Symposium on Whether Legalization of Same-Sex Marriage is Constitutionally Required - 2012


John Locke understood human happiness to amount to the removal of "uneasiness." This paper argues that,to the extent that the United States is a nation dedicated to "the pursuit of happiness" understood as the removal of "uneasiness," same-sex unions or marriages should be given legal recognition. While Locke defended a variation on traditional marriage on the grounds of progenitiveness and care for dependent offspring, his more foundational commitment to the importance of the removal of uneasiness precludes, on pain of inconsistency, limiting marriage to opposite-sex couples. This paper argues, furthermore, that conservatives and neo-conservatives who celebrate this nation's being "the first creedal nation" in history are, when they come to oppose same-sex marriage, hoist of their own creedal petard; "the pursuit of happiness" leads, for some people, to same-sex union. Locke followed his own logic to a defense of polygamy, and the same logic leads to same-sex unions. The paper concludes that truly principled opposition to same-sex marriage requires the embrace of politics rooted in man's summum bonum, the very project modernity has been out to eradicate. The Catholic Church would be a help to the state in leading man to achieve his summum bonum, but Locke's tolerance does not extend to the liberty of the Church (libertas Ecclesiae), nor, not accidentally, does the U.S. Constitution recognize the liberty of the Church per se.

This paper originated as an invited contribution to a symposium on "Whether Legal Recognition of Same-Sex Marriage is Constitutionally Required," held at BYU's J. Reuben Clark School of Law in November, 2012. The Lockean logic of Justice Kennedy's majority opinion in United States v. Windsor is unmistakable (if unnamed), even if the Court stopped slightly short of taking that logic for all that it is worth. Given Justice Kennedy's Lockean principles, there is no principled basis for not announcing a constitutional right to same-sex marriage, as Justice Scalia recognized in dissent.


Comparative and Foreign Law | Constitutional Law | Courts | Family Law | Law | Religion Law | Sexuality and the Law

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