The Aspiration to Neutrality
May 4, 2010
John F. Kennedy’s view of religion as a private, not public, affair reflected more than the need to disarm anti-Catholic prejudice. It reflected a public philosophy that would come to full expression during the 1960s and 70s — a philosophy that held that government should be neutral on moral and religious questions, so that each individual could be free to choose his or her own conception of the good life.
Both major political parties appealed to the idea of neutrality, but in different ways. Generally speaking, Republicans invoked the idea in economic policy, while Democrats applied it to social and cultural issues. Republicans argued against government intervention in free markets on the grounds that individuals should be free to make their own economic choices and spend their money as they pleased; for government to spend taxpayers’ money or regulate economic activity for public purposes was to impose a state-sanctioned vision of the common good that not everyone shared. Tax cuts were preferable to government spending, because they left individuals free to decide for themselves what ends to pursue and how to spend their own money.
Democrats rejected the notion that free markets are neutral among ends and defended a greater measure of government intervention in the economy. But when it came to social and cultural issues, they, too, invoked the language of neutrality. Government should not “legislate morality” in the areas of sexual behavior or reproductive decisions, they maintained, because to do so imposes on some the moral and religious convictions of others. Rather than restrict abortion or homosexual intimacies, government should be neutral on these morally charged questions and let individuals choose for themselves.
John Rawls
In 1971 , John Rawls ‘s A Theory Of Justice offered a philosophical defense of the liberal conception of neutrality that Kennedy’s speech had intimated. In the 1980s, the communitarian critics of liberal neutrality questioned the vision of the freely choosing, unencumbered self that seemed to underlie Rawls’s theory. They argued not only for stronger notions of community and solidarity but also for a more robust public engagement with moral and religious questions.
In 1993, Rawls published a hook, Political Liberalism, that recast his theory in some respects. He acknowledged that, in their personal lives, people often have affections, devotions, and loyalties that they believe they would not, indeed could and should not, stand apart from.
They may regard it as simply unthinkable to view themselves apart from certain religious, philosophical, and moral convictions, or from certain enduring attachments and loyalties.” To this extent, Rawls accepted the possibility of thickly constituted, morally encumbered selves. But he insisted that such loyalties and attachments should have no bearing on our identity as citizens. In debating justice and rights, we should set aside our personal moral and religious convictions and argue from the standpoint of a “political conception of the person,” independent of any particular loyalties, attachments, or conception of the good life.
Why should we not bring our moral and religious convictions to bear in public discourse about justice and rights? Why should we separate our identity as citizens from our identity as moral persons more broadly conceived? Rawls argues that we should do so in order to respect “the fact of reasonable pluralism” about the good life that prevails in the modern world. People in modern democratic societies disagree about moral and religious questions; moreover these disagreements are reasonable. “It is not to be expected that conscientious persons with full powers of reason, even after free discussion, will all arrive at the same conclusion.”
According to this argument, the case for liberal neutrality arises from the need for tolerance in the face of moral and religious disagreement. “Which moral judgments are true, all things considered, is not a matter for political liberalism,” Rawls writes. To maintain impartiality between competing moral and religious doctrines, political liberalism does not “address the moral topics on which those doctrines divide.”
The demand that we separate our identity as citizens from our moral and religious convictions means that, when engaging in public discourse about justice and rights, we must abide by the limits of liberal public reason. Not only may government not endorse a particular conception of the good; citizens may not even introduce their moral and religious convictions into public debate about justice and rights. For if they do, and if their arguments prevail, they will effectively impose on their fellow citizens a law that rests on a particular moral or religious doctrine.
How can we know whether our political arguments meet the requirements of public reason, suitably shorn of any reliance on moral or religious views? Rawls suggests a novel test: “To check whether we are following public reason we might ask: how would our argument strike us presented in the form of a Supreme Court opinion?”As Rawls explains, this is a way to make sure that our arguments are neutral in the sense that liberal public reason requires; “The justices cannot, of course, invoke their own personal morality, nor the ideals and virtues of morality generally. Those they must view as irrelevant. Equally, they cannot invoke their or other people’s religious or philosophical views.”When participating as citizens in public debate, we should observe a similar restraint. Like Supreme Court justices, we should set aside our moral and religious convictions, and restrict ourselves to arguments that all citizens can reasonably be expected to accept.
