Lecture 24: The Good Life

THE GOOD LIFE
Sandel believes government can’t be neutral on difficult moral questions, such as same-sex marriage and abortion, and asks why we shouldn’t deliberate all issues—including economic and civic concerns—with that same moral and spiritual aspiration.  In his final lecture, Professor Michael Sandel eloquently makes the case for a new politics of the common good.  Engaging, rather than avoiding, the moral convictions of our fellow citizens may be the best way of seeking a just society.

Ethical Dilemma: Debating Same Sex Marriage

What should be the legal status of gay marriage?

Readings and Discussion Guides

A brief overview of the case: In a landmark ruling on November 18, 2003, the Massachusetts Supreme Judicial Court ruled that the state may not deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same-sex who wish to marry. Is it possible to decide whether the state should recognize same-sex marriage without taking sides in the moral and religious controversy over the purpose of marriage and the moral status of homosexuality? Did the court succeed in being neutral?


Goodridge v. Department of Public Health (2003)
440 Mass. 309

MARSHALL, C.J. Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.

We are mindful that our decision marks a change in the history of our marriage law. Many people hold deep-seated religious, moral, and ethical convictions 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 concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Lawrence v. Texas, 123 S. Ct. 2472, 2480 (2003) (Lawrence), quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992). …

Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law. …

The plaintiffs’ claim that the marriage restriction violates the Massachusetts Constitution can be analyzed in two ways. Does it offend the Constitution’s guarantees of equality before the law? Or do the liberty and due process provisions of the Massachusetts Constitution secure the plaintiffs’ right to marry their chosen partner? …

We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. … In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State. See DeMatteo v. DeMatteo, 436 Mass. 18 , 31 (2002) (“Marriage is not a mere contract between two parties but a legal status from which certain rights and obligations arise”); Smith v. Smith, 171 Mass. 404 , 409 (1898) (on marriage, the parties “assume[] new relations to each other and to the State”). See also French v. McAnarney, 290 Mass. 544 , 546 (1935). While only the parties can mutually assent to marriage, the terms of the marriage – who may marry and what obligations, benefits, and liabilities attach to civil marriage – are set by the Commonwealth. Conversely, while only the parties can agree to end the marriage (absent the death of one of them or a marriage void ab initio), the Commonwealth defines the exit terms. See G. L. c. 208.

Civil marriage is created and regulated through exercise of the police power. See Commonwealth v. Stowell, 389 Mass. 171 , 175 (1983) (regulation of marriage is properly within the scope of the police power). “Police power” (now more commonly termed the State’s regulatory authority) is an old fashioned term for the Commonwealth’s lawmaking authority, as bounded by the liberty and equality guarantees of the Massachusetts

Constitution and its express delegation of power from the people to their government. In broad terms, it is the Legislature’s power to enact rules to regulate conduct, to the extent that such laws are “necessary to secure the health, safety, good order, comfort, or general welfare of the community” (citations omitted). Opinion of the Justices, 341 Mass. 760 , 785 (1960). [Note 12] See Commonwealth v. Alger, 7 Cush. 53 , 85 (1851).

Without question, civil marriage enhances the “welfare of the community.” It is a “social institution of the highest importance.” French v. McAnarney, supra. Civil marriage anchors an ordered society by encouraging stable relationships over transient ones. It is central to the way the Commonwealth identifies individuals, provides for the orderly distribution of property, ensures that children and adults are cared for and supported whenever possible from private rather than public funds, and tracks important epidemiological and demographic data.

Marriage also bestows enormous private and social advantages on those who choose to marry. 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. “It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition. …

For decades, indeed centuries, in much of this country (including Massachusetts) no lawful marriage was possible between white and black Americans. That long history availed not when the Supreme Court of California held in 1948 that a legislative prohibition against interracial marriage violated the due process and equality guarantees of the Fourteenth Amendment, Perez v. Sharp, 32 Cal. 2d 711, 728 (1948), or when, nineteen years later, the United States Supreme Court also held that a statutory bar to interracial marriage violated the Fourteenth Amendment, Loving v. Virginia, 388 U.S. 1 (1967). [Note 16] As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare. See Perez v. Sharp, supra at 717 (“the essence of the right to marry is freedom to join in marriage with the person of one’s choice”). See also Loving v. Virginia, supra at 12. In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance – the institution of marriage – because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination. [Note 17] …

