UW School of Law
Transcript - Harvard Professor Michael Sandel
Well, good afternoon, everyone. I'm Kellye Testy, the Dean of the
School of Law. It's my pleasure to welcome you today. We are so very
pleased to welcome Professor Sandel to our law school and I want to let
some of you who are standing know that if you care to be seated, we do
have overflow seating in Room 127. I'm just thrilled to see such a big
crowd out today.
law school is known for being a center of ideas and also of action, and
so to have an opportunity to explore the topic of justice in great
depth with Professor Sandel is indeed a wonderful opportunity for us.
And I'm just so pleased that all of you decided to take advantage of
this and be here with us today.
My colleague, Professor Steve Calandrillo, who's also our
Associate Dean for Faculty Development will now share a few words with
you to introduce our program today as he joins me at the program, I
want to thank him for his work.
He is in charge of the law school of our faculty development
program of making sure this is a robust intellectual school which it
certainly is. So Steve, thank you for your good work and let me turn
the mic to you.
Thank you, Dean Testy, and it is wonderful indeed to see so many folks
out here today. This is an exciting time at the University of
Washington School of Law and we are absolutely honored to have with us
today a legendary Harvard professor, Michael Sandel.
is the Anne and Robert Bast Professor of Government at Harvard
University where he has taught political philosophy for over three
His writings have been translated into 11 foreign languages.
They have appeared in "The Atlantic," "The New Republic," "The New York
Times, " and countless other venues, and it is not an overstatement to
say that he is one of our generation's most important philosophers.
This is a very exciting event.
I work his materials on justice into my own contract law course
that I teach here at the UW School of Law. His work on liberalism and
the limits of justice where we explore the ideals of contract law, the
dual goals of freedom to contract, autonomy to contract, as well as
The idea that contracts should be vehicles of mutual benefit
and we note that those two ideals of justice often run in conflict with
His class on justice at Harvard is one of the most popular in
the University's history, so over 14, 000 students have now attended
that class. And now these days, it's 1, 000 students a year. There's
only roughly 1, 000 undergraduates at Harvard, so he teaches roughly
two-thirds of the entire student body by the time they graduate from
that distinguished university.
Now his class is on TV as well. It's being brought to PBS and
we will see a preview of it in just a couple of moments. But it is the
first time for a regularly scheduled college course to be brought to
television and this is no low-tech affair.
If any of you read the article last week in "The New York
Times" you saw that there's three high-definition TV cameras, multiple
microphones, interactive webcasts and podcasts. This is not your
grandfather's version of PBS. This is the exciting version that we will
And this class is for the first time being brought here to the
University of Washington School of Law and we can take the same journey
in moral reflection and on thinking about justice and what the right
thing to do as his students at Harvard and as the readers of his book
The subject is really citizenship and political discourse and
thinking about all the controversial moral issues of the day. His book
covers areas such as affirmative action, the recent government
bailouts, same-sex marriage, slavery reparations, surrogate
pregnancies, immigration reform, all the hot button topics from the
perspective of justice and what is the right thing to do.
Thinking about it in a critical way challenging our taken for
granted assumptions about these areas and letting us view them in a new
I am extraordinarily excited to have him here with us today.
We're going to start quickly with a roughly four-minute preview of the
PBS version of his course on justice and then I invite folks after the
roughly hour-long lecture to hang around and talk to Professor Sandel
and he will sign books of his - sign copies of his new book on justice
So with that, I think we're going to transition to the video on
the PBS version of justice and after that, Professor Sandel will come
and I hope you will join me with giving him a grand welcome.
[PBS video starts playing]
What's the right thing to do? That's the question I've asked thousands
of students at Harvard University in my class on justice.
it be just to torture the suspect to get the information? Do you think
that person with a bad parent owes them less? Is it all right to steal
a drug that your child needs to survive?
My name is Michael Sandel and over the years, thousands of
students have joined me for an ongoing debate about the moral decisions
we face in our every day lives.
This is a course about justice and we begin with a story. Suppose you're the driver of the trolley car.
Nikolai, if you didn't think you'd get caught, would you pay your taxes?
I don't think so.
Do I think I should be able to bid for a baby? I'm not sure.
It's a market. I mean.
In a situation that desperate, you have to do what you have to do to survive.
You have to do what you have to do?
You got to do what you got to do.
What do you say to Marcus?
