The Liberty Principle, Gay Marriage, and Sleeping Under Bridges

January 6, 2015

There is much to dislike about McAdams’s bog-standard right-wing “omg, PCness in the university” attacking Cheryl Abbate, with a fair number of the issues articulated in several Daily Nous posts. There are a lot of academic freedom bits to think about in everything from how Abbate handled the student, to McAdams’s response, to the university’s response to McAdams. At first blush, basically everyone except Abbate has behaved rather badly. (Really, Mr. Undergrad? You secretly taped your instructor during a fishing expedition? Sheesh.)

I do think the question she raised in class (roughly, what are some positions that conflict with Rawls’ Liberty principle) and the particular proposition (gay marriage bans or lack of gay marriage conflicts with the Liberty principle) is pretty interesting. So that’s what this blog post is about. I’m going to go with the minimal level of scholarship I can get away with as I don’t have any texts handy and don’t feel like futzing around to get them.

Rawls’ Liberty principle goes roughly (since there are some variants):

Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all;

Now, there are a range of anti-gay marriage legal situations possible. Gay marriage might be unrecognised by the state in a variety of ways (e.g., there’s a legally identical status which is not called “marriage”; there’s a related status, but it doesn’t function the same way e.g., it allows for joint tax returns but only overridable next of kin status). Gay marriage or gay marriage recognition might be affirmatively banned (again, in a variety of ways up to making any sort of homosexual relationship illegal and harshly punished). The basic situation I’ll consider is that we have a legally recognised relationship called “marriage” which has roughly the set of formal and informal benefits and privileges that marriage in the US has and is restricted to opposite sex couples. (I’ll call this the Moderately Sucky Regime (MSR). It’s only moderately sucky because there aren’t punishments for being in a gay relationship and yes this is grading on a curve.) Is this permitted by the Liberty principle?

The “Duh It’s Incompatible” Line

I think this should be the obvious, default starting place. Take two women, Mary1 and Mary2 who different only in that Mary1 loves Juan (a cis-hetero-man) and Mary2 loves Juanita (a cis-lebsian-woman). In the MSR, Mary1 has right to marry Juan (assuming e.g., they both want to get married, they both aren’t otherwise currently  married, etc., so ceteris paribus), but Mary2 does not have the right to marry Juanita. Marrying is either a fairly basic liberty or it’s heavily implicated in a number of basic liberties or it is implied by some basic liberties (various forms of association, for example).

I take it most people think it’s a basic liberty these days. So this argument sets the burden appropriately.

The Majestic Awesomeness of Freedom to Marry Only Outside Your Orientation

There is the oft-quote Faux Liberty Principle (Anatole France):

The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread.

This is a principle driven by formalist equality: As long as there is no formal or perhaps explicit inclusion of group distinction, then the law treats those groups equally. The application of this variant of the principle to gay marriage would be something like:

Hey! Mary2 can get married…to a person of the opposite sex. EVERYONE can get married to someone of the opposite sex. Even straight folks can’t marry people of the same sex. So everyone has exactly the same rights!!!

I think this is a possibly non-homophobic attempt to reconcile anti-gay-marriage with the Liberty principle. Indeed, it could be offered as a reductio of the Liberty principle as a sufficient or correct or useful principle of justice.

Now, with respect to the Abbate case, it’s important to note that the gay marriage instance of the Majestic Equality reading, while justifying the MSR, is not the only instance. The original one will do nicely. One can run it for less controversial marriage situations as well as many other disparate impact laws. The gay marriage version is merely timely not uniquely good. Timely topics can be pedagogically effective but they can also be a pedagogic disaster. This is easily seen when the learning outcome has little to do with the timely topic per se. As timely, you run the risk that people will be too engaged with it either because they have settled and passionate opinions or they just can’t easily separate out the public focus from what’s needed to make the classroom point. So the benefit (the students have knowledge and interest) can be a problem.

This is putting aside the possibility that people might behave badly to the detriment of other students or a reliantly hammering on even the non-homophobic variant might be unduly and pointlessly upsetting to other students. You don’t have to think that one must shield students from every uncomfortable thing to acknowledge that upsetting students in a class when there is no pedagogic benefit attached to it is something that should be avoided. Confusing students can be pedagogically useful as well, but that doesn’t justify all confusings.

The Inadequacy of Majestic Equality

Majestic equality fails because a majestically equal scheme of basic liberties might not be a fully adequate scheme of equal basic liberties. Indeed, it’s trivial to generate loads of obviously bonkers schemes of majestically equal basic liberties: E.g., consider a law which forbids advocacy of Republican (or Democratic) political positions. Hey! They affect everyone equally! Or consider a law forbidding belonging to a Christian religion. Hey! Muslims and atheists are forbidden from joining Catholicism as well! EQUALITY!!! Etc. etc. etc.

Clearly, that a law doesn’t carve out a set of persons by name for specifically restricted liberty doesn’t mean it doesn’t, essentially, restrict liberty for some group. I don’t think it’s at all a stretch to read “fully adequate scheme of equal basic liberties” as excluding such shenanigans. It’s unlikely that purely formal criteria will do the job. (I feel like there must be a theorem to this effect somewhere.)

More Iterations

There are definitely more moves to be made or these can be deepened. However, it’s really easy to get sucked into a US legal discussion or just go into a general discussion of gay marriage. For example, if an anti-er goes for a definitional move, “But ‘marriage’ just MEANS 1 man-1 women because procreation.” (or the “compelling interest” variant), it’s not going to illuminate the Liberty principle very much. Similarly, denying that marriage is a basic right does mean that anti-gay marriage might not violate the Liberty principle per se (though it probably dies on the second principle), but then it’s a bad example. If you do concede it’s a basic right then it’s hard to see how bans aren’t an immediate clash with the liberty principle. If you don’t concede that, then it’s irrelevant. Debating whether it is a basic right is also irrelevant (much of the time) to a discussion of Liberty principle applicability.

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