Liberal “Neutrality” and the Politics of Obama
This is the ideal of liberal neutrality that John Kennedy invoked and Barack Obama rejected. From the 1960s through the l980s, Democrats drifted toward the neutrality ideal, and largely banished moral and religious argument from their political discourse. There were some notable exceptions. Martin Luther King, Jr., invoked moral and religious arguments in advancing the cause of civil rights; the anti-Vietnam War movement was energized by moral and religious discourse; and Robert E Kennedy, seeking the Democratic presidential nomination in 1968, tried to summon the nation to more demanding moral and civic ideals. But by the 1970s, liberals embraced the language of neutrality and choice, and ceded moral and religious discourse to the emerging Christian right.
With the election of Ronald Reagan in 1980, Christian conservatives became a prominent voice in Republican politics. Jerry Farwell’s Moral Majority and Pat Robertson’s Christian Coalition sought to clothe the “naked public square”and to combat what they saw as the moral permissiveness of American life. They favored school prayer, religious displays in public places, and legal restrictions on pornography, abortion, and homosexuality. For their part, liberals opposed these policies, not by challenging the moral judgments case by case, but instead by arguing that moral and religious judgments have no place in politics.
This pattern of argument served Christian conservatives well, and gave liberalism a bad name. In the 1990s and early 2000s, liberals argued, somewhat defensively, that they, too, stood for “values,” by which they typically meant the values of tolerance, fairness, and freedom of choice. (In an awkward reach for resonance, 2004 Democratic presidential nominee John Kerry used the words value or values thirty-two times in his convention acceptance speech.) But these were the values associated with liberal neutrality and the constraints of liberal public reason. They did not connect with the moral and spiritual yearning abroad in the land, or answer the aspiration for a public life of larger meaning.
Unlike other Democrats, Barack Obama understood this yearning and gave it political voice. This set his politics apart from the liberalism of his day. The key to his eloquence was not simply that he was adept with words. It was also that his political language was infused with a moral and spiritual dimension that pointed beyond liberal neutrality.
Each day, it seems, thousands of Americans are going about their daily rounds — dropping off the kids at school, driving to the office, flying to a business meeting, shopping at the mall, trying to stay on their diets — and they’re coming to realize that something is missing. They are deciding that their work, their possessions, their diversions, their sheer busyness, is not enough. They want a sense of purpose, a narrative arc to their lives. . . If-we truly hope to speak to people where they’re at — to communicate our hopes and values in a way that’s relevant to their own — then as progressives, we cannot abandon the field of religious discourse.
Obama’s claim that progressives should embrace a more capacious, faith-friendly form of public reason reflects a sound political instinct. It is also good political philosophy. The attempt to detach arguments about justice and rights from arguments about the good life is mistaken for two reasons: First, it is not always possible to decide questions of justice and rights without resolving substantive moral questions; and second, even where it’s possible, it may not be desirable.
The Abortion and Stem Cell Debates
Consider two familiar political questions that can’t be resolved without taking a stand on an underlying moral and religious controversy — abortion and embryonic stem cell research. Some people believe that abortion should be banned because it involves the taking of innocent human life. Others disagree, arguing that the law should not take sides in the moral and theological controversy over when human life begins; since the moral status of the developing fetus is a highly charged moral and religious question, they argue, government should be neutral on that question, and allow women to decide for themselves whether to have an abortion.
The second position reflects the familiar liberal argument for abortion rights. It claims to resolve the abortion question on the basis of neutrality and freedom of choice, without entering into the moral and religious controversy. But this argument does not succeed. For, if it’s true that the developing fetus is morally equivalent to a child, then abortion is morally equivalent to infanticide. And few would maintain that government should let parents decide for themselves whether to kill their children. So the “pro-choice” position in the abortion debate is not really neutral on the underlying moral and theological question; it implicitly rests on the assumption that the Catholic Church’s teaching on the moral status of the fetus — that it is a person from the moment of conception — is false.
To acknowledge this assumption is not to argue for banning abortion. It is simply to acknowledge that neutrality and freedom of choice are not sufficient grounds for affirming a right to abortion. Those who would defend the right of women to decide for themselves whether to terminate a pregnancy should engage with the argument that the developing fetus is equivalent to a person, and try to show why it is wrong. It is not enough to say that the law should be neutral on moral and religious questions. The case for permitting abortion is no more neutral than the case for banning it. Both positions presuppose some answer to the underlying moral and religious controversy.
The same is true of the debate over stem cell research. Those who would ban embryonic stem cell research argue that, whatever its medical promise, research that involves the destruction of human embryos is morally impermissible. Many who hold this view believe that personhood begins at conception, so that destroying even an early embryo is morally on a par with killing a child.
Proponents of embryonic stem cell research reply by pointing to the medical benefits the research may bring, including possible treatments and cures for diabetes, Parkinson’s disease, and spinal cord injury. And they argue that science should not be hampered by religious or ideological interference; those with religious objections should not be allowed to impose their views through laws that would ban promising scientific research.