I've never been in a class like this before where they ask you to
really think and consider the moral dilemma. I've never had such a fun
class in my life.
We turn to the great philosophers of our past for answers. Do you think
Bentham is wrong to add up the collective flabbiness?
I don't think he's wrong, but I think Murphy's smarter than any page.
But then Bentham has to be wrong, if you're right, he's wrong.
OK then, he's wrong.
Thank you. Well done. And we turn to the present to challenge the reasoning behind the moral choices we make every day.
I think that what happened in the past has no bearing on what happens
today. And I think that discriminating based on race should always be
I just want to say that White people have their own affirmative action
in this country for more than 400 years. It's called nepotism and quid
pro quo. So there's nothing wrong with correcting the injustice in
discrimination that's been done to Black people for 400 years.
[video cheering and applause]
Even effort depends a lot on fortunate family circumstances for which
we can claim no credit. Raise your hand those of you here who are first
in birth order.
I am too, by the way.
Mike, I noticed you raised your hand.
Taking justice was really an eye-opening experience for me. Everything
that you've thought of up to that point comes questioned, challenged.
The purpose of sex is one, for it's procreative uses and two, for a unifying purpose between a man and a woman.
Your movies are your beliefs and that's fine, but similar union is not marriage within the Catholic church.
What is the right thing to do?
People have been arguing for millennia really and there's still not one
definite answer in ways that makes a lot of things possible, but it's
beautiful at the same time we're still debating similar questions.
And the reason they're unimportant, the reason they're inescapable is
that we lift some answer to these questions every day.
And now I have the chance to invite you to join us as Harvard opens it's classroom to the world.
[PBS video stops playing]
All right, well thank you. Thank you very much.
It's a great pleasure to be here. I want to begin by thanking Dean
Testy and also Dean Calandrillo for that very warm welcome and also for
the spirit of intellectual excitement brought to the law school and
that it's so palpable here in this room and I know in the overflow
room, so thank you all. Thanks to both of you and thank you all for
coming, for this discussion.
the course and in the series, a preview of which you've just seen and
in the book on justice, I lay out three different ways that
philosophers have thought about justice broadly speaking in the history
of political thought. Here's what they are:
One conception of justice is the utilitarian one. It says the
right thing to do in law and for that matter in personal morality is to
do whatever will maximize welfare. Whatever will promote the greatest
happiness for the greatest number of people. Maximize utility. Approach
number one, it goes back to Jeremy Bentham and to John Stewart Mill.
A second approach disagrees with that. It says, no, justice
isn't just about adding up people's preferences, trying to maximize the
balance of happiness over suffering. What about respecting people's
individual rights? What about respecting freedom, the dignity of the
Think back, if you need to see the defect in utilitarianism,
says this second point of view. Think back to ancient Rome, where they
threw Christians to the lions in the Colosseum for sport. How would the
utilitarian calculus go? Yes, it's true, that question suffers
excruciating pain while being devoured by the lion.
But think of the collective ecstasy of the Romans packing the
Colosseum. If there are enough Romans, tens of thousands, and if they
are happy enough, ecstatic enough at this gruesome spectacle, then so
goes the challenge to utilitarianism. It's not obvious that there's
anything wrong with it.
So, the tradition that challenges utilitarianism, at least one
of the traditions, says justice must be more than numbers, more than
adding up happiness and preferences. It must have something to do with
fundamental principles of respect for individual rights and individual
freedom, the ability to choose.
Now, the freedom approach, the second approach to justice, is a
capacious school. In fact, many of our political arguments today, and
arguments in law, involve contests between adherences of the freedom
There are libertarians who say to respect individual rights and
the freedom to choose, is to leave in place the results of market
relations, provided they reflect voluntary agreements.
And then there are critics of the libertarian view, the
laissez-faire pro market view, who also argue in the name of freedom,
but they say that some results of market transactions may not really be
free or reflect freedom of choice, if the background conditions of
society are such that people, in effect, some people are coerced by
economic necessity to take on certain jobs, let's say in sweat shop.
So, there is the libertarian strand of the freedom school, and
the more egalitarian or the fairness strand of the freedom school, and
many of our debates today, including debates between liberals and
conservatives in the United States, share the idea that justice is
about freedom and individual choice, but disagree about how to
conceive, how to understand and apply the idea of freedom and consent
So, we have two broad traditions view, totalitarian and the
rights based freedom approach. There is also a third that goes back to
ancient philosophy that says justice isn't only about maximizing
utility, or even about respecting freedom.
