Boston University School of Law

 

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)

91 Boston University Law Review 1311 (2011)
Boston University School of Law Public Law & Legala Theory 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.

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

 

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Suggested Citation:

Linda C. McClain & James E. Fleming, "Respecting Freedom and Cultivating Virtues in Justifying Constitutional Rights," 91 Boston University Law Review 1311 (2011); B.U. Law Public Law & Legal Theory Paper No. 11-48 (October 6, 2011).

Linda C. McClain Contact Information

Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215

lmcclain@bu.edu

Phone: (617) 358-4635

Fax: (617) 353-3077

James E. Fleming Contact Information

Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215

Phone: (617) 353-2942

Fax: (617) 353-3077

jfleming@bu.edu

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