Why Public Reason Is Incapable of Satisfactorily Resolving the Issue of Same-Sex Marriage - Essay Example

Public reason as conceived by John Rawls is incapable of satisfactorily resolving the issue of same-sex marriage." Discuss this ment. Table of Contents S.No Heading Page No 1 Introduction 3 2 Whether John Rawls’ public reason is incapable of satisfactorily resolving the issue of same-sex marriage? 4 2;1 Public Reason- Meaning 4 2.2 John Rawls and Public Reason 4 2.3 Michael J Sandel argument against legalising Gay Marriages 5 2.4 Is Marriage entirely of the beholder? 8 2.5 If marriage has some meaning, how far will the state go to regulate marriage? 9 3 Conclusion 12 4 Bibliography 14 List of Cases 15 List of Abbreviations 15 1. Introduction Of late, the majority of the liberal-democratic states around the world have started to treat their citizens as free and equal, and have given their consent for permitting same-sex marriages. However,’ non-liberal states’ are still reluctant to legalise the same-sex marriages. Thus, we can say that these non-liberal states are following John Rawls’ public reason for not legalising same-sex marriages. However, supporters of legalising same-sex marriages are arguing that public reason as conceived by John Rawls is incapable of satisfactorily resolving the issue of same-sex marriage. Rawls maintained that ‘the restriction inflicted by public reason is not applicable to all political issues but only relate to those associated with what one can term it as “constitutional fundamentals’ and questions of fundamental justice1. In the United States, where the value of marriage is advocated through public announcements and educational policies, and is obviously associated to the good citizenship, the gay-couple marriage prohibition does not just divest lesbians, gays, and bisexuals of the legal rights of marriage. Further, public reason tries to exclude gays from institutions which is regarded as basic to the good character and public morality. If the exclusion cannot be trounced by public reason, then the symbolic inequality may reasonably impact an individual’s self-respect. Rawls’ defences of same-sex marriage have been made on the footing of public reason and mainly on the fundamentals of neutrality and equality2. This research essay will discuss in detail why there is a need to legalise the same-sex marriage and why the non-liberal states have to disown the Rawls’s public reason, thereby legalising the same-sex marriage and respecting their citizens’ free and equal rights in their desire to choose his or her life companion. 2. Whether John Rawls’ public reason is incapable of satisfactorily resolving the issue of same-sex marriage 2.1 Public Reason – Meaning John Rawls’ public reason is fundamentally a theory for accomplishing legitimacy in a liberal democratic society, where the citizens of a state are regarded as free and equal. Thus, in a liberalised society, liberties and rights of individuals are regarded as significant. Public Reason could be explained as a set of principle that citizens of a liberal society may offer one another as the causes and which they reasonably anticipate the other citizens to reasonably to pursue , especially when basic political issues are at jeopardy and when comprehensive doctrines are at struggle. Rawls presents public reason as level-headedness. Thus, public reason makes the citizens always to seek the public reason for any hot issue3. Same-sex marriages have always been recognised in line with Public Reason on the basis that gays are citizens and hence, citizens are to be regarded as free and equal despite their sexual-orientation or their right to whom they wish to engage their lives. Any refusal of such right to Gay-Marriage, consequently, appears to be against the Public Reason. “On the footing of equality and fairness for everyone, legalisation of gay marriage is always justified”4. 2.2 John Rawls and Public Reason John Rawls’ argues that same-sex marriage should be declared as illegal on public reason. John Rawls’ political tolerance and its epitome of public reason are extremely influential in the present day political philosophy and in constitutional law. When Rawls’ political liberalism forbids same-sex marriage whereas the majority of the liberals support the delimitation of civil marriage to include same-sex unions. In Perry v. Schwarzenegger5, the northern federal district court of California reconstrued the customary rational basis appraisal on the basis of liberal neutrality, which is analogues to Rawls’ notion of ‘public reason’ and reversed the Proposition 8 and held in favour of same-sex marriage6. This reconsideration was enlarged in the 9th Circuit Court’s verdict sustaining the district court’s findings on appeal in Perry v. Brown7. However, O’Brien is of the view that on its own footings, same-sex marriage should have been made illegal. This is mainly due to the fact that all the available debates for supporting same-sex marriage as civil marriage should originate from contentious widespread doctrines about the good, and this infringes the notion of public reasons of Rawls as yet, there remains a publicly reasonable argument for customary marriage8. 