It's also about honoring and recognizing and promoting certain
virtues, certain civic virtues. Certain goods, certain common goods
that may be implicit in social practices or in democratic life itself.
So, the virtue and common good tradition goes beyond the first
two conceptions, the utilitarian and the freedom individual rights one.
And this third tradition goes back to Aristotle. Now, the first two,
maximizing utility and respecting freedom, these are the two most
familiar these days in law, in political theory, and for that matter,
in political argument.
The thesis of the book and the thesis that I would like to try
out on you today, is that these two familiar traditions, the
utilitarian and the freedom based traditions, are inadequate. They
don't fully make sense of the understandings and practices of justice
that not only the ancients tried to articulate, but that we play out
today in politics and law.
So, I would like to defend, or at least give you some sense of
my defense of this third tradition. Call it the civic virtue and common
good tradition of justice. I'd like to defend the following claim, that
we can't detach questions of justice and rights from debates about
virtue and moral dessert, and the nature of the good being distributed.
Another way of putting my claim is that justice is unavoidably
judgmental. One appeal of the first two traditions, the utilitarian and
the freedom based tradition, is that if they succeed, they can spare us
the need, especially in pearl of societies fraught with disagreement.
They can spare us the need of trying to sort out highly
contested conceptions, the nature of the good life, or of the proper
understanding of social practices, or of goods.
And what I want to suggest to you is, though it might be
tempting to try to avoid those disagreements when we're arguing about
justice, we can't. Now, why can't we? Why is justice unavoidably
judgmental? Why do debates about justice embroil us inescapably in
arguments about the nature of the good?
Well, to try to answer that question, let's take a couple of
concrete cases and see what you think about them. So let's set aside
this abstract preamble that I've just given you, and consider one or
two contemporary controversies.
The first one I would like to put to you, and we'll see what
you think, and maybe Dean Callandrillo, he's already volunteered to go
and help amplify people's voices.
I'm the Phil Donahue.
Let's first take up a law case that you may or may not have already
studied in law school. It's about a fateful question. It's about
whether a disabled golfer has a right to a golf cart in golf
tournaments. Have they studied that already?
I can't speak for them, but I have.
Well, you have!
But you're a professor!
was the case. It was a few years ago. Casey Martin, do you remember
him? He was a professional golfer, a very good golfer, played at
Stanford, went on the professional tour.
He had a congenital circulatory disorder that resulted in him
having a very bad leg, so walking the course for 18 holes was not only
very painful, but it exposed him to serious risk of injury for his leg,
given the condition.
But, he was otherwise a terrific golfer. He asked the PGA for permission to use a golf cart in the tournaments, they said no.
He went to court, because the Americans With Disabilities Act
passed by Congress provides that in public accommodations, the
organizers, the governing bodies, must make reasonable accommodations
for those with disabilities, provided those accommodations would not
fundamentally alter the nature of the activity in question.
So, he sued the PGA for the right to use a golf cart. And it
went up to the Federal Courts, and it found its way to the U.S. Supreme
Court, this case about a golf cart. Now, imagine you were a member of
the U.S. Supreme Court, and you have to decide this case. And let's
just assume for the sake of argument, that what you're deciding is what
is fair, what is just.
How many here would rule in favor of Casey Martin and say that
he does have a right to use a golf cart in the tournaments? Raise your
hand. And how many would say no, he doesn't have a right to use a golf
cart? So we have a pretty good division of opinion, a majority in favor
of Casey Martin, but a sizable minority against.
I hope you voted in the overflow room, maybe the results were different.
Maybe they're more for the underdog in the overflow room than we have
here. Well, let's hear from someone who can say why you think - let's
take someone who rules for Casey Martin first. Why should he be given
the right to use a golf cart? Who is willing to volunteer and answer?
Yes. What do you think?
In my opinion using a golf cart doesn't change the nature of the game.
And why not?
Because the skill of golfing is not in the walking from hole to hole
but rather in hitting the ball. [crosstalk] In an innocent manner.
Great. It's about hitting the ball. Right. And what's your name?
Carolina. OK. Carolina, are you by any chance a golfer?
Not at all. So I can't say. Maybe the walking is more important than I give it credit for.
