Courts Liberalism And Rights: Gay Law And Politics In The United States and Canada

4. Toward a Better Liberalism

4 Toward a Better Liberalism IN CHAPTER 3, I critiqued opponents of liberalism and examined why their approaches may not be useful for gay rights claims. In this chapter, I outline the version of liberalism most able to sustain a full range of gay rights claims. I will present an alternative approach to liberal thought grounded in the strain of U.S. political thought articulated by Abraham Lincoln. I also discuss the liberalism of Andrew Sullivan, arguing why his approach to liberal politics is limited and is an example of the need for a richer view of liberalism in this context. TRADITIONS OF RICHER LIBERALISM IN AMERICAN POLITICAL DEVELOPMENT The negative/positive freedom distinction has been a prominent part of U.S. political discourse. Although freedom in the United States has generally been conceived of in negative terms, a distinct strain of thought that includes more positive conceptions of freedom also has been present, as David Greenstone noted. According to Greenstone, two strands of liberalism have been present in the United States: humanist liberalism and reform liberalism. The former emphasizes negative freedom , since it holds that “the satisfaction of self-determined preferences is central to human well-being.”1 Hence, for the most part, humans should be free from external restraint to fulfill their own preferences. The latter type of liberalism, reform liberalism, emphasizes a concept of positive liberty. This is a strain of liberalism “rooted in the New England Puritan tradition and according to which individuals have an obligation—not just an option—to cultivate and develop their physical, intellectual, aesthetic, and moral faculties. Importantly, the obligation extends to helping others to do the same.”2 Reform liberalism places individuals in society and closely links them to it. The community sets the standards for excellence, while the humanist liberal’s community merely provides for the equitable pursuit of individual preferences. Although Greenstone acknowledges that humanist liberalism has been dominant in the United States, he argues that it has never achieved complete dominance. He illustrates this incomplete hegemony by discussing the views on slavery of dominant eighteenth- and nineteenth-century political figures. Whereas the humanist liberal Thomas Jefferson was generally tolerant of slavery near the end of his life, John Adams, with his Puritan background, became highly critical of the institution.3 The humanist/reform distinction also was reflected in the differences between Stephen Douglas and Abraham Lincoln. Douglas’s doctrine of popular sovereignty was grounded in humanist liberalism. Indeed, Douglas “believed in 50 CHAPTER 4 negative liberty. . . . He bitterly opposed the moralistic meddling of the political community in private affairs.”4 According to this view, local control of slavery was the best way to maximize individual preferences. Lincoln, on the other hand, according to Greenstone, is the ultimate embodiment of reform liberalism. For Lincoln, true liberty could only be achieved through a strong Union. He did not separate individual development from society. In fact, “he combined citizenship with morality. . . . He was convinced that an acceptable ethic must seek to redeem boththeAmericanrepublicandparticularindividualswithinit.”5 TheUnionshould not merely ensure the maintenance of a system of atomistic individualism. It must define the parameters of individualism, according to Lincoln. And these notions of positive freedom allowed Lincoln to view slaves as human beings, deserving of inclusion in the political order. Equality is richer with positive freedom; it requires that each member of a community be given due consideration by the state and public policy, not that he or she simply be divorced from the state. According to Greenstone, Lincoln “accepted but went beyond Webster’s and Douglas’s description of the Union. Lincoln’s version . . . included the Union’s commitment to equality of rights, to the love of justice, and to the extension of positive liberty to all.”6 In contrast, Robert George uses Lincoln as an example of the use of morality politics. He argues that Lincoln’s moral superiority to Douglas stemmed from the fact that Lincoln argued the illogicalness of having a moral right to do something (vote on the legality of slavery) that is morally wrong (slavery). Thus, to update the discussion, the claim to have the right to engage in sexual practices that are deemed immoral is not a moral claim. Lincoln would therefore not say that the rights of sexual minorities are analogous to the slavery question, according to this view. This argument, however, misstates Lincoln. For Lincoln, slavery was immoral because it violated the Declaration of Independence and its principle of equality and because...