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Respecting Freedom and Cultivating Virtues in Justifying Constitutional Rights


Linda C. McClain


Boston University - School of Law

James E. Fleming


Boston University - School of Law

October 6, 2011

Boston University Law Review, Vol. 91, p. 1311, 2011
Boston Univ. School of Law, Public Law Research Paper No. 11-48

Abstract:     
What’s new in the long-standing debate between civic republicans and liberals about how best to understand and justify rights? This article picks up the thread with political philosopher Michael Sandel’s recent, internationally-renowned book, Justice: What’s the Right Thing To Do? The article evaluates the sharp contrasts his book draws between justice as cultivating virtues and justice as respecting freedom, using his example of contemporary arguments for and against opening up civil marriage to same-sex couples. Sandel contends that “liberal neutrality” and a public square denuded of religious arguments and convictions are impossible on this issue. Drawing on Aristotle, he contends that it is necessary to engage in substantive moral argument about marriage as a social institution, the virtues it honors and rewards, and whether gay and lesbian unions are worthy of the honor and recognition that, in our society, state-sanctioned marriage confers. Arguments rooted in freedom to choose one’s marital partner or in the right to equal access to marriage will not suffice. In this article, we offer a close reading of the Massachusetts marriage opinion, Goodridge v. Department of Public Health (2003), and the California marriage opinion, In re Marriage Cases (2008), to support our argument that Sandel draws too stark a dichotomy between virtue-based and freedom-based arguments about justice (and, in turn, between civic republicanism and liberalism), and that both strands feature in these opinions. Arguments about why marriage matters as a social institution fruitfully complement arguments about why marriage matters from an individual rights perspective, although the latter properly constrain certain appeals to religious arguments about civil marriage. We conclude with a brief consideration of how these arguments play out in the recent federal district court opinion, Perry v. Schwarzenegger, which held Proposition 8 (amending the California constitution to bar same-sex marriage) unconstitutional.

Number of Pages in PDF File: 29

Keywords: Ronald Dworkin, Michael Sandel, justice, rights, marriage, virtue, moral reasoning, Aristotle, liberalism, civic republicanism, toleration, public reason, homosexuality

JEL Classification: K19, K39, K49

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Date posted: October 7, 2011  

Suggested Citation

McClain, Linda C. and Fleming, James E., Respecting Freedom and Cultivating Virtues in Justifying Constitutional Rights (October 6, 2011). Boston University Law Review, Vol. 91, p. 1311, 2011; Boston Univ. School of Law, Public Law Research Paper No. 11-48. Available at SSRN: http://ssrn.com/abstract=1939978

Contact Information

Linda C. McClain (Contact Author)
Boston University - School of Law ( email )
765 Commonwealth Avenue
Boston, MA 02215
United States
James E. Fleming
Boston University - School of Law ( email )
765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-2942 (Phone)
617-353-3077 (Fax)
HOME PAGE: http://www.bu.edu/law/faculty/profiles/bios/full-time/fleming_j.html
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