Brief of Amicus Curiae Matthew B. O’Brien in Support of Hollingsworth and Bipartisan Legal Advisory Group of the U.S. House of Representatives Addressing the Merits and Supporting Reversal

35 Pages Posted: 6 Feb 2013

See all articles by Matthew B. O'Brien

Matthew B. O'Brien

Villanova University - Matthew J. Ryan Center, Department of Political Science; Unaffiliated Authors

Date Written: January 29, 2013


Within the broad tradition of “liberal” political thought and constitutional scholarship, there is agreement that moral disapproval as such is an illegitimate ground for limiting liberty. When the law implicates questions about momentous issues in human life — marriage, sexuality, conscience, religion, death, and so on — these scholars argue that the law must prescind from imposing any givencontroversial moral judgment upon a citizenry marked by ethical pluralism.

In other words, they argue that the law ought not to criminalize conduct based solely on judgments about what makes for or detracts from a valuable and morally worthy way of life. Rather, the law should aspire to neutrality between competing visions of how best to live. The ideal of moral neutrality does not purport to expunge the law of its moral content, for this ideal is itself a moral injunction: it is fairness — a moral concept — that requires no one, particular moral vision be privileged by the state. Laws that merely aim to promote controversial judgments about morality, especially when they limit freedom, fail to manifest a legitimate state interest.

Some courts have held that the law ought to pass a moral neutrality test based on Lawrence v. Texas, 539 U.S. 558 (2003) (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)) (“[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”). The lower courts here applied this test as an implicit part of their rational basis standard of constitutional review.

Contrary to the decisions of the lower courts, however, the definition of marriage in California’s Proposition 8 does pass the moral neutrality test just described. This conjugal definition of marriage as between one man and one woman passes the neutrality test, and satisfies the emerging constitutional standard of rational basis review.

Conjugal marriage uniquely contributes to the state’s legitimate interest in ensuring the orderly reproduction of society over time. Conjugal marriage is a unique form of human association because it is intrinsically generative, which makes it distinctively suited to serving the necessary task of orderly social reproduction. A union of two (or more) individuals of the same sex — whether the union consists of gay people who are in a romantic relationship, or siblings united by kinship, or friends animated by platonic admiration, etc. — cannot constitute an intrinsically generative union. Whether a female partner involved in such a union bears a child, or whether such a union happens to become a locus of child rearing, for example, are both incidental matters.

Marriage as a conjugal union, by contrast, is intrinsically generative, given its nature as a social- cum-biological identity. To put the point summarily: sex between men and women tends to make babies, and babies need moms and dads. Therefore, in seeking to promote orderly reproduction, the state may reasonably decide to single out and promote the distinctively conjugal partnership that has historically borne the label “marriage.” This decision need not stem from any moral judgments about the superiority or inferiority of any one of these various forms of association in relation to the others. Nor does it require the criminalization of non-conjugal sexual relationships, whether same-sex, multi- partner, or anything else.

Previous discussions of conjugal marriage have typically failed to specify properly the legitimate state interest in ensuring orderly reproduction. This failure has inhibited both sides of the marriage debate from appreciating that laws such as Proposition 8 have a constitutional justification entirely independent from the fact that conjugal marriage happens to be the traditional definition of marriage.

In order to specify the state interest in orderly reproduction properly, one must consider the ideal of moral neutrality more thoroughly. The late Harvard philosopher John Rawls is universally regarded as the most important and influential proponent of moral neutrality — or to use his terms, the ideal of “public reason.” Rawls’s work is in large part responsible for the widespread recognition of moral neutrality as a constitutional principle. Courts in the United States and abroad have cited his work; his influence is palpable in Lawrence and in the decisions of the District and Circuit Courts here.

Rawls’s account of “public reason” and his defense of the legitimate state interest in orderly reproduction, when rightly understood, provide a powerful justification for supporting the definition of marriage as a conjugal union. While the lower courts embraced a moral neutrality test akin to Rawls’s idea of “public reason,” they misapplied it. Rawls’s doctrine accepts the notion that laws have an inherently moral component, but it requires that such laws find support among public values and standards that all citizens could reasonably accept. As explained in this brief and others filed in support of Petitioners, the state has a legitimate interest in orderly reproduction and that interest requires the state to ensure a sustainable birth rate and the effective rearing of children into responsible citizens. These interests find general acceptance as public values. They also form the basis for the state’s definition of marriage as a conjugal union between a man and woman. Thus, these interests withstand constitutional scrutiny under the rational basis standard and this Court should reverse the lower court decisions.

Keywords: John Rawls, liberal neutrality, rational basis review, Lawrence v. Texas, political liberalism, marriage, gay marriage, same-sex marriage, traditional marriage, Proposition 8, DOMA

Suggested Citation

O'Brien, Matthew B. and O'Brien, Matthew B., Brief of Amicus Curiae Matthew B. O’Brien in Support of Hollingsworth and Bipartisan Legal Advisory Group of the U.S. House of Representatives Addressing the Merits and Supporting Reversal (January 29, 2013). Available at SSRN: or

Matthew B. O'Brien (Contact Author)

Unaffiliated Authors ( email )

United States

Villanova University - Matthew J. Ryan Center, Department of Political Science ( email )

800 Lancaster Avenue
304 Old Falvey Hall
Villanova, PA 19085
United States


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