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Debating Democracy's DiscontentEssays on American Politics, Law, and Public Philosophy$
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Anita L. Allen and Milton C. Regan

Print publication date: 1998

Print ISBN-13: 9780198294962

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/0198294964.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 17 October 2019

Gay Marriage and Liberal Constitutionalism: Two Mistakes

Gay Marriage and Liberal Constitutionalism: Two Mistakes

(p.260) 20 Gay Marriage and Liberal Constitutionalism: Two Mistakes
Debating Democracy's Discontent

Robin West

Oxford University Press

This argument for gay marriage based on its seamless sameness with straight marriage and the “equality” and equal treatment that sameness demands, deprives us of the opportunity to not only argue for gay marriage “on the moral merits,” so to speak, but to make such an argument which stresses, rather than pointedly denies, the morally salutary differences between what gay marriage might be and what straight marriage here and now is. We might want to consider the possibility that the nonreproductive sex act, tamed, disciplined, and sanctified by a legal, religious, and socially recognized same-sex marriage, between two individuals committed to the care of each other and no less committed than their heterosexual counterparts to the possibility of raising children, presents a physical model of caring for the other that, precisely because it does not embed the giving of physical care in genetic replication, is less constrained by egoism. Sandel is right that liberalism misses the moral point of family life, but Mary Shanley is right that Sandel should be faulted for not seeing that communitarianism (his proffered alternative) misses the profound damage that a particular community can wreak on the lives of its members. Will Kymlicka asks whether liberalism can be charged with any aspect of our apparent inability to transcend the paralyzing grip of the mythology of social Darwinism; it can: the logic of liberalism–even in its left wing variant–drives us away from a direct and meaningful attack on the moral merits, so to speak, of this myth as myth. To dislodge the myth of the “self-made man,” we have to not only expose it as myth, but we also have to challenge it in kind; we have to replace it with a better one.

Keywords:   Darwinism, differences, egoism, Will Kymlicka, mythology, nonreproductive, sameness, self-made, Mary Shanley

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