. 5.
[FN246J. At least one of the courts was aware, however, of certain of the law reform proposals ultimately grounded in close
personal relationship theory. EGALE, supra note 2 at para. 152.
[FN2471. See e.g. Law v Canada, supra note 85.
[FN248J. S Cowen, "Can 'Dignity' Guide South Africa's Equality Jurisprudence?" (2001) 17(1) S.A.J.H.R. 34, analyzes most
of the relevant cases.
[FN249J. Goodridge, supra note 4 at 312.
[FN250] . Law v. Canada, supra note 85.
[FN2511. Ibid. at para. 2.
[FN252J. Ibid. at para. 52.
[FN253J. Andrews v. Law Society (British Columbia), supra note 84.
[FN254J. Law v. Canada, supra note 85 at para. 29 (quoting Andrews, supra note 84 at 152).
[FN255J. Ibid. at para. 51. The complete quote reads:
It may be said that the purpose of s. 15( 1) is to prevent the violation of essential human dignity and freedom through the
imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy
equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of con-
cern, respect and consideration.
[FN256J. Ibid. at para. 54.
[FN257J. Halpern, supra note 3 at para. 119.
[FN258J. See e.g. D. Gilbert, "Time to Regroup: Rethinking Section 15 of the Charter" (2003) 48 McGill L. J. 627: E.
Mendes, "Taking Equality Into the 21st Century: Establishing the Concept of Equal Human Dignity" (2000) 12(1) N.J.C.L.
1; J. Ross, "Response to Professor Mendes" (2000)12 N.J.C.L. 39.
[FN259J. Cowan, supra note 248, references most of the relevant South African literature.
[FN260J. R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977) at 181.
[FN261J. J. Rawls, A The01y of Justice (Cambridge, Mass.: Belknap, 1971).
[FN262J. Supra note 260 at 159.
[FN263l. Ibid. at 182. Dworkin also argues in this same chapter that Rawls's theory of justice is rights-based, not duty-based
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or goals-based. Ibid. 171-77.
[FN264J. Ibid.
[FN265J. Ibid. at 180.
[FN266J. Ibid. The broad range of arguable derivative rights and goals identified by Dworkin himself foreshadows later con-
cerns with the indeterminacy of the right of equal concern and respect.
[FN267J. Ibid. at 182.
[FN268l. Ibid. at 273.
[FN269J. Ibid. at 273-74.
[FN2701. Ibid. at 275-76.
[FN271J. Ibid. at 277.
[FN2721. Ibid. at 275-76.
[FN2731. Ibid. at 273.
[FN2741. Ibid.
[FN275J. Ibid.
[FN276J. J. Finnis, Natural Law and Natural Rights (Oxford: Clarendon, 1980).
[FN2771. See e.g. Dworkin, supra note 260 at 91, 191,269.
[FN2781. Finnis, supra note 276 at 218. [emphasis in original]
[FN279J. Ibid. at 222.
[FN280l. Ibid.
[FN28ll. J. Ely, "Professor Dworkin's External/Personal Preference Distinction" (1983) Duke L.J. 959 (providing some criti-
cisms and referencing others by Hart, Sager, and Regan).
[FN282]. R. Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, Mass.: Harvard University Press,
2000).
[FN2831. Ibid. at 481, n. 9. It is a commonplace that Dworkin is a moving target. What is important for purposes of Canadian
equality jurisprudence is the content of Dworkin's right to equal concern and respect as the SCC adopted it in 1989, with its
reiterations since.
[FN2841. Mv. H supra note 24.
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[FN285J. Ibid. at para. 124, Iacobucci J, u; Ibid. at para. 254, Gonthier J, dissenting; Ibid. at para. 282, Major J, s 15(1);
Ibid. at paras. 316, 321, Bastarche J, u.
[FN286J. Supra note 17 at, ss. 7, 10, 36(1), 39(1).
[FN28 71. Law v. Canada, supra note 85 at para. 51.
[FN288J. Lawrence v. Texas, supra note 42
[FN289]. Dworkin, supra note 260 at 275-77.
[FN290J. Ibid. at 273.
[FN291J. EGALE, supra note 2 at para. 130; Halpern, supra note 3 at paras. 100-107.
[FN292J. Dworkin, supra note 260 at 273 (the right to equal treatment is "perhaps" properly applicable in the reapportion-
ment cases).
[FN293l. Ibid.
[FN294J. See e.g. Kotch v. Board o[River Port Pilot Comrs. 330 U.S. 552. 67 S.Ct. 910 (1947).
[FN295]. Nixon v. Administrator of General Sen
1
ices. 433 U.S. 425 at 506. 97 S.Ct. 2777 (1977).
[FN296J. Ibid. ("[T]his Court has held that the presumption of constitutionality does not apply with equal force where the
very legitimacy of the composition of representative institutions is at stake.") (citing Revnolds v. Sims. 377 U.S. 533. 84 S.Ct.
1362 (1964)).
[FN297J. Ibid. Of course, a court that has adopted Dworkin's right to equal concern and respect into its equality jurisprudence
may assert that its adoption was of some "core concept" and not of all the elements of the theory as promulgated; in other
words, that the court is not necessarily bound by the theory's self-limitations. In such a case, however, it would seem that the
court would be under a duty to publicly demonstrate the severability of the limitation. That would be especially so where, as
here, the theory is a carefully integrated and unitary piece of legal craftsmanship that does not suggest any rational or logical
basis for severance of the limitation. To jettison a part of the theory that stands in the way of a particular end (genderless mar-
riage) on unpersuasive grounds may fairly open such a court to serious charges against its institutional integrity.