As with the abortion debate, however, the case for permitting embryonic stem cell research cannot be made without taking a stand on the moral and religious controversy about when personhood begins. If the early embryo is morally equivalent to a person, then the opponents of embryonic stem cell research have a point; even highly promising medical research would not justify dismembering a human person. Few people would say it should be legal to harvest organs from a five-year-old child in order to promote life-saving research. So the argument for permitting embryonic stem cell research is not neutral on the moral and religious controversy about when human personhood begins.
It presupposes an answer to that controversy — namely that the pre-implantation embryo destroyed in the course of embryonic stem cell research is not yet a human being.
With abortion and embryonic stem cell research, it’s not possible to resolve the legal question without taking up the underlying moral and religious question. In both cases, neutrality is impossible because the issue is whether the practice in question involves taking the life of’ a human being. Of course, most moral and political controversies do not involve matters of life and death. So partisans of liberal neutrality might reply that the abortion and stem cell debates are special cases; except where the definition of the human person is at stake, we can resolve arguments about justice and rights without taking sides in moral and religious controversies. But this isn’t true, either.
Same-Sex Marriage
Consider the debate over same-sex marriage. Can you decide whether the state should recognize same-sex marriage without entering into moral and religious controversies about the purpose of marriage and the moral status of homosexuality? Some say yes, and argue for same-sex marriage on liberal, nonjudgmental grounds: whether one personally approves or disapproves of gay and lesbian relationships, individuals should be free to choose their marital partners. To allow heterosexual but not homosexual couples to get married wrongly discriminates against gay men and lesbians, and denies them equality before the law.
If this argument is a sufficient basis for according state recognition to same-sex marriage, then the issue can be resolved within the bounds of liberal public reason, without recourse to controversial conceptions of the purpose of marriage and the goods it honors. But the case for same-sex marriage can’t be made on nonjudgmental grounds. It depends on a certain conception of the telos of marriage — its purpose or point. And, as Aristotle reminds us, to argue about the purpose of a social institution is to argue about the virtues it honors and rewards.
The debate over same-sex marriage is fundamentally a debate about whether gay and lesbian unions are worthy of the honor and recognition that, in our society, state-sanctioned marriage confers. So the underlying moral question is unavoidable.
To see why this is so, it’s important to bear in mind that a state can take three possible policies toward marriage, not just two. It can adopt the traditional policy and recognize only marriages between a man and a woman; or it can do what several states have done, and recognize same-sex marriage in the same way it recognizes marriage between a man and a woman; or it can decline to recognize marriage of any kind, and leave this role to private associations.
These three policies can be summarized as follows:
- Recognize only marriages between a man and a woman.
- Recognize same-sex and opposite-sex marriages.
- Don’t recognize marriage of any kind, but leave this role to private associations.
In addition to marriage laws, states can adopt civil union or domestic partnership laws that grant legal protections, inheritance rights, hospital visitation rights, and child custody arrangements to unmarried couples who live together and enter into a legal arrangement. A number of states have made such arrangements available to gay and lesbian partners. In 2003, Massachusetts, by a ruling of its Supreme Court, became the first state to accord legal recognition to same-sex marriage (policy 2). In 2008, California’s Supreme Court also ruled in favor of a right to same-sex marriage, but a few months after the ruling, a majority of the electorate overturned that decision in a statewide ballot initiative. In 2009, Vermont became the first state to legalize gay marriage by legislation rather than by judicial.
Policy 3 is purely hypothetical, at least in the United States; no state has thus far renounced the recognition of marriage as a government function. But this policy is nonetheless worth examining, as it sheds light on the arguments for and against same-sex marriage.
Policy 3 is the ideal libertarian solution to the marriage debate. It does not abolish marriage, but it does abolish marriage as a state-sanctioned institution. It might best be described as the disestablishment of marriage. Just as dis-establishing religion means getting rid of an official state church (while allowing churches to exist independent of the state), dis-establishing marriage would mean getting rid of marriage as an official state function.
The opinion writer Michael Kinsley defends this policy as a way out of what he sees as a hopelessly irresolvable conflict over marriage. Proponents of gay marriage complain that restricting marriage to heterosexuals is a kind of discrimination. Opponents claim that if the state sanctions gay marriage, it goes beyond tolerating homosexuality to endorsing it and giving it “a government stamp of approval. “The solution, Kinsley writes, is “to end the institution of government-sanctioned marriage,” to “privatize marriage.” Let people get married any way they please, without state sanction or interference.