2.3 Michael J Sandel argument against legalising Gay Marriages Michael J Sandel exhibits that modern liberals both Democrats and Republicans back the idea that U.S. government should be unbiased and should maintain neutral on religious and moral question and each individual should have the liberty to select his own notion of the good life. The Democrats are of the strong of view that U.S. government should interfere in the economy, and they consented with Republicans as regards to the non-intervention of the U.S. government in cultural and social issues. Sandel raises his strong objection, whether one can agree with the U.S. government’s appreciation of homosexual marriage without deliberating the purposes of such marriages or moral status of such marriages. Sandel also correlates the Aristotle’s viewpoint of ethics and questions which kind of marriage, the U.S. government wants to recognise as legal – whether the marriage between a man and a woman or both the customary and same-sex marriage or want to entrust the solemnising of such marriage by the private associations9. Sandel also poses questions to his students, whether they think that the U.S. government should give legal status to the homosexual marriage in par with the heterosexual marriage and to offer the homosexual couples the same rights as enjoyed by the heterosexual couples. Sandel also raises his objection, whether one can find a solution to the same-sex marriage controversy without looking into homosexual marriage on the religious and moral controversy, such as the “objectives of the marriage and the “ethical status of the homosexuality”. Sandel is of the opinion that one cannot resolve “who should be eligible for marriage” without looking into the objective of such marriage10. Sandel is of the opinion that as per Aristotle, everything has an aim, and one should evaluate telos –the objective- to decide who is eligible for what. For instance, one should evaluate the telos of the flute as to decide who is eligible for the best flutes and hence, the best flute players deserve for the best flutes. Hence, as per Aristotle, one need to decide what marriage is for – so as to decide whether homosexual marriage is to be legalised or not11. Sandel is of the opinion that the U.S. government should not accord legal recognition to the same-sex marriage as it is lacking the ability to attain the telos of the marriage. Sandel believes that the homosexual couple as compared to the heterosexual couple is biologically not competent and they should be stopped from accomplishing the telos of marriage. Sandel stresses that the main objective of a marriage is procreation, which is absent in homosexual marriage. For instance, William Shakespeare’s Sonnet 1 indicates that procreation is passing one’s lovely genes to future generations, who will safeguard human’s beauty by passing from generation to generation. Even though, not all heterosexual couples are able to procreate or have the capability to procreate, but homosexual couples by nature do not possess the ability to procreate. Hence, Sandel strongly suggests that U.S. government should desist from recognising same-sex marriage12. Sandel refers the famous same-sex marriage case Goodridge v. Department of Public Health (2003)13, where Margaret Marshall, the chief justice of Massachusetts Supreme Court found that “the main essence of a marriage is not procreation but a special, affectionate commitment between two partners. Sandel disagrees with the findings of Marshall since she turns down the notion that the main aim of marriage is procreation and concedes with Marshall since she laments about another objective of a marriage. While procreation is one of the main basic telos of the marriage, it is certainly not the only telos of the marriage. One another telos of the marriage is that the pledging of love between two lovers. To put it in other words, whether the government acknowledges the marriage or not, it should not impact or transform the meaning of the marriage between two lovers as long as the commitment to promise love towards the partner or the initiative to accomplish the essential telos of the marriage by delivering a child between two lovers is not impacted. Hence, Sandel is of the opinion that U.S. government should decide whether it should acknowledge only customary marriage or both customary and same-sex marriage14. Sandel raises a question about the variance between an unlawful marriage between the same sex couples and the marriage between heterosexual couples? How does recognition by the government impact the married couple and their marriage? The discrete difference is that government recognition as a legal marriage would offer the safeguard and protection to the married couple with some civil privileges. Many benefits can be enjoyed by the legally married couples which include financial aids, tax issues and property rights. Sandel poses an important question, whether the government have the privilege to decide whether the human beings – despite being heterosexual or homosexual – eligible for marriage? Sandel is of the view that the U.S. government should not differentiate its citizens’ on the basis of their religions, morality, or conceptions despite what the government is determining. For instance, Article VI, the separation of Church and State expresses that “Congress shall enact no law either honouring an establishment of a religion or barring the free exercise thereof. Further, no religious test shall ever be needed as a qualification to any office or any public trust under the United States constitution. Hence, Sandel stresses that the U.S government should be unbiased on religious and moral issues, to offer each citizen’s freedom “to select his own notion of the good life” and should leave the marriage issue to private associations15. 