Rule of Law, Socially Constructed Reasons, and Marriage Equality
5 Journal of Law, Religion & State (2017), Forthcoming
44 Pages Posted: 14 Feb 2017 Last revised: 10 Nov 2017
Date Written: February 15, 2017
Most constitutional scholars are familiar with Justice Bradley’s notoriously sexist justification for excluding women from practicing law in Bradwell v. Illinois (1873). No judge could write such an opinion today. Unlike the 19th-century U.S., contemporary Western societies acknowledge the equality of men and women, and thus cannot coherently exclude women from the professions because of purportedly “natural” inabilities. What seemed obviously reasonable in 1873 is patently unreasonable today.
The shift from gender exclusion in the 19th century to gender equality in the 21st illustrates the socially constructed nature of legal reasons. A reason “constructed” if it does not appeal to necessary and natural normative authorities, but is instead created and shaped by contingent social and historical forces. The idea that the “reasons” of legal reasoning change as society changes is neither new nor especially radical, though legal thinkers often miss its importance. For example, the idea of socially constructed reasons exists uneasily with the Rule of Law. A bedrock Rule-of-Law principle requires that government action be nonarbitrary or reasoned, “reason unaffected by desire,” in the Aristotelian formulation. The Rule-of-Law principle of reasoned or nonarbitrary judgment found its way into Federalist 78 and binds government today through the Due Process Clauses of the 5th and 14th Amendments. And yet, if the reasons invoked to justify judicial decisions are part of variable historical, social, and linguistic contexts in which the judges themselves are embedded, how can judicial decisions uphold the Rule-of-Law requirement of reasoned decision making untainted by preference and desires?
This essay gives a philosophical account of the social construction of legal reasons, relying on Kant, Heidegger, and Gadamer as the decisive figures. It applies this account to current U.S. controversies over same-sex marriage, and suggests how constructed reasons can co-exist with still-powerful Rule-of-Law myths.
Keywords: Aristotle, dignitary harm, Gadamer, Heidegger, Kant, reason, religious accommodation, same-sex marriage, social construction, third-party harm
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