Uncommon Approaches to Commons Problems: Nested Governance and Climate Change

Blake Hudson and Jonathan Rosenbloom

Volume 64, Issue 4, 1273-1342

The national debate over marriage discrimination against gay and lesbian Americans is playing out in state legislatures, at the ballot, and in the federal courts under the conventional notion that liberal rhetoric, the liberal political philosophy indebted to John Rawls, and the unencumbered self at their cores are the bases for the most effective arguments for the gay rights movement. Pro-gay groups talk often about rights, liberty, and the freedom to choose whom to love. Even in court, gay rights groups repeat the Supreme Court’s statements about a fundamental right to make the choice to marry. But the conventional wisdom ignores the important social role marriage plays in society and the way in which the cultural and sociological value of marriage and gay relationships can help jump the constitutional hurdles facing those seeking the freedom to marry.

This is the first in a series of three Articles investigating the underappreciated role that the social theory of Emile Durkheim plays in the quest for the freedom to marry for gay Americans. To that end, this Article begins the discussion by examining the Durkheimian legal arguments that go unnoticed in equal protection and due process claims against marriage discrimination. This Article challenges two assumptions: first, that the most effective legal argument for marriage rights is a purely liberal one, and second, that the substance and rhetoric of liberal toleration cannot exist symbiotically in the marriage discrimination debate with a more robust politics based on the experiential social value of marriage and gay relationships. The freedom to marry is both a liberal right and a piece of the good life. Drawing on Durkheim, this Article discusses a sociological theory of marriage and argues that the constitutional case for the freedom to marry is not just about the rights of equal protection and due process, but also about the sociology of marriage. In other words, a successful constitutional argument depends on the recognition that marriage is a social good with both general and everyday demonstrable benefits for the married couple and society as a whole.

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