No. I think you make a pretty good point. All right, so Carolina says
they should be required to make an accommodation for him because after
all waking the course is not essential to the game. The essence of the
game is hitting the ball.
Into a hole. That's what it's about. OK. Who disagrees with Carolina?
Someone who would not grant him the right to use a golf cart. Yeah. Why
In this instance I guess I would say no because as a sporting event as
opposed to something else. Sports are all about arbitrary sets of
rules. I mean, the PGA says these are the rules we are going to have
for golf, and those I would say don't necessarily have to be as
also, I don't golf myself so I couldn't speak to this directly but I've
heard that in at least professional term is the fatigue of all that
walking actually does start affecting your concentration in your game
play so it's not a completely trivial factor.
OK. And what's your name?
My name is Isham. Isham.
Isham. You're making two arguments here. First you say the rules of a
game of a sport like golf are entirely arbitrary. And then you say,
actually, the rule about walking the course is important because the
game includes the element of fatigue.
Not quite sure that those two arguments hang together.
They are separate.
OK. They're separate. All right. Fair enough. Fair enough. [laughs]
So let's say there are two arguments I'd make to the point. Though....
It sounds like you're becoming a lawyer.
One weekend. Are you a first year?
OK. You're well on your way, I can see. So who wants to... is there
anyone here who is a golfer who would like to address Carolina's point
that walking the course is not really essential to the game? There're
no golfers in the entire law school? Being testy?
Testy: I think we found one.
You found one.
Man: You didn't say good golfer.
I would say that the walking in a golf tournament does have a minor
effect. But fundamentally, I agree with Carolina, that it does not
change the skill of the game. It's not material, I believe, to the
outcome of the game. It has an immaterial or a somewhat insignificant
It's peripheral to the game itself as you've played it.
Yes. I've played a lot on my feet too because golf carts are expensive.
I've played on carts as well though, so I speak to both.
Do you use a caddy by the way?
Man: Never used a caddy.
OK. Who wants to take, really take on Carolina about walking being essential to the game? Go ahead.
Yeah I'm just sort of wondering about the idea of letting the PGA be
the experts and what's essential and not essential about golf? So to
You're for or against letting them being the judges of this?
I guess I'd probably come down and say I'm for it. I mean, let's say
I'm a judge, I don't golf, I'd say well, we've got a professional
golfing association, they've set themselves up as sort of, the people
who know what goes into golfing. I think if they feel that the walking
is really essential about it, I'd....
They ought to know. It's their game. It's their tournament.
Yeah, I'd say they ought to know. Yeah. I mean I'd probably go along
with the idea that it's a sporting event that's going to have to draw
some lines around what kind of aids you can have and whatnot, so I mean
OK. And tell us your name.
In fact David, they had in the trial, at the trial level, they brought
in as witnesses, the PGA did, some of the greats, the great golfers of
the past. Arnold Palmer, Jack Nicklaus, Tom Kite to testify, and they
all testified, Carolina's view not withstanding.
golfing greats all testified that walking the court is an essential
part of the game, including the fatigue factor. Now is there anyone
here who in the face of that testimony, and in the face of the
expertise of the PGA, is willing to dispute it or who thinks there's a
ground for disputing it? What do you think?
Well thinking about it, I can see that this man, he has a crippling
disease, or he has a crippling thing that doesn't allow him to walk.
Therefore, he maybe as or if not more tired or more fatigued, or more
mentally drained, than in those who are actually walking. And so it
could become moot in the sense of the significance of walking.
So if he were given a cart maybe that would just level the playing
field with respect to fatigue and demand and distraction and
concentration. Well maybe so. What do you say?
[off mike] There are plenty of golfers that are [inaudible 26:17] [on
mike] but that doesn't mean that they should be allowed to take carts
from one hole to another.
mean that, again, with the fatigue factor and then you look at not only
walking in that certain day but golf tournaments are over a period of a
week, and golfing isn't, like if it was just a matter of hitting the
ball and getting it into the hole, take them all to the driving range
and put out targets and whoever hit the target would win.
I mean it is walking in the fatigue in the overall....
Yeah. It's the, being consistent through not only 18 holes, but multiple days of 18 holes.
All right. And what's your name?