[FN298]. Romer v. Evans. 517 U.S. 620. 116 S.Ct. 1620 (1996) at 633.
[FN299J. Sunstein, "Foreword", supra note 58 at 53. For a penetrating analysis of the United States Supreme Court's use of
"animus", see Steven D. Smith, "Conciliating Hatred" First Things 144 (June/July 2004): 17, online: <
www.flrstthings.com/ftissues/ft0406/articles/smith.htm.>
[FN300]. Goodridge, supra note 4 at 341-42, quoting Palmore v. Sidoti. 466 U.S. 429. 104 S.Ct. 1879 (1984). Almost imme-
diately (in its n. 33), however, the plurality opinion acknowledges that there is no need to address intent; discriminatory effect
is enough.
[FN301l. See e.g. M. Bonauto, "The Freedom to Marry for Same-Sex Couples in the United States of America" in Win-
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temute & Andenaes, supra note 6, 177 at 205.
[FN302J. Law v. Canada, supra note 85 at para. 51
[FN303]. Ibid. at para. 88
[FN304J. Halpern, supra note 3 at paras. 84-87,94, 107.
[FN305J. Even the impulse to magnanimity would come to condemn the judicial action if, in time, the societal costs incurred
(and judicially denied at the outset) mount and mount.
[FN306J. Romer v. Evans, supra note 298
[FN307J. Bowers v. Hardwick. 478 U.S. 186. 106 S.Ct. 2841 (1986), overruled by Lawrence v. Texas, supra note 42.
[FN308]. Romer v. Evans, supra note 298 at 641.
[FN309]. Sunstein, "Foreword", supra note 58 at 64-69.
[FN310l. Ibid. at 67-69.
[FN311l. Griswold v. Connecticut, supra note 138.
[FN312J. Ibid. at 486; 1682. Tradition, as Sunstein notes, plays no comparable limiting role in equality jurisprudence. Sun-
stein, supra note 58 at 69. The most famous American equal protection case, Brown v. Board of Education (together with its
progeny), demonstrates this difference; the long and wide-spread American tradition of race-segregated schools (de jure and
de facto) was not a constraint on the court's power but rather the very target of that power. The limitations on a court's power
under an equality guarantee reside not in tradition but in the polity's equality jurisprudence.
[FN313J. Constitution of the Republic of South Africa, Act 108 of 1996, s. 10.
[FN314l. See e.g. Roe v. Wade. 410 U.S. 113. 93 S.Ct. 705 0973).
[FN315l. See e.g. Baehr v. Lewin, supra note 33 at 551-57.
[FN316J. A good beginning point might be Kant; his treatment of dignity is discussed in Finnis, supra note 136 at 441-42 and
in T. Hill, "Humanity as an End in Itself' (1980) 91 Ethics 84 at 91-92; also see J. Rabkin, "What We Can Learn About Hu-
man Dignity from International Law" (2003) 27 Harv. J.L. & Pub. Pol'y 145.
[FN317J. Supra note 4.
[FN318]. Supra note 46 ..
[FN319J. Dworkin, supra note 260.
[FN320]. Rawls, supra note 261.
[FN321J. Dworkin, supra note 260 at 160.
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[FN322J. Ibid. at 155-56.
[FN323J. Ibid. at 156.
[FN324J. Ibid. at 160.
[FN325J. Ibid.
[FN326l. Ibid.
[FN327J. Ibid.
[FN328J. Ibid.
[FN329l. Ibid. at 161.
[FN330J. Ibid. at 160.
[FN331l. Ibid. at 162.
[FN332J. Ibid. at 163.
[FN333J. Ibid. at 163-68.
[FN334J. Ibid. at 166.
[FN335J. Ibid.
[FN336J. Ibid. at 168.
[FN337J. Ibid.
[FN338J. Ibid.
[FN339l. Goodridge, supra note 4 at 344-51.
[FN340J. See e.g./bid. at 351-53, Spina J. dissenting; ibid. at 365-66, 368-75, Cordy J. dissenting.
[FN341l. Ibid. at 375-79, Cordy J. dissenting.
[FN342J. Ibid. at 350, n. 6.
[FN343J. Ibid.
[FN344J. Ibid.
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[FN345J. Ibid. at 349-50. To the extent this was an invitation to the dissenters to abandon the constructive model and convert
to the "right thing", the invitation was rejected: "However minimal the risks of that redefinition of marriage may seem to us
from our vantage point, it is not up to us to decide what risks society must run, and it is inappropriate for us to arrogate that
power to ourselves merely because we are confident that 'it is the right thing to do."' ibid. at 362, Sosman J dissenting.
[FN346J. Re Opinions of the Justices, supra note 46.
[FN34 71. Ibid. at 570.
[FN348J. Ibid.
[FN349l. Dworkin, supra note 260 at 161.
[FN350J. Ibid.
[FN351J. Ibid. at 163.
[FN352J. Ibid. at 167.
[FN353l. Ibid. at 168.
[FN354J. Ibid.
[FN355J. Ibid. at 166.
21 Can. J. Fam. L. 11
END OF DOCUMENT
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