Genderless Marriages, Neutral Constitutions, Bloodless Persons and the Unbearable Lightness of the Good
posted by Robin West
A few thoughts on Kathy Baker and Deborah Hellman’s colloquoy:
Obviously, no matter how much we might wish it to be, civil marriage, whether its called marriage or union, cannot be both gendered and genderless; if respect for persons or pluralism counsels that the state should be neutral on that question, then genderless has won out. Anyone who believes that marriage is by definition a relationship that is centered on “heterosexual intercourse between a man and a woman of the reproductive kind,” as Robert George and John Finnis and many others somewhat awkwardly claim and vehemently believe, will certainly not have their understanding of marriage validated, or respected, by such a neutral state. A neutral state is non-neutral by virtue of its “leave-it-to-the-individual”-neutrality, wherever such definitional clarity is required.
How to square the circle? As a number of social conservatives as well as a good many progressives have sensibly concluded, perhaps the reasonable solution to this non-neutral neutral conundrum is for the state to remove itself from the business of sanctioning marriages. Marriage, then, would be a religious or secular institution, depending on the desires of hte participants, but either way it would be privatized, and then the state can go back to its primary business of enforcing contracts, including contracts between consenting adults for various intimate and not so intimate matters. Then the state would be neutral with no disabling paradoxes, and marriage could be whatever religious traditions or secular humanists wish it to be.
The problem with this happily neutral solution, as Kathy rightly notes, is that marriage is more than a relationship and more than heterosexual intercourse of the reproductive sort. It is also a semi privatized social welfare net: married partners are less likely to fall into poverty when calamity hits. They have access to their spouse’s social security payments, military benefits, pensions, and of course health insurance. We don’t have a robust public welfare net, so that semi privatized one does matter, and a great deal. But, if that’s all that civil marriage is — a semi-private semi-public safety net — then there’s obviously no reason to limit it to opposite couples, simple fairness requires that we expand it to same sex as well, as the marriage equality advocates tirelessly point out. The problem with that happy solution, of course, is that if we so expand it, it should become obvious that there’s no reason to limit it to “sex”‘-ed relationships either, whether same sex or opposite sex or both… why not the same benefits, the same safety net, for the grown woman caring for her elderly parents, or the two siblings for each other? After all, what’s sex got to do with it? Nothing, really. And if we expand it to these non sex-ed relationships as well, then why limit it to relationships at all, why not simply pair everyone as they enter adulthood randomly by social security number with some other partner, if they haven’t managed to partner themselves off, either erotically or emotionally, so that everyone will have the benefit of someone else’s insurance policy or retirement benefits?
To stop this slope, as Kathy says, there does indeed have to be something worth saying, about relationships — if one wants to stop the slide at relationships. Perhaps we should extend these benefits to people in relationships, rather than through a random buddy system, if there’s something good about relationships. That requires, presumably, some sort of view about what’s good for people — put differently, some view about the nature of the good.
To Deborah — its so good to hear your voice! — should the Constitution be read as based on a conception of hte good? I’d like first to distinguish two different quesitons, or views: one is the claim, made by Dworkin and Ackerman back in the seventies, and by many since then, that liberalism requires state neutrality toward conceptions of the good, from the quite different contention that the Constitution does not itself presuppose a conception of the good. ITs easy to conflate these two, but we shouldn’t. The liberal claim seems to me dubious, both with respect to liberalism itself — historically liberalism has been committed to pretty well developed conceptions of the good, the claimed centrality of state neutrality is a relatively modern intra-liberal invention – but also on the merits, so to speak: it is also simply an unappealing political philosophy. Too much state neutrality toward conceptions of the good tends toward corporate personhood, existential threats to big bird and NPR, inadequate support for public education, an inability or studied refusal to articulate compelling arguments for health care, sex education, in terms of the qualities of people’s lives, and so on. As I argue in my book, one other cost of contemporary liberalism’s commitment to this dubious premise is that partly as a consequnece, we don’t have a progressive natural law: liberals disdain the entire tradition, in part, because of their antipathy toward conceptions of the good, and antipathy toward the notion that the state should entertain them. So the part of the natural law that I believe is of most interest — the part inspired by Aquinas and most developed by Finnis and his students, that explores the content of the Common good and the role of the state, and of law, in realizing it — suffers from a lack of participation by those who ought to be most engaged.