The individual liberty and equality safeguards of the Massachusetts Constitution protect both “freedom from” unwarranted government intrusion into protected spheres of life and “freedom to” partake in benefits created by the State for the common good. See Bachrach v. Secretary of the Commonwealth, 382 Mass. 268 , 273 (1981); Dalli v. Board of Educ., 358 Mass. 753 , 759 (1971). Both freedoms are involved here. Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family – these are among the most basic of every individual’s liberty and due process rights. See, e.g., Lawrence, supra at 2481; Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992); Zablocki v. Redhail, 434 U.S. 374, 384 (1978); Roe v. Wade, 410 U.S. 113, 152-153 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Loving v. Virginia, supra. And central to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations. “Absolute equality before the law is a fundamental principle of our own Constitution.” Opinion of the Justices, 211 Mass. 618 , 619 (1912). The liberty interest in choosing whether and whom to marry would be hollow if the Commonwealth could, without sufficient justification, foreclose an individual from freely choosing the person with whom to share an exclusive commitment in the unique institution of civil marriage. ….

The department posits three legislative rationales for prohibiting same-sex couples from marrying: (1) providing a “favorable setting for procreation”; (2) ensuring the optimal setting for child rearing, which the department defines as “a two-parent family with one parent of each sex”; and (3) preserving scarce State and private financial resources. We consider each in, turn.

The judge in the Superior Court endorsed the first rationale, holding that “the state’s interest in regulating marriage is based on the traditional concept that marriage’s primary purpose is procreation.” This is incorrect. Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to 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. See Franklin v. Franklin, 154 Mass. 515 , 516 (1891) (“The consummation of a marriage by coition is not necessary to its validity”). [Note 22] People who cannot stir from their deathbed may marry. See G. L. c. 207, s. 28A. While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), 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. [Note 23]

Moreover, the Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried, whether the child is adopted or born into a family, whether assistive technology was used to conceive the child, and whether the parent or her partner is heterosexual, homosexual, or bisexual. [Note 24] If procreation were a necessary component of civil marriage, our statutes would draw a tighter circle around the permissible bounds of nonmarital child bearing and the creation of families by noncoital means. The attempt to isolate procreation as “the source of a fundamental right to marry,” post at 370 (Cordy, J., dissenting), overlooks the integrated way in which courts have examined the complex and overlapping realms of personal autonomy, marriage, family life, and child rearing. Our jurisprudence recognizes that, in these nuanced and fundamentally private areas of life, such a narrow focus is inappropriate.

The “marriage is procreation” argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage. Like “Amendment 2″ to the Constitution of Colorado, which effectively denied homosexual persons equality under the law and full access to the political process, the marriage restriction impermissibly “identifies persons by a single trait and then denies them protection across the board.” Romer v. Evans, 517 U.S. 620, 633 (1996). In so doing, the State’s action 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. [Note 25]

The department’s first stated rationale, equating marriage with unassisted heterosexual procreation, shades imperceptibly into its second: that confining marriage to opposite-sex couples ensures that children are raised in the “optimal” setting. Protecting the welfare of children is a paramount State policy. Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy. … Moreover, the department readily concedes that people in same-sex couples may be “excellent” parents. These couples (including four of the plaintiff couples) have children for the reasons others do – to love them, to care for them, to nurture them. But the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws. …

No one disputes that the plaintiff couples are families, that many are parents, and that the children they are raising, like all children, need and should have the fullest opportunity to grow up in a secure, protected family unit. Similarly, no one disputes that, under the rubric of marriage, the State provides a cornucopia of substantial benefits to married parents and their children. The preferential treatment of civil marriage reflects the Legislature’s conclusion that marriage “is the foremost setting for the education and socialization of children” precisely because it “encourages parents to remain committed to each other and to their children as they grow.” Post at 383 (Cordy, J., dissenting).

In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation. …

The department suggests additional rationales for prohibiting same-sex couples from marrying, which are developed by some amici. It argues that broadening civil marriage to include same-sex couples will trivialize or destroy the institution of marriage as it has historically been fashioned. Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries. But it does not disturb the fundamental value of marriage in our society.

Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. [Note 28] If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit. [Note 29] …

The department has had more than ample opportunity to articulate a constitutionally adequate justification for limiting civil marriage to opposite-sex unions. It has failed to do so. The department has offered purported justifications for the civil marriage restriction that are starkly at odds with the comprehensive network of vigorous, gender-neutral laws promoting stable families and the best interests of children. It has failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex.

The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. [Note 33] “The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (construing Fourteenth Amendment). Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution. …

Modern liberalism maintains that law should try to be neutral on controversial moral and religious questions. According to this view, the law should not affirm or promote any particular conception of the best way to live, but let citizens choose for themselves how best to live their lives.

But is it possible to settle questions of justice and rights without addressing other controversial questions about morality and the common good?