Dan. So Dan and Carolina seated next to one another hold different
views about what really is essential to the game of golf. Do you know
how the Supreme Court decided this case? They ruled in favor of Casey
Martin. They said he did have a right under the act, to a cart. It was
a seven to two opinion. Justice Stevens wrote for the majority.
what's intriguing about the opinion, is that he analyzed the history of
golf and concluded that walking the court is not fundamental of the
nature of the game of golf.
Quote, "From early on, the essence of the game...., " this is
Justice Stevens, "....has been shot making. Using clubs to cause a ball
to progress from the teeing ground to a hole some distance away, with
as few strokes as possible, that's the essence of golf, " said Justice
Stevens in his opinion.
And among the two dissenters? Was guess who? Justice Scalia. He
wrote a spirited dissent. He rejected the notion first of all that the
court could determine the essential nature of golf. But his point was
not simply that judges lack the competence to decide this grave
question. He challenged the premise underlying the court's opinion.
He disputed that it's possible to reason about the purpose or
the essential nature of the game. So in a way, he challenged, going
back to the three theories of justice I began with, he challenged the
Aristotelian idea that it is possible to reason about the essential
nature or purpose of a game.
Here's how he put it, quote: "To say that something is
essential, is ordinarily to say that it is necessary to be achievement
of a certain object. But since it is the very nature of a game to have
no object except amusement, that is what distinguishes games from
productive activity, it is quite impossible to say that any of the
games arbitrary rules is essential."
That's what Scalia said. And since the rules of golf are as in
all games entirely arbitrary, there's no basis for critically assessing
the rules laid on by the PGA.
Now, what's interesting about Scalia's dissent, and about the
discussion we just had, is that taken together they illustrate a big
question about political philosophy, and in particular about
Aristotle's theory or justice, because remember the third approach to
justice says justice is unavoidably judgmental.
To determine people's rights, we have to inquire into the
purpose-Aristotle called it the telos-the essential nature of the good
in question or the activity, in this case the game of golf.
And we had an argument just now where people had different
conceptions about what's essential to the nature of the activity. And
depending on how you answered that question, you would have a different
view on whether Casey Martin had a right to a golf cart.
And so what Scalia is saying in effect is, that's the wrong way
to reason about justice, at least with respect to games. Now, I think
Scalia's argument is questionable on two grounds. First, no real sports
fan would talk that way...
About games being purely arbitrary in their rules. If you really
believed that, that the rules of a sport were entirely arbitrary, you'd
have no reason to care about the outcome of the game, no reason to
celebrate the great heroes of the sport.
There's another reason he's wrong, I think. And that is that he
misses an important Aristotelean insight. Aristotle didn't write about
golf, but I mean about the question of deciding rights. What was this
dispute about the golf cart really about? What was at stake?
On the surface it seems that only fairness was at stake. Would
it or would it not give Casey Martin an unfair advantage? If it's only
about fairness, there was an easy and obvious solution. What would it
have been? Yes, let everyone use a golf cart if he or she wants to.
Then there would be no question of giving Casey Martin an unfair
But no one on either side wanted that. From the standpoint of
the PGA and the golfing greats, that solution would have been more
anathema than making an exception for Casey Martin. Why?
Because what was really at stake in this dispute, and what I
think animated the passion of the golfing greats about the physical
fatigue factor, what was really at stake was a question of honor and
recognition, mostly connected to the question of whether walking the
course and exertion and fatigue is essential to the game.
What was at stake was the desire of the PGA and the top golfers
I think that their sport be recognized, honored and respected not just
as a game, but as an athletic event.
Let me put the point as delicately as possible. Golfers are
somewhat sensitive about the status of their game. It involves no
running or jumping, and the ball stands still.
No one doubts that the game of golf is a demanding game of
skill. But the honor and recognition accorded great golfers depends on
their sport as being seen as a physically demanding athletic event. So
if the game at which they excel can be played while riding in a cart,
well then their recognition as athletes could be diminished or
This I think explains the vehemence with which the professional
golfers insisted that physical fatigue, walking the course, is
essential to the game. And if that's right, then the whole argument
about whether justice requires that Casey Martin have a golf cart
brings out the moral force of the third approach to justice.
That it's not only about utility and the pleasure of the fans
and the ratings, and it's not only about fairness and leveling the
playing field, it's also about figuring out the essential purpose of
the activity of the good being distributed-
Where that purpose is closely connected with the allocation of
honor and recognition, what virtues do we celebrate when we admire
great golfers, an Aristotelean reading of the Casey Martin golf cart
Now that may seem to you maybe interesting but relatively
trivial, a golf cart. Consider another debate that is a fought debate
and a live one today. The debate over same-sex marriage. Now, there...
