An Argument for Same-Sex Marriage by Gill Emily R

Author:Gill, Emily R.
Language: eng
Format: epub, mobi
Publisher: Georgetown University Press
Published: 2012-07-27T16:00:00+00:00

Government Speech

In Lee v. Weisman Justice Kennedy also contrasted the ways in which the First Amendment protects speech and religion, pointing out that although the government is to embrace no religious view, the object of political speech is to persuade the government to adopt as its own the views expressed (Lee v. Weisman, 505 U.S. 577 [1992], at 591–92). The government itself speaks through the formation of public policy. Those advocating both for and against including same-sex couples in the institution of civil marriage care what the state thinks, and the varying parties want the government to speak in ways that support their own views. Some, in fact, disagree with the distinction Kennedy drew in Lee between the protection of religion and the protection of speech. Brudney, for example, rejects the common objection that governmental speech and spending, even when merely persuasive, are actually coercive because they are funded by coercively extracted taxes. The use of public funds to subsidize some kinds of farmers but not others may disappoint those who miss out, but they do not find the decision an illegitimate exercise of the majority’s sincere beliefs about what best promotes the public welfare. “So why is one subsidy morally sanitary and the other not?” Brudney asks (Brudney 2005, 816; see 815–16).

In 1991 the Supreme Court ruled on the legitimacy of government speech in Rust v. Sullivan (500 U.S. 173 [1991]). In this case it upheld public funding for a family planning program that was contingent on private social service providers’ silence about abortion as an option, ruling that “the government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem another way” (193). Although I oppose what is sometimes called the abortion gag rule, the point stands. Public authority may, with democratic input, determine the scope of public purposes and may even make public funding and in-kind support contingent upon recipients’ conducting their programs in accord with these purposes. This point is consistent with the general prohibition of discrimination on the basis of race, religion, national origin, and sex, for example, in government-funded programs.

This finding may also, however, be interpreted to facilitate giving aid to religion. According to Michael McConnell, the strict separation of church and state constitutes a partial view of the good that denigrates religious belief in the public sphere. A constitutional framework in which individuals and groups bring to bear their competing perspectives and worldviews results in a neutral outcome, he argues, because the laws reflect the judgments of both religious and nonreligious parties about the public interest. Although secularists might argue that laws grounded on religious arguments demean the status of nonbelievers, “the pluralist would respond that no citizen is demeaned by laws that he disagrees with, so long as he has an equal right both to advocate for laws he deems just and to disagree with arguments he does not find persuasive” (McConnell 2000, 105; see 100–105).

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