  1. In 1977, the American Nazi Party tried to stage a demonstration in Skokie, Illinois, home to many Holocaust survivors. When the city refused permission, the Nazi party sued in court. Should the city of Skokie have been allowed to forbid public hate speech? Is it possible to answer this question without passing judgment on the value of the speech in question?
  2. Some people believe that a human person comes into being at conception and that, therefore, abortion is murder. Others argue that abortion should be legal because a woman should have the right to make medical decisions concerning her own body. What is your view? Should abortion be legal? Under what circumstances? Can we settle whether abortion should be legal without settling whether abortion is murder?
  3. Some people believe that homosexuality is immoral and that, therefore, same-sex marriages should not be permitted. Other people argue that same-sex marriage should be permitted because everyone has the right to be treated as an equal. What is your view? Should same-sex marriage be legal? Is it possible to answer this question without making a judgment about the value of homosexual relationships?
  4. Some people believe that the purpose of marriage is procreation and that, therefore, same-sex marriages should not be permitted. Other people believe same-sex marriage should be permitted because the purpose of marriage is to honor and promote loving relationships between committed adults, regardless of their sex. Is it possible to defend a position on same-sex marriage without making a judgment about the purpose and value of marriage?
  5. In 1858, Abraham Lincoln went head to head with Stephen Douglas in a series of debates about slavery. Douglas argued that the federal government should not take a stand on the controversial question of slavery. Instead, the federal government should bracket the question for the sake of civil peace and leave it up to the US states and territories to decide. For his part, Lincoln thought that the moral question raised by slavery could not be avoided. The federal government would be taking a stand, one way or the other.
  6. Do you agree with Lincoln? Whenever there is a law that either permits or forbids a controversial practice, is the government thereby taking a stand on the morality of the practice? Does this mean that, in its law-making, the government should pay close attention to morality and the common good?

Modern liberalism maintains that law should try to be neutral on controversial moral and religious questions. According to this view, the law should not affirm or promote any particular conception of the best way to live, but let citizens choose for themselves how best to live their lives.

But is it possible to settle questions of justice and rights without addressing other controversial questions about morality and the common good?

The Right to Free Speech
Consider the example of the right to free speech. The city of Skokie, Illinois has been home to many Holocaust survivors. In 1977, the American Nazi Party tried to stage a demonstration there. When the city refused permission, the Nazi party sued the city in court. Should the city of Skokie have been allowed to forbid public hate speech? Is it possible to answer this question without passing judgment on the value of the speech in question? As you think about these questions, consider some of the arguments that have been made in favor of free speech.

  1. Some people think that there is no moral truth, and therefore that it makes no sense to suppress a view because it’s morally wrong. Do you agree with this position? Is it a sound defense of the right to free speech?
  2. Other people believe that there is moral truth, but that we have access to it only by allowing free speech. All sides must be allowed to speak for the truth to come to light. Do you agree with this position? Does it lead you to think that the city of Skokie acted wrongly in refusing to allow Nazis to stage a demonstration?
  3. Other people believe that some speech is useless, or even psychologically harmful, but that it would be much worse if we started banning certain kinds of speech. Soon, even true but unpopular beliefs would be suppressed. Do you agree with this position? Does it lead you to think that the city of Skokie acted wrongly in refusing to allow Nazis to stage a demonstration?
  4. Some believe that citizens in a democracy should have a right to express themselves regardless of the content of their speech. The laws that protect free speech should not favor one set of values; they should be neutral across competing conceptions of the good. Do you agree with this position?
  5. After considering these arguments, do you think that the city of Skokie should have been allowed to forbid the Nazis from marching? Does your judgment depend upon what you think of hate speech in particular?

Abortion
Consider another contemporary controversy. Some people believe that a human person comes into being at conception and that, therefore, abortion is murder. Others argue that certain kinds of abortion should be legal because a woman should have the right to make medical decisions concerning her own body. What is your view?

  1. Should abortion be legal? Under what circumstances?
  2. Is it possible to defend a position on abortion without settling whether abortion is murder?
  3. Is it possible to defend a position on abortion without making judgment about the value of women’s control over their own bodies?

Same-Sex Marriage
Consider same-sex marriage. Some people believe that homosexuality is immoral and that, therefore, same-sex marriages should not be permitted. Other people argue that same-sex marriage should be permitted because everyone has the right to be treated like an equal. What is your view?

  1. Should same-sex marriage be legal?
  2. Is it possible to defend a position on same-sex marriage without making a judgment about the value of homosexual relationship?
  3. Some people believe that the purpose of marriage is procreation, while others believe that the purpose of marriage is to honor and promote loving relationships between committed adults, regardless of their sex. What is your view? Is it possible to defend a position on same-sex marriage without making a judgment about the purpose and value of marriage?
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