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Alasdair MacIntyre, Michael Sandel and other critics have argued that liberalism is living off the borrowed capital of Western civilization. That is, to the extent that liberalism requires neutrality among theories of the good, the state cannot ensure that the generation of values - of strong families, hard workers, honest people, engaged citizens, and devout church members - necessary to liberalism itself will occur. William Galston responded to this critique by arguing that liberalism does not require neutrality toward the creation of values central to liberalism itself. A liberal democratic state should be able to foster liberal virtues, and, indeed, liberal states have historically done so through the regulation of sexual morality, family stability and educational quantity and content.

The issue then arises how a liberal state promotes such values in the absence of consensus not just on the values themselves, but on the institutions necessary to inculcate them. With respect to education today, for example, the United States permits its citizens to choose between public and an array of private institutions, including home schooling. On issues such as traffic regulation, however, the state must elect a single choice; it cannot have its drivers choose on an individual basis between the right or the left side of the road. Historically, the idea of autonomy with respect to the creation of family form would have been considered an oxymoron. The traditional family of biological mother, father and child was often treated as prior to the state, if not foundational to society itself. Nor has the state been neutral among the possible forms of marriage. When the Supreme Court confronted the issue of polygamy as an expression of Mormon religious practice in the Utah territories during the nineteenth century, it had no trouble declaring the organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world. The basis for these decisions, for the denial of autonomy with respect to the choice of institutions, and not just individual behavior, bears revisiting. What if, on questions basic to the organization of family, no consensus exists? What if different demographic and economic circumstances create different family traditions among different states? What if fundamentally different values in different parts of the country produce polarization rather than agreement on the family values appropriate for a liberal democracy?

This paper will address these issues by, first, examining the debate about the regulation of morality and distinguishing the control of individual behavior from the selection of basic institutions. Second, it will examine the polarization now taking place on the definition of family values among the states and argue that these differences reflect different challenges produced by the nature of the interaction among marriage, childbearing and the adult life cycle. Third, it will maintain that these differences, while the product of different approaches to family institutions consistent with historic efforts at secular family regulation, interact with religious as well as secular beliefs. Finally, the paper will consider what some measure of autonomy and respect for others might entail in a system in which different states adopt fundamentally different approaches toward the definition and regulation of family values.

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George Washington University Legal Studies Research Paper No. 225; George Washington University Law School Public Law Research Paper No. 225

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