There are some who say...
[chuckles] Got to stay away.
There are some who say that the argument for same-sex marriage can be
decided without being judgmental one way or the other. It's possible to
make an argument, some would say, for same-sex marriage simply on
grounds of non-discrimination, or equal rights, or freedom of choice.
Within, that is, the second approach, the freedom, individual rights, consent approach to justice. But I wonder if that's true.
In order to test that idea let's take another survey, see what
the opinion is in the room and have another discussion, this one about
same-sex marriage. Now, consider two positions. Position one, the state
should recognize only traditional marriage, marriage between one man
and one woman.
Position two; the state should accord recognition to marriage
between couples, partners of the same sex. So as between those two
positions, let's take a poll. How many are in favor of position two,
the one that would have the state recognize same-sex marriage? Not
civil unions, but marriage, full-fledged marriage.
All right, and how many would favor position one, the
traditional position that state should recognize only marriage between
one man and one woman? How many hold that position? OK, a handful of
people. The majority in favor of same-sex marriage.
So let's venture unflinchingly into this discussion, and let's
see how it unfolds. So, let me hear first from a defender of same-sex
marriage. On what grounds would you, well, let's do it the other way
around. Those of you who oppose, are you willing to get us going?
Be very brave, someone, and give us the reasons why you favor
traditional marriage only for state recognition. Who's willing to take
All right, I'm really excited about taking on the classroom on this one.
All right. But you're very brave and I'm very grateful. Go ahead.
All right. I think that in traditional marriage, the emphasis is on the
husband, the wife and the children. And in that environment, that's the
most proven environment for children to thrive.
so, when we start looking at other alternative forms of family
relationships in which children are being raised, they're not being
raised with their original mother, their natural mother and their
And that's something that throughout the world and throughout
history has been proven to be something that will develop children into
good, positive members of society, and that when we start taking away
from that, then we're at risk for what will happen because for one,
it's never been done on a large, countrywide scale.
And the second point being that we have seen in a lot of
divorced homes and in single parent homes, we see a lot of real
problems for the children.
OK, good, thank you. And what's your name?
Gavin. Would anyone else up there with Gavin like to add to that?
[laughs] No? OK. So, Gavin favors state recognition only of marriage
between one man and one woman by pointing to the importance of children.
rearing and supporting children as central to what marriage is all
about. Now let's hear from someone who has a response to that argument,
someone who favors same sex marriage and can address the argument about
children. Who is willing to offer a reason?
I think that when you look at child development, what it actually
really comes down to is consistency. There is some research that would
even support that so-so parenting that is consistent would be better
than a parent who is really excited to be around their kids sometimes
but absent some of the time and . . .
What is your name?
So, Allison, what would be the affirmative argument for state recognition of same sex marriage?
If you are looking for the benefit of the children, it wouldn't really
matter if it is a husband and wife. It would just that the people
raising the children are consistently together in that relationship for
the children. So, any formulation of marriage would be fine under that.
Would you restrict marriage, Allison, to two partners?
By that logic, no, you wouldn't have to.
Polygamy should be recognized by the state, polygamous unions, do you think?
If you are looking for the benefit of the children, if it is possible
that a marriage with multiple partners like that is consistent and good
for the children then you could do that.
It is interesting; you seem to share Gavin's premise that the test of
marriage, what makes for marriage worth encouraging, is caring for and
raising children. You agree with that?
I don't agree with that but I was responding to his premise.
OK, well tell us why you don't agree with that. Not about children primarily, why not, what is it about?
It is about the union. It is about love between two people and the state recognition of that.
So the state recognition is fundamentally about a loving union between two (maybe more) people.
Michael. Yes? OK. Who hasn't gotten into the discussion so far? Who would like to address either of those reasons?
I think that the function of laws and government is to create ways of
creating great societies and communities. I think there is little
disagreement that marriage isn't good for communities, that connection
creates stable relationships and ways of raising children and
societies, but what doesn't seem to matter very much is whether it is
between a man and a woman.
way you know that is true or you know this logic makes sense is it
wasn't very long ago in this country when it was illegal for different
minorities to be married. Where it was illegal for a black man to marry
a white woman, vice versa, and the same exact logic was used. This
mixing of races was somehow destructive to the community and society.