Let churches and other religious institutions continue to offer marriage ceremonies. Let department stores and casinos get into the act if they want. . . . Let couples celebrate their union in any way they choose and consider themselves married whenever they want.
And, yes, if three people want to get married, or one person wants — to marry him or herself, and someone else wants to conduct a ceremony and declare them married, let ‘em.
“If marriage were an entirely private affair,” Kinsley reasons, “all the disputes over gay marriage would become irrelevant. Gay marriage would not have the official sanction of government, but neither would straight marriage.” Kinsley suggests that domestic partnership laws could deal with the financial, insurance, child support, and inheritance issues that arise when people co-habit and raise children together. He proposes, in effect, to replace all state-sanctioned marriages, gay and straight, with civil unions.
From the standpoint of liberal neutrality, Kinsley’s proposal has a clear advantage over the two standard alternatives (policies 1 and 2): It does not require judges or citizens to engage in the moral and religious controversy over the purpose of marriage and the morality of homosexuality. Since the state would no longer confer on any family units the honorific title of marriage, citizens would be able to avoid engaging in debate about the telos of marriage, and whether gays and lesbians can fulfill it.
Relatively few people on either side of the same-sex marriage debate have embraced the disestablishment proposal. But it sheds light on what’s at stake in the existing debate, and helps us see why both proponents and opponents of same-sex marriage must contend with the substantive moral and religious controversy about the purpose of marriage and the goods that define it. Neither of the two standard positions can be defended within the bounds of liberal public reason.
Of course, those who reject same-sex marriage on the grounds that it sanctions sin and dishonors the true meaning of marriage aren’t bashful about the fact that they’re making a moral or religious claim. But those who defend a right to same-sex marriage often try to rest their claim on neutral grounds, and to avoid passing judgment on the moral meaning of marriage. The attempt to find a nonjudgmental case for same-sex marriage draws heavily on the ideas of nondiscrimination and freedom of choice. But these ideas cannot by themselves justify a right to same-sex marriage. To see why this is so, consider the thoughtful and nuanced opinion written by Margaret Marshall, Chief Justice of the Massachusetts Supreme Court; in the court’s ruling in Goodridge v. Dept. of Public Health (2003), the same-sex marriage case.
Marshall begins by recognizing the deep moral and religious disagreement the subject provokes, and implies that the court will not take sides in this dispute: Many people hold deep-seated religious, moral, and ethical convicEons that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. “Our obligation is to define the liberty of all, not to mandate our own moral code.”
As if to avoid entering into the moral and religious controversy over homosexuality, Marshall describes the moral issue before the court in liberal terms — as a matter of autonomy and freedom of choice. The exclusion of same-sex couples from marriage is incompatible with “respect for individual autonomy and equality under law” she writes. The liberty of “choosing whether and whom to marry would be hollow” if the state could “foreclose an individual from freely choosing the person with whom to share an exclusive commitment. “The issue, Marshall maintains, is not the moral worth of the choice, but the right of the individual to make it — that is, the right of the plaintiffs “to marry their chosen partner?”
But autonomy and freedom of choice are insufficient to justify a right to same-sex marriage. If government were truly neutral on the moral worth of all voluntary intimate relationships, then the state would have no grounds for limiting marriage to two persons; con-sensual polygamous partnerships would also qualify. In fact, if the state really wanted to be neutral, and respect whatever choices individuals wished to make, it would have to adopt Michael Kinsley’s proposal and get out of the business of conferring recognition on any marriages.
The real issue in the gay marriage debate is not freedom of choice but whether same-sex unions are worthy of honor and recognition by the community — whether they fulfill the purpose of the social institution of marriage. In Aristotle’s terms, the issue is the just distribution of offices and honors. It’s a matter of social recognition.
Notwithstanding its emphasis on freedom of choice, the Massachusetts court made clear that it did not intend to open the way to polygamous marriage. It didn’t question the notion that government may confer social recognition on some intimate associations rather than others, nor did the court call for the abolition, or disestablishment, of marriage.
To the contrary, Justice Marshall’s opinion offers a paean to marriage as “one of our community’s most rewarding and cherished institutions.” It argues that eliminating state-sanctioned marriage “would dismantle a vital organizing principle of our society.”
Rather than abolish state-sanctioned marriage, Marshall argues for expanding its traditional definition to include partners of the same sex. In doing so, she steps outside the bounds of liberal neutrality to affirm the moral worth of same-sex unions, and to offer a view about the purpose of marriage, properly conceived. More than a private arrangement between two consenting adults, she observes, marriage is a form of public recognition and approval. “In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State.” This feature of marriage brings out its honorific aspect: “Civil 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.”