2.4 Is marriage entirely of the beholder? In “Lawrence v. Texas (2003)”16, the U.S. Supreme Court found a common right for the intimate homosexual relations17. According to U.S. Attorney General, the U.S. Supreme court on October 6, 2014 legalised the gay-marriages indirectly in Arizona, Alaska, North Carolina, Idaho, Wyoming and West Virginia by refusing to declare that whether gay couples can get married. As of date, U.S. government now recognises the same-sex marriages in 32 states and in the District of Columbia thereby facilitating these couples to be qualified for federal benefits in these states. Obama government is fully supporting same-sex marriage as it thinks that it is wrong to stop gay couples to get married who are in deep love, having committed relationships and wish to marry. After all, the beauty is in the eye of the beholder and like that the legality of gay marriage is solely in the eye of the beholder18. 2.5 If marriage has some meaning, how far will the state go to regulate marriage? As per U.S. constitutional law, the right to marry is a basic right. In” Zablocki v. Redhail”19, U.S. Supreme Court reaffirmed that right to marry is the fundamental right. In “Roberts’s v United States Jaycees”20, the U.S. Supreme court held that illustrations of protected acts of intimate association included: childbirth, marriage, the raising and education of one’s wards, and cohabitation with one’s relatives21. It is to be noted that the American constitution does not empower either the federal government or state government to administer the right to marry as this being a common law right. It is to be noted that a statute may proclaim that no marriage will be regarded as legal, unless they are sanctified in an agreed manner but such enactment is a different factor as the law stresses that all marriages are to be solemnised in the presence of a clergyman or a magistrate, or that it be authorised by a license or vouched by a witness. Such formal provisions may be regarded as directive in nature instead of being construed as destructive of a right under common law to form the marriage relation by words of present sanction22. Public reason supports civil partnership whereas marriage is arguably a special ceremony retained by comprehensive traditional views. It is often averred that heterosexual is the fundamental of the society and that same-sex marriage would destabilise the social order. Opponents allege that legalising same-sex marriages would result in other undesirable transformations in policy, whether it be an acknowledgement of incest, polygamy, restrictions on the liberty of religious practice or speech, and wider authorisation of novel reproductive technologies23. Despite the ethnicity, race or religion, men and women across the globe are entitled to get married with the one another under the international law. International law establishes marriage as an international right, which obligates the states that refuse same-sex couples the right to marry as infringement of international treaty law. As per ICCPR’s Article XVII and UDHR’s Article XII, “no individual shall not be endangered to unlawful interference with his family, privacy, home, or correspondence. Every individual has the privilege to have safeguard under law against such attacks or interference. Thus, a state that forbids same-sex couples from marrying unreasonably invades of those individual’s privacy and places itself into the ambit of life that the international law has seen as impenetrable by the state24. The same -sex marriages have been officially legalised in six states in the U.S. as of now, the remaining states in U.S. have failed to acknowledge the human rights consequences correlated with the institution of marriage as U.S. has not legalised the gay couple’s marriage nationwide and thus prolongs to infringe the principles of customary law and international treaty25. Those six states that have legalised the gay marriages should serve as an example for the rest of the U.S., which is just as the three Canadian territories which pressured the Canadian Federal government to make it lawful across the nation26. In Goodridge v. Department of Public Health27, Massachusetts Supreme Court held that refusing gay couples the privilege to marry infringed the state constitution, which confirms the equality and conformity of all individuals and bars the creation of second-class citizens28. In Kerrigan v. Commissioner of Public Health29, the Connecticut Supreme Court held that a prohibition in the state constitution against same-sex marriage is infringement of the equal safeguard clause in the Connecticut state constitution30. After this decision, Connecticut legalised the same-sex couple marriage in the state in 2011. Due to Supreme Court ruling in Varnum, et al.v.Brien31, Iowa legalised the gay couple’s marriage in the state32. In Baker v. State of Vermont33, it was held by Vermont Supreme Court that granting the Common Benefits Clause to same-sex couples who strive for just legal safeguards and security for their continued commitment to a lasting, and an intimate relationship is the acknowledgement of our common humanity34. In 2012, New Hampshire enacted laws legalising the gay-couple marriage. However, the religious groups in New Hampshire were unyielding about including “conscience protections” in the law which would relieve religious institutions from engaging in the marriage ceremonies