The Role of Public Reason in Obergefell v. Hodges

Abstract

Public reason, as developed by John Rawls, is the idea that the “moral or political rules that regulate our common life be, in some sense, justifiable or acceptable to all those persons over whom the rules purport to have authority.” This Essay explores the role that the idea of public reason plays in the opinions of Justice John Roberts and Justice Anthony Kennedy in Obergefell v. Hodges, the Supreme Court's 2015 landmark decision recognizing a constitutional right to same-sex marriage (SSM). Most notably: Roberts accuses Kennedy of violating public reason by grounding the right to SSM on a sectarian creed, namely, the comprehensive liberalism espoused by John Stuart Mill. Kennedy implicitly reproves citizens who support SSM bans on religious grounds, perhaps gesturing towards a civic duty or etiquette to refrain from supporting laws based solely on one’s creed. Roberts in turn criticizes Kennedy for unfairly applying the demands of public reason to ordinary citizens. In these ways, Roberts and Kennedy act less like exemplars of public reason, the role that Rawls envisions for a supreme court, and more like whistleblowers of others’ violations and misapplications of the idea.