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and to the norms that underlie the assertions that people at the time are
willing to make. We must be attentive both to the institutions that lie
behind toleration itself, particularly those that guarantee autonomy for dif-
ferent groups, and to the institutions that sustain the trust between groups
and attempt to build more trust. Everyday interactions are still the best
means of doing so, but not any everyday interaction will do; remember
that blacks and whites in the segregated South interacted more than they
did in the North at the time. The virtues of democracies and free markets
in a society in which toleration is well established are that they provide
arenas for such interactions, but formal cross-community groups are
important too, especially when the impetus for these groups comes from
the communities themselves. To be successful, interactions between groups
must engage people in the common tasks of building communities,
however small, and thereby demonstrate a common commitment to a
purpose that all can see as valuable. Only then can differing groups begin
to think of each other as valued members of the same community and as
people who should be accepted within that community either despite, or
because of, those differences. Only then is a lasting toleration possible.
6 Of homosexuals
Trust and the practices of public
reason
In the last chapter, I argued for a view of the balance between trust and
toleration that was tuned closely but not too closely to particular con-
texts. To determine what the implications of such a view are for us,
however, we need to apply a similar kind of analysis to a contemporary
controversy. When we do so, we will not be allowed to use one of the
tools that was available in examining the historical cases: we can no longer
separate what we take to be true from what people at the time thought
and what they had reason to believe to be true. For us, the best reason to
which we have access will be the same as the best reason that can be
accepted at the time. So we will be forced to consider more concretely
what the effects of our views about trust and toleration will be.
In focusing on a contemporary example, we can understand the kinds
of practices we need to build the trust that is needed to sustain toleration
in a society in which toleration is largely accepted. Most importantly, I
will argue, we need practices of public reason that enjoin people to make
use of only certain kinds of reasons when they are making arguments in
the public sphere for the purposes of proposing public laws.
The limits of toleration: Homosexual marriages
Today, various religious groups are widely tolerated. Even if an avowed
atheist cannot in fact become President of the United States, religious opin-
ions of every persuasion can exist unmolested by law. Only Satanists and
racist churches elicit the kind of revulsion experienced by the Socinians in
the 1690s, but even they are tolerated as long as their opinions do not lead
to action against others. So the context of contemporary America is quite
different from that of France in 1572 or that of England in 1690: tolera-
tion for religion is widely accepted, and differences in views of the good
life are not usually viewed as a threat to society.
One of the groups that many do see as a threat is homosexuals (Wolfe
2000). Even in the wake of the September 11 bombings, Muslims as a
group still do not suffer the kind of public execrations that homosexuals
endure. Until the 2003 Supreme Court decision Lawrence v. Texas, their
Trust and practices of public reason 121
most intimate behavior was criminalized, and it was used as the basis for
depriving them of their rights as parents and even as employees. Yet even
the majority in Lawrence v. Texas explicitly did not conclude that homo-
sexuals should have the right to be married or to have any form of recog-
nition for their status. Even as middle-class Americans are willing to
embrace differences enough to tolerate non-Western religions, most still
condemn homosexuality and see it as a basis for a difference in their legal
status (Wolfe 2000). A large majority, for example, still think they should
not be allowed to marry (Seelye and Elder 2003). Of course, by the stand-
ards of the 1690s, even homosexuals are widely tolerated. None face
public execution for their behavior, as anti-Trinitarians did,1 although
many face real physical threats as the horrendous death of Matthew
Shepard in 1998 made all too clear.2 The arguments against extending full
civil-rights protection to homosexuals, then, are arguments about to what
degree homosexuals should be tolerated. If my analysis is correct, that
question must be answered by determining the degree to which gays and
lesbians can be trusted, and that question is one about the extent to which
open homosexuality represents a genuine threat to the moral fabric of our
society. Not surprisingly, the arguments against gay rights focus on just
this point. And if my analysis is correct, assessing this argument is essential
for evaluating the normative question for our society in its context.
To focus the discussion, I will examine the arguments against same-sex
marriage. Some might wonder whether this issue concerns toleration at all,
since it concerns an issue of a public privilege that many homosexuals
themselves want to reject (Ettelbrick 1989; Browning 1996). Yet marriage
is a civil rights issue. Arguably, it is one of the most important civil rights,
as Hannah Arendt argues with respect to civil rights for Blacks:
The right to marry whoever one wishes is an elementary human right
compared to which the right to attend an integrated school, the right
to sit where one pleases on a bus, the right to go into any hotel or
recreation area or place of amusement, regardless of one s skin or
color or race are minor indeed. Even political rights, like the right to
vote, and nearly all other rights enumerated in the Constitution, are
secondary to the inalienable human rights to life, liberty, and the
pursuit of happiness proclaimed in the Declaration of Independence;
and to this category the right to home and marriage unquestionably
belongs.
(Arendt 1959: 236)
Being able to marry whom one wants, Arendt suggests, is no trivial matter;
it goes to the heart of the ability to live a life of one s own choosing and
the ability to have any kind of happiness worth pursuing. Indeed, even
those homosexuals who reject marriage as an institution think that they
ought to have the right to do so; they just think that fighting for such a
122 Trust and practices of public reason
right would be a distraction from more important issues (Ettelbrick 1989;
Browning 1996).
For reasons like these, many people see the arguments against homo-
sexual marriage simply as a manifestation of intolerance. Yet proponents
show a lack of respect for their opponents if they do not explain why their
opponents arguments fail, if in fact they do. Those arguments cannot
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