Well actually though, Gavin's reasoning had to do with caring for
children which is a different reason from the race based . . . .
And, I reject that reasoning.
So, what do you think is the legitimate purpose and rationale for state recognition of marriage?
Of marriage or same sex marriage?
Of marriage, in general?
It is because it builds great communities.
Whether or not it has to do with child raising?
OK. In the back, maybe you can just speak up; it might be hard to reach
you with the microphone. Just stand up and speak. Oh, there's . . . .
It came anyway. I would say that if you are arguing Gavin's point, I
guess, is that you should instead of prohibiting same sex marriage you
should condemn people who are getting divorced, heterosexual people who
are getting divorced. I mean, if there is a crisis that that creates,
why is nobody speaking to that?
Gavin, do you want to address that? You can just stand and speak loudly.
[off-mike comment] . . . and when we look around the room and we say,
"Well, my parents were divorced and I'm fine. And my parents were
divorced and I'm fine." I mean, sure, we are in a law school. I mean we
have all done well for ourselves that is why we are here.
I think, generally across the board, divorce has been a big problem
because having no fault divorce is making divorce very easy so we slip
in and out of relationships. It is just one more way of discouraging
stability in a home and I think that is a problem also that we need to
OK, let me see if we can step back from these reasons that people have
offered, very powerful reasons, and connect them to the early part of
our discussion and maybe even to the golf case.
we have in the debate about same sex marriage, and it emerged even in
this brief discussion but it doesn't always emerge in the public
debate, is that the argument for and against state recognition of same
sex marriage depends heavily on what you think the purpose or the
essential nature of marriage is. What is marriage for?
In that respect, the structure of the argument is very similar
to the debate over the golf cart. There the issue is: What is essential
to the nature of the game of golf? What qualities, virtues, golf
trophies are meant to honor and recognize and reward? The ability to
surmount physical fatigue and to walk the course or the ability to hit
the ball into the hole at a distance?
In the debate about same sex marriage we have at least, as
between Gavin and Allison, two rival accounts of what marriage
essentially is about, what it is for. Two rival teleologies of the
social institution of marriage. One answer to the question, "What is
marriage for, what qualities should it honor and recognize?" has to do
with bearing and raising children.
It is fundamentally, Gavin says, about children and about
procreation, some people would say. Allison says, no, marriage is
fundamentally about something else. It is about recognizing and
honoring and encouraging and promoting a loving commitment extended
through time maybe with associated mutual responsibilities between the
Depending on which view of the purpose or the telos of marriage
you accept, you are likely to come to a different conclusion about
whether the state should recognize same sex marriage or not-
Which bears out Aristotle's point: that to decide rights and to
determine justice, we have take on the substantive moral question about
the nature of the goods that are being distributed, in the case
marriage, access to marriage.
Here we see an example of how, in the same sex marriage debate,
justice is judgmental. What would it mean to try to decide the question
without coming to grips and trying to resolve the debate between these
two accounts of what marriage is for? Well, there is a possible view.
There is a third position in the marriage debate. That would be
to say the state should not confer recognition on any kind of marriage.
That was what you were going to say. Say a little about that.
I was going to say, that if the state is going to recognize
heterosexual marriages they should also recognize homosexual marriages,
you know. But personally, I don't see any reason why the state should
necessary get involved in romantic relationships at all.
Or conferring honor on them?
What does that mean? That the state should not be in the marriage business, is that what you would say?
What is your name?
My name is Eric.
So, does that mean that there would be no marriage at all? How would marriage happen?
Well, I think marriage represents, if you will, a bundle of rights and
responsibilities and I think those could be divided up some other way.
So you would have civil unions, you would deal with tax consequences
and inheritance, universal civil unions, maybe, but no marriages.
Well, if you wanted to have a religious ceremony, if you believed in that kind of thing, but I don't necessarily. . . .
You could go there. You could go to a church, or a synagogue or a mosque to get married.
But I don't think that the government should necessarily on account of that give you tax breaks or . . . .
So the state should have nothing to do with recognizing it.
And the other point that I was going to make is if marriage is all
about children, shouldn't people who can't have children not be able to
OK, that is a powerful argument. In fact it is interesting, so there is a third. . . . What is your name again?