If marriage is an honorific institution, what virtues does it honor? To ask that question is to ask about the purpose, or telos, of marriage as a social institution. Many opponents of same-sex marriage claim that the primary purpose of marriage is procreation. According to this argument, since same-sex couples are unable to procreate on their own, they don’t have a right to marry. They lack, so to speak, the relevant virtue.
This teleological line of reasoning is at the heart of the case against same-sex marriage, and Marshall takes it on directly. She does not pretend to be neutral on the purpose of marriage, but offers a rival interpretation of it. The essence of marriage, she maintains, is not procreation but an exclusive, loving commitment between two partners — be they straight or gay.
Now, how, you might ask, is it possible to adjudicate between rival accounts of the purpose, or essence, of marriage? Is it possible to argue rationally about the meaning and purpose of morally contested social institutions such as marriage? Or is it simply a clash of bald assertions — some say it’s about procreation, others say it’s about loving commitment — and there’s no way of showing one to be more plausible than the other?
Marshall’s opinion offers a good illustration of how such arguments can proceed. First, she disputes the claim that procreation is the primary purpose of marriage. She does so by showing that marriage, as currently practiced and regulated by the state, does not require the ability to procreate. Heterosexual couples who apply for marriage licenses are not asked about “their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce, People who have never consummated their marriage, and never plan to, may be and stay married. People who cannot stir from their deathbed may marry.” While “many, perhaps most married couples have children together (assisted or unassisted) ,“ Marshall concludes, “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.”
So part of Marshall’s argument consists of an interpretation of the purpose or essence of marriage as it currently exists. Faced with rival interpretations of a social practice — marriage-as-procreation versus marriage-as-exclusive-and-permanent-commitment — how can we determine which is more plausible? One way is to ask which account makes better sense of existing marriage laws, taken as a whole. Another is to ask which interpretation of marriage celebrates virtues worth honoring. What counts as the purpose of marriage partly depends on what qualities we think marriage should celebrate and affirm. This makes the underlying moral and religious controversy unavoidable: What is the moral status of gay and lesbian relationships?
Marshall is not neutral on this question. She argues that same-sex relationships are as worthy of respect as heterosexual relationships. Restricting marriage to heterosexuals “confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.”
So when we look closely at the case for same-sex marriage, we find that it cannot rest on the ideas of non-discrimination and freedom of choice. In order to decide who should qualify for marriage, we have to think through the purpose of marriage and the virtues it honors. And this carries us onto contested moral terrain, where we can’t remain neutral toward competing conceptions of the good life.
I have one more post from Michael Sandal but I think what this one does is show you that the tired defense of marriage as between one man and one woman because marriage is for procreation is just that, tired. Far better to reflect upon the virtue of homosexuality and to discuss that with same-sex marriage advocates. Look at these two reflections on the case for homosexuality as a normative behavior:
- http://payingattentiontothesky.com/causes-of-homosexuality-a-christian-appraisal-of-the-data/
- http://payingattentiontothesky.com/causes-of-homosexuality-a-christian-appraisal-of-the-data/gay-adoption-issues/
The Church refuses to believe that can a condition be “normal” or “natural” when statistics show it leads to early death; sexual addiction and promiscuity; inability to procreate normally; numerous health problems including STDs, cancer, hepatitis, HIV/AIDS and other life-threatening diseases; drug and alcohol abuse; and a high risk of depression and suicide.
According to the Catholic Medical Association: Well-designed research studies have shown several psychiatric disorders to be far more prevalent in teenagers and adults with same-sex attraction. These include major depression, suicidal ideation and attempts, anxiety disorders, substance abuse, conduct disorder, low self-esteem in males and sexual promiscuity with the inability to maintain committed relationships. It is important to note that “homophobia” is not the cause of these disorders as most of these studies were done in cultures in which homosexuality is widely accepted.
This report also notes that 39 percent of males with same-sex attraction have been abused by other males with same-sex attraction. The Family Research Council has also published a report, Getting it Straight: What the Research Shows About Homosexuality , that has a chapter on the health risks involved for those with homosexual lifestyles, including reports from the Center for Disease Control, the Journal of the American Medical Association, the John Hopkins University School of Public Health and others. “The significantly elevated health problems experienced by homosexuals [are] most often the direct consequence of engaging in specific sexual acts and behavior patterns … that are common among homosexuals.”
These papers directly contradict the Marshall opinion argued above. “The destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.” turns out to be a stereotype without a firm basis in fact.
If you would like to explore more, this is a challenging view of the neutrality topic that Dr. Sandal introduces to his ideas on justice:
