Equality Practice: Civil Unions and the Future of Gay Rights by William N. Eskridge Jr

Author:William N. Eskridge Jr. [Eskridge, William N. Jr.]
Language: eng
Format: epub
Tags: Social Science, LGBT Studies, Gay Studies, Lesbian Studies
ISBN: 9780415930734
Google: epGYQgAACAAJ
Goodreads: 1679344
Publisher: Routledge
Published: 2001-09-01T00:00:00+00:00

Pragmatic Liberalism and the Conditions for Equality

Equality practice poses a normative problem for liberal theory. What stance should the liberal take toward the failure of the political system to remedy a denial of rights? One approach is the liberal pragmatism of Judge Richard Posner.94 He takes private attitudes and prejudices as a limit on the ability of law to implement liberal rights and urges the liberal to wait until those attitudes change. This stance ought not be attractive to a Rawlsian, because it is too ready to sacrifice rights when remediation is too conflictual. Also, Posner's particular theory is too passive as to private illiberal attitudes: not only does the state often bear some responsibility for such attitudes, but the state can affect those attitudes and, more important, can influence the kinds of arguments that are acceptable in public debate. Rawls's idea of public reason insists that the liberal state deem certain kinds of arguments out of bounds, and gaylegal experience suggests that this is not an impractical aspiration. Given the experience in Vermont and the comparative law survey in chapter 3, there is a basis for believing that state insistence on public reason as a condition of debate has an effect on the conduct of the debate. Notwithstanding the perseverance of private homophobia or anxiety, countries adopting equality measures have seen a shift in public discourse about lesbian and gay relationships and have been increasingly willing to recognize them legally.

The opposite stance would be disavowal: equality practice may be inevitable and even admirable in some ways but is not defensible under liberal premises, as set forth by Rawls. Recall Chief Justice Jeffrey Amestoy's opinion in Baker, which defied exclusionary tradition when it articulated a constitutional right for same-sex couples but then invoked that tradition in fashioning a remedy.95 A Rawlsian could plausibly reject this deployment of tradition as incoherent with liberal principles, and comfortably conclude that the court's equality practice is a great advance in the direction of liberal equality but must be faulted for not going all the way. Initially, I must object that this is an idealized liberalism. Any liberal who insists that recognition of rights—such as the right to marry—proceed through the legal process has already accepted a delay between the existence of a liberal right and its implementation. The point of equality practice is that the more disconnected a right is from our specific legal traditions, as same-sex marriage is, the more time the legal process needs to effectuate it. In the Netherlands, it only took three years to move from registered partnership to same-sex marriage—faster than many court cases are heard in this country. In Vermont, the shift would certainly take a lot longer, and it might never come. Can a strict liberal accept a compromise that might never advance to full equality?

Probably not, but there is a Rawlsian reason to accept a long gap between rights recognition and implementation, under certain circumstances. The fishing practice analogy in Bockman's story worked because all the

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