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Deliberative Democracy, Overlapping Consensus, and Same-Sex Marriage View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Fordham University School of Law Fordham Law Review Volume 66 Issue 4 Article 18 1998 Deliberative Democracy, Overlapping Consensus, and Same-Sex Marriage Linda C. McClain Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Linda C. McClain, Deliberative Democracy, Overlapping Consensus, and Same-Sex Marriage, 66 Fordham L. Rev. 1241 (1998). Available at: https://ir.lawnet.fordham.edu/flr/vol66/iss4/18 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Deliberative Democracy, Overlapping Consensus, and Same-Sex Marriage Cover Page Footnote Professor of Law, Hofstra University School of Law. I presented an earlier version of this essay at "The Relevance of Religion to a Lawyer's Work: An Interfaith Conference," held at Fordham University School of Law, June 1-3, 1997. Thanks to Jim Fleming for helpful comments, and to Hofstra law student Bella Blat and law librarian Connie Lenz for valuable research assistance This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol66/iss4/18 DELIBERATIVE DEMOCRACY, OVERLAPPING CONSENSUS, AND SAME- SEX Linda C. McClain* I. DELIBERATIVE DEMOCRACY AND THE SEARCH FOR A LIMITING PRINCIPLE OF PUBLIC JUSTIFICATION A pressing concern in political and constitutional theory is how to construct a model of justification in law and politics that offers methods for securing agreement and social cooperation in the face of moral pluralism. A common goal of this work is to elaborate the re- quirements of deliberative democracy, that is, a model of democratic self-government that "asks citizens and officials to justify public policy by giving reasons that can be accepted by those who are bound by it."' Two fundamental questions are: (1) are there any limits to the grounds to which citizens may appeal or the reasons that they may proffer to support their positions?; and (2) if so, what are they? One familiar answer to these questions is found in John Rawls's account of political liberalism, which holds that where questions of constitutional essentials (such as basic liberties) and matters of basic justice are at stake, citizens and governmental officials should abide by an idea of public reason and satisfy the criterion of "reciprocity." Public reason requires that citizens not simply appeal to their compre- hensive moral doctrines, or seek the "whole truth" in politics, but ulti- mately appeal to political values or public reasons. They should give reasons that other citizens can understand and that they might reason- ably expect those citizens reasonably to accept. 2 Such work draws the criticism that it unduly constrains the appeal to substantive moral ar- gument and bars a perfectionist goal of "settling law and public policy in accordance with what is true as a matter of justice, human rights, * Professor of Law, Hofstra University School of Law. I presented an earlier version of this essay at "The Relevance of Religion to a Lawyer's Work: An Inter- faith Conference," held at Fordham University School of Law, June 1-3, 1997. Thanks to Jim Fleming for helpful comments, and to Hofstra law student Bella Blat and law librarian Connie Lenz for valuable research assistance. 1. Amy Gutmann & Dennis Thompson, Democracy and Disagreement 52 (1996). 2. See John Rawls, Political Liberalism (1996); John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) [hereinafter Rawls, Public Reason]. Rawls defines "comprehensive moral doctrine" as a moral conception that "includes conceptions of what is of value in human life, and ideals of personal character, as well as ideals of friendship and of familial and associational relationships, and much else that is to inform our conduct .. " Rawls, Political Liberalism, supra, at 13. Other leading work on deliberative democracy shares Rawls's premise that citizens should not seek to impose or establish their comprehensive moral doctrines in politics, but should abide by an idea of public reason and a duty of reciprocity. See Gutmann & Thompson, supra note 1, at 46-49. 1241 1242 FORDHAM LAW REVIEW [Vol. 66 and political morality generally."3 Moreover, it is said to lead to dis- content with democracy because it asks citizens to put aside their deeply 4held beliefs and moral judgments when they enter into politics. It is helpful to situate Professor Edward B. Foley's ambitious and thought-provoking article, Jurisprudence and Theology,5 within the framework of this debate over deliberative democracy. He too at- tempts to put forth an appropriate limiting principle for justification, pursuant to a principle of reciprocity. He finds that principle in a dis- tinction between the secular and the theological. Contending that it is possible, appropriate, and fair to have an "entirely secular legal sys- tem," he makes two basic claims. First, he argues that a constitutional and legal