But whether or not the Constitution should rest on some such conception is another question, and that’s Deborah’s question. In liberal, constitutionalized discourse, where the Constitution plays an outsized role in political debate, political questions tend to become almost immeidately “constitutionalized,” and therefore “legalized” and therefore “judicialized”: the quesiton, for example, should the state outlaw abortion (or hate speech, or flag burning, or pornography, or interracial marriage) becomes, almost as soon as its uttered, would it be constitutional for the state to outlaw abortion (and so on). That quesiton,because its a constitutional quesiton, becomes, immediately, a “legal” question in a culture such as this one where constitutions are presumed to be part of our positive law. And because its a “legal” question, it becomes, almost immeidately, because of the role of courts in our system,a judicial quesiton for the courts to answer. So political discussion of the wisdom of outlawing abortion, hate speech, flag burning, pornography, and so on is put through what i call the legal question doctrine funnel: it all eventually becomes constitutional-legal questions, to be answered by Courts, primarily by reference to past authority. This leaves questions of “the good” –both the goodness of abortion, flags and so on, and the goodness of criminalizing or not those actions, and the goodness of having the liberty to ake the decisions oneself, and the goodness of democratic resolutions of those quesitons — off the table. A thick constitution, unlike a thin one, takes more and more under its wing so to speak. So as our constitutional discourse expands, our political discourse, and particularly political discourse about the good, is to that degree impoverished. So, for that reason alone, which is quite different from Deborah’s, I believe that a thin Constitution like the one Deborah defends is appealing, on grounds, simply, that the thinner the Constitution, the less it does, and therefore the less it risks impoverishing political (and legal) discourse regarding the nature of the good. A thin Constitution might be the closest we get to a Constitution outside the courts.
But there’s a substantial downside to that trade-off, which is discussed in my first chapter, and that is the tendency of progressive or liberal constitutionalists, rigorously committed to both state neutrality as a tenet of liberalism and state neutrality as a tenet of constitutionalism, to in effect and unknowingly simply cede the ground of goodness, and what it does and doesn’t require of states, to others not so skittish about such commitments. Neutral constitutionalism tends toward decidedly libertarian and market based outcomes for now familiar reasons, one of which though is the willingness, indeed the eagerness, of libertarian and social conservative constitutionalists to build, unapologetically so to speak, on the insights of both libertarian and social conservatiev conceptions of the good. Unlike liberal constitutionalists, they’re not so troubled by the idea of a Constitution committed to a conception of the good, so long as its the correct conception. Those arguments, then, tend to go unmatched, and win by default. We don’t have a much developed understanding of the contribution of decent gun control laws to the goodness of secure, fear- ree living, in domestic homes or on the streets, that matches the developed understanding of the contribution of liberty to the goodness of an autonomous life, just as (and for some of the same reasons that) we don’t hae a fourteenth amendment argument for the necessity of gun control to the equal protection of the law, to match the argument for the Second Amendment so as to protect liberty. We don’t have an argument for the necessity of health care to a good life, to match the argument for the necessity of individual liberty to make market choices regarding insurance purchases, just as, and for some of the same reasons, that we don’t have much of an argument for the necessity of health care (or education) to the privileges and immunities, or the substantive due process rights, or the general welfare, to match arguments for the necessity of individual liberty and state privilege over these decisions. We don’t have an argument for the necessity of a decent social welfare net to the “General Welfare” or to the Common Good, to counter arguments for the centrality of state or individual sovereignty and the marginality of community to the Good Life that are so deeply embedded in libertarian arguments to the contrary. And so on. So there’s an awful lot of ground being conceded, both in the literal courts and the various courts of public opinion, by virtue of liberal insistance on state neutrality toward questions of the good.
Whether the Constitution requires these more robust arguments about the nature of the good is a hard question — the text itself might demand more of it than our liberal insistence to the contrary seems to suggest. But even if Deborah is right that pluralism counsels a thin, goodless constitution, or if i’m right above that a goodless constitution might be desirable for other reasons, it should not shut down liberal-legal conservations regarding the nature of the good, the good life, and the relation of law to both. There are reasons to be worried, no doubt, when the state becomes the nanny state, taking on the responsibility of deciding on our behalf the size of our sodas, the composition of our families, the best configuration of gender roles, the tradeoffs we should be making between consumption and pollution, whether we should be buying guns or butter. There are also reasons to be worried, though, when the state becomes so dissociated from the human good it exists to promote that it — that would be we — forget that humanity of citizens, the frailty, mortality and fragility of human life, the miseries of hunger and cold, the feel of pleasures, happiness, security that its policies can indeed promote or frustrate. More discussion of the Common Good, and the contribution of law and lawyers to it, would seem all the more essential, should we concede, which perhaps we should, the strength of the case for a constitutional diet.