Eric raises a third possible policy about marriage. Well I raised it
and Eric elaborated it, which would be essentially not to abolish
marriage but to relegate it to private associations, religious,
communities, they could set whatever rules they wanted to.
is an opinion writer Michael Kinsley who offered up a version of this
who said: Let churches and synagogues confer marriages, but let people
decide what private associations they want to bless their marriages.
Let department stores and casinos get into the act, if they
want to, and if people want to go there an get married they can but the
state should not take sides in trying to decide whose marriages are
worthy of civic blessing so to speak.
Now if you take Eric's position essentially what that amounts
to would be the disestablishment, not the abolition, but the
disestablishment of marriage as a state function.
You would have a consistent position there that would not
perhaps, require you to enter into the teleological arguments about
what marriage is essentially for, at least from the standpoint of the
What is striking though about Eric's disestablishmentarian
position about marriage is that in the public debate for and again same
sex marriage very few of the advocates on either side want that. In a
way, Eric's nonjudgmental solution is like giving everybody access to a
golf cart in the Casey Martin case. So it tries to recede from the
judgmental character of the question.
Neither side is keen, for the most part in the same sex
marriage debate, to have the state recognize anybody's marriage. Why?
Because both sides want the honor and recognition by the political
community for the union that they believe is worthy of it.
So, unless you are prepared to embrace the disestablishment
position, Eric's position, on marriage, we are drawn unavoidably into
some judgment, some substantive moral argument about what sorts of
unions are worthy of honor and recognition by the state in the name of
If you look at the Supreme Court argument by the Massachusetts
State Supreme Court, which was the first to require, within a state,
recognition of same sex marriage. Justice Margaret Marshall wrote that
opinion, and her opinion includes some reasons drawn from the freedom
school: autonomy, freedom of choice, the consent of individual
But she recognized that that argument was not enough to get her
all the way to same sex marriage. So she took up the claim made by the
opponents that essential to marriage is procreation.
One of the arguments she made was that we don't require
fertility as a condition of marriage between a man and a woman; we do
permit a man and a woman who are beyond the age of reproduction to
So she took on and argued about the claim that procreation and
child bearing and child rearing for that matter are necessary to
marriage. So even in this State Supreme Court opinion that defended a
right to same sex marriage, the court was drawn into a discussion, to
an argument, about what Aristotle would call the telos of the good in
So how does the case of Casey Martin's golf cart and the
current debate in the courts and in politics, shed light on the thesis
of the book.
The thesis that I would try to defend here in the following
way: even though Aristotelian-type arguments about the nature of the
good in question, seem ancient and old fashioned even though those
arguments embroil us in controversial moral and even sometimes
religious questions, the arguments we have about justice and rights,
implicate us in arguments about the nature of the good.
So the most remote of the three conceptions of justice, this
teleological argument from the nature of the good, the essential nature
of the practice, is more present rumbling around just beneath the
surface in the debates about law and politics that we have even today.
So what is the conclusion of all of this? Well, it seems to me
that the conclusion is this: despite the temptation to set aside, for
purposes of justice and rights, fundamental disagreements about
morality and even sometimes about religion, it is often unavoidable
that we engage, in law and in politics, with questions of the nature of
Justice is inescapably judgmental, whether we are arguing about
golf carts, or about same sex marriage, or about affirmative action or
any number of the issues that divide us these days.
Questions of justice and rights are bound up with competing
notions of honor and virtue of pride and recognition. Another way of
putting the point is that justice is not only about the right way to
distribute things; it is also about the right way to value things.
Now, you might say what I have offered is a recipe for
contention and disagreement. Here is what I would say about that: If
you look at our politics today and if you listen to talk radio or watch
cable television so much of it seems bedeviled by shouting matches and
ideological food fights.
I think that one of the reasons for that is not that we have
too much debate about fundamental moral questions and questions of
values in our politics but that we have too little.
We would find our way to a better and richer democratic
deliberation, not agreement, but a better democratic life if we engaged
more directly and explicitly with the moral convictions that men and
women bring to public life.
So while the subject of the course, and of the book, and of the
series is "Justice" in another way the subject is ultimately about
democratic citizenship and my suggestion is that ours would be a richer
democratic citizenship if we had a politics that engaged more directly
with the big questions of values and mortality and justice that animate
our public life. Thank you very much.