system can have a commitment to a set of "transcendent human rights" (that is, rights that exist without regard to their enact- ment by a legislature in a text, and that supersede any contrary legisla- tive enactments) without taking a position in the theological debate over the existence of God.6 Instead of resolving the question of whether such rights rest upon a natural law foundation or are the product of human reason through a social contract, both theists and atheists could accept the use of a principle of reciprocity to govern the identification of transcendental human rights. This principle of reci- procity seeks to secure assent on fair terms of social cooperation, whereby persons imagine themselves in each other's position, having to abide by whatever terms were mutually agreeable. Second, Foley contends that it is possible to use such a principle of reciprocity to develop a method of reasoning about transcendental human rights that does not reflect a commitment to either the natural law or social contract view about the origin of such rights. In written opinions, judges need not and should not rely upon theological argu- ment, which Foley defines as "any belief about the ultimate status and character of moral propositions."7 The problem with theological pro- positions is that "theology is different from other matters"-such pro- positions are "inherently unconvincing to someone who is not already a theist."' For the same reason, legislators should not draft their en- actments in "explicitly theological terms" and legislation should never "make reference to theological beliefs."9 3. Robert P. George, Public Reason and Political Conflict: Abortion and Homo- sexuality, 106 Yale L.J. 2475, 2504 (1997). 4. See generally Michael J. Sandel, Democracy's Discontent: America In Search of a Public Philosophy (1996) (attributing the "procedural republic" characteristic of America's public philosophy to, inter alia, Rawls's political liberalism). 5. See Edward B. Foley, Jurisprudenceand Theology, 66 Fordham L. Rev. 1195 (1998). Foley draws upon Gutmann & Thompson, supra note 1; Rawls, Political Lib- eralism, supra note 2; and Rawls, Public Reason, supra note 2. 6. Foley, supra note 5, at 1197. 7. Id. at 1207. 8. Id. at 1204. 9. Id. at 1209-10. 19981 POLITICAL THEORY 1243 But Foley allows at least one point of entry for theological beliefs into his otherwise "entirely secular" legal system. When a transcen- dental legal system confronts a problem that cannot be resolved by recourse to the principle of reciprocity alone, it is permissible for judges, lawyers, and (presumably) legislators, in attempting to justify a proposition of law or an outcome, to invoke the existence of an over- lapping consensus, or agreement upon a proposition of law or a legis- lative enactment arrived at from a variety of theological perspectives. 10 When it is uncertain how reciprocity applies in a par- ticular case, that is, "when secular (that is, public) reasoning can go no further to justify a decision the law must make," judges (and presuma- bly legislators) may appeal to an overlapping consensus of theological positions for one outcome rather than another, even though there may also be an overlapping consensus for the other outcome. 1 In this essay, I use the current debate over whether same-sex mar- riage should be permissible as a practical test case for Foley's strategy for achieving a secular legal system. This debate is a helpful test case because some scholars and many citizens and public officials believe that the issue of the permissibility of same-sex marriage cannot be resolved without recourse to what Foley calls theological arguments or beliefs, and appeals to theological beliefs feature prominently in the opposition to legal recognition of such marriages."2 I suggest that his ban on theological arguments may be unduly restrictive and unrealis- tic, as a comparison with Rawls's idea of public reason will suggest. At the same time, ironically, Foley's stricture upon theology may prove to be insufficiently restrictive because of his allowance of the appeal to an overlapping consensus of theological beliefs-what I will call the "strength in numbers" exception to his general proscription against theological argument. This creates unresolved tension over what his model requires in cases of apparent conflict between the de- mands of transcendental human rights and the existence of an appar- ent overlapping consensus to restrict or deny such rights. In such cases, what, ultimately, does his model require of citizens and legisla- tors engaged in deliberation over questions of basic liberties or rights?' 3 I conclude that Foley should incorporate, into his appeal to an overlapping consensus, a requirement of the evaluation of argu- ments for the legitimacy of state interests in limiting basic liberties or rights by reference to political values and public reasons.
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