of gay couples. As Few Forum (2008), permitting gay-couples marriage destabilises the institution of marriage, which is regarded as a cornerstone of society and intimidates to extinguish the healthy families that heterosexual families establish. Further, it is argued that permitting same-sex couples to marry will further undermine the institution of marriage when the heterosexual marriage is already in deep trouble due to the significant number of out-of-wedlock births and high divorce rates. It is to be noted that state’s laws in U.S. that denying the gay couples the legal rights to marry are considered to be discriminatory. However, such marriage right is guaranteed under the international human rights law. As per both international customary law and treaty law, states are under obligation to make sure that all individuals have the basic right to marriage. Declining the right to marry to same-sex couples infringes the fundamental norms of non-discrimination and the refusal of individual’s right to marriage, privacy, dignity and association. A global trend towards legalisation of same-sex marriage points out the escalating inclination of states to warrantee same-sex couples the privilege to marriage on the footing of opinion juris or public reason. 3. Conclusion Not permitting same-sex marriage is a crystal clear infringement of rights to privacy, marriage, association, dignity and non-discrimination that are ensured under international human rights law. Sandel is of the opinion that the U.S. government should not accord legal recognition to the same-sex marriage as it is lacking the ability to attain the telos of the marriage. However, any refusal of right to Gay-Marriage, consequently, appears to be against the Public Reason. The Democrats are of the strong of view the U.S. government should practice a non-intervention policy in cultural and social issues. Margaret Marshall in Goodridge v. Department of Public Health (2003) held that “the main essence of a marriage is not procreation but a special, affectionate commitment between two partners. Thus, Sandel stresses that the U.S. government should be unbiased on religious and moral issues, to offer each citizen’s freedom “to select his own notion of the good life” and should leave the marriage issue to private associations. It is to be noted that the American constitution does not empower either the Federal government or State government to administer the right to marry as this being a common law right. In Goodridge v. Department of Public Health, Massachusetts Supreme Court held that refusing gay couples the privilege to marry infringed the state constitution. As of date, U.S. government now recognises the same-sex marriages in 32 states and in the District of Columbia thereby facilitating these couples to be qualified for federal benefits in these states. Due to Supreme Court ruling in Varnum, et al.v.Brien, Iowa legalised the gay couple’s marriage in the state. In view of the above findings, this research essay concludes that public reason as conceived by John Rawls is incapable of satisfactorily resolving the issue of same-sex marriage. Bibliography Books Abbey R, John Rawls (Pen State Press 2013) Brems E, Human Rights: Universality and Diversity (Martinus Nijhoff Publishers 2001) Finkelman P, Encyclopaedia of American Civil Liberties (Routledge 2013)1 Ginsburg T & Dixon R, Comparative Constitution Law (Edward Elgar Publishing 2011) Johnson, W S. A Time to Embrace: Same-sex Relationship in Religion, Law and Politics (Wm. B. Eerdmans Publishing 2012) Konovitz J R, Constitutional Law (Routledge 2014) Lister A, Public Reason and Political Community (A&C Black 2013) Pierceson J, Courts, Liberalism and Rights: Gay Law and Politics (Temple University Press 2012) Rawls J, Political Liberalism (Columbia University Press 1996) Sandel M J, Episode 12: Part 1 – Debating the Same – Sex Marriage. (Harvard University 2009) Sarat A, Special Issue: The Discourse of Judging (Emerald Group Publishing 2012) Shahidullah, S M., Comparative Criminal Justice Systems (Jones & Bartlett 2012) Sovereign Education and Defence Ministry, De Facto Government Scam, Form # 5.043 (Sovereign Education and Defence Ministry Publication 2012) Journal Articles O’Brien, B M ‘Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family’ [2012] The British Journal of American Legal Studies Vol. 1(2) Rawls J ‘Idea of Public Reason Revisited’ [1997] The University of Chicago Law Review 64, 795 Websites Goodnough A, New Hampshire Legalises Same-sex Marriages (3 June 2009) < http://www.nytimes.com/2009/06/04/us/04marriage.html?_r=0> accessed 3 November 2014 Press TV, ‘Holder: U.S. Recognising same-sex marriage in six more states’ (3 November 2014) < http://www.presstv.ir/detail/2014/10/26/383734/us-to-recognize-gay-marriage-in-6-states/> accessed 3 November 2014 List of Case Laws Baker v. State of Vermont S1009-97CnC (1997) Goodridge v. Department of Public Health (2003), 798 NE 2d 941 Kerrigan v. Commissioner of Public Health 289 Conn. 135, 957 A.2d 407 (2008) Lawrence v. Texas (2003) 539 US. 558 (2003). 63 Perry v. Brown No. 10-16696 (9th Cir. Feb. 7, 2012) Perry v. Schwarzenegger 702 F.Supp. 2d 921 (N.D.Cal., 2010). 23. Roberts’s v United States Jaycees 468 U.S. 609 (1984) (2003) 798 NE 2d 941 Varnum, et al.v.Brien (763 NW 2d 862) Zablocki v. Redhail 434 U.S. 374 (1978) List of Abbreviations ICCPR- International Convention on Civil and Political Rights UDHR- Universal Declaration of Human Rights Read More