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If

the state should remain neutral between different conceptions of a


worthwhile life, then what forms of marriage, if any, can the state support?

If the state aims to remain neutral between different conceptions of a
worthwhile life, it is, prima facie, a politically liberal state (PLS).

A PLS has two central obligations:
a) To ensure all citizens have equality of opportunity to satisfy their
conception of the good life
b) To ensure nothing is intentionally done to promote any
comprehensive doctrine above another

Legitimate legislation in a PLS must thus not rely on any comprehensive doctrine
for justification. Instead, public reason, must be invoked to ensure a reasonably
diverse citizenry can endorse laws without having to subscribe to any particular
philosophical or religious comprehensive doctrine.

Establishing which forms of marriage, if any, the state can legitimately support
has implications for both the PLS and its plurality of citizens.

Is support for the traditional hetero-normative model of marriage justifiable on
the grounds of public reason? Is it defensible to everyone, irrespective of his or
her comprehensive doctrine? As challenges to hetero-normative marriage
emerge from same sex couples seeking state recognition of their relationships,
the PLS is forced to reconsider longstanding implicit assumptions about
marriage; as a state supported social institution, marriage is in a state of flux.
The primacy of questioning marriages conception, within the bounds of a
politically liberal state, is thus highly pertinent.

Elizabeth Brake (2010) argues that public reason allows us to justify laws that
promote caring relationships, as caring relationships represent a prima facie
social good. She presents a novel reconceptualization of marriage, deemed



minimal marriage, a non-reciprocal, network of caring adult relationships,
unbundled from the traditional mutual and exclusive constraints of marriage.
Brakes claim is that minimal marriage constitutes the most extensive set of
restrictions compatible with political liberalism. (2010, p. 305)

Im skeptical as to whether minimal marriage is the most extensive set of
restrictions compatible with political liberalism in the short term, however its
arguable that Brakes claim has theoretical merit. I will later address whether I
think minimal marriage is the only form of marriage able to be legitimately
supported by the PLS. However, I turn first to the strongest claims of Brakes
proposal, and that is her unbundling of marriage from the peripheral rights and
it has traditionally bestowed on participants. Traditional hetero-normative state
support of marriage arbitrarily privileges some members of society (Brake,
2010, p. 303) and Brake supposes that the basic structure of society ought to be
regulated not by arbitrary privilege but by principles of justice (2010, p. 304)

The current rights framework is efficient but unjust (Brake, 2010, p. 306)
In line with Rawlsian principles of justice, Brake has embraced the idea that
laws and institutions no matter how efficient and well-arranged must be
reformed or abolished if they are unjust. (Rawls, 1971, p. 3) Minimal marriage
rights therefore, are available as an asymmetrical, divided selection of rights,
necessarily reduced from status quo.

Brakes proposal is both noble and progressive, however a potential limitation to
its widespread support is its failure to account for the social value of marriage as
an institution, among reasonably diverse range of comprehensive doctrine
holders. Her minimal marriage proposal is almost too ambitious, insofar as it re-
appropriates the term marriage to a construction most members of society
wont recognize. Is Brakes proposal just, equitable, and well suited to the ideals
of a PLS? Absolutely. Is it likely to be implemented in the near future, by even
the most progressive, PLS? Possibly not. The barriers to entry are incredibly
high, it is difficult to envisage a culture wide reconceptualization of marriage as a
minimal, variable and non-exclusive arrangement.




If we were starting from first principles, and designing a utopian, PLS, Brakes
minimal marriage is easily justified on the grounds of public reason. However,
we are not, and the social policy needed to secure equal citizenship in a given
society must be context sensitive to be effective. (Hartley & Watson, 2012, p.
187) In the short term, state recognition of same sex marriage may be the best
way to ameliorate discrimination suffered by particular citizens, this is because
the state has the power to confer legitimacy (Hartley & Watson, 2012, p. 203)
on certain relationships where second-class citizenship is experienced by a
minority group.

So in a contemporary western democracy, a prototypical PLS is justified on the
grounds of public reason to support same sex marriage to ensure homosexual
couples have an opportunity to advance their conception of the good life. This
represents equality of opportunity for same sex couples, as citizens holding
traditional hetero-normative comprehensive doctrines are currently allowed to
advance their conception of the good life, with state support. In order to adhere
to politically liberal principles of justice, the state can support traditional hetero-
normative marriages, in addition to same sex and gender queer marriages,
providing equality of opportunity for citizens to advance their conception of the
good life.



References

Brake, Elizabeth 2010, Minimal Marriage: What Political Liberalism Implies for
Marriage Law, Ethics, 120(2), pp. 302 - 337.

Hartley, C. & Watson, L. 2012, Political Liberalism, Marriage and the Family, Law
and Philosophy, 31(2), pp. 185 - 212.

Rawls, John, 1971, A Theory of Justice, Harvard University Press, Massachusetts

Rawls, John, 1997, The Idea of Public Reason Revisited, The University of Chicago
Law Review, 64, pp. 765 - 807.

Wedgwood, Ralph, 1999, The Fundamental Argument for Same-Sex Marriage,
Journal of Political Philosophy, 7(3), pp. 225 - 242.