Legal Reasoning: Justifying Tolerance in the U.S. Supreme Court
The concept of tolerance is central to liberal political and moral traditions, yet it raises a number of challenging questions. Is tolerance unlimited? When is it required? If acts or beliefs are morally wrong, why tolerate them at all? If they are not morally wrong, is tolerance still necessary? Indeed, the paradox of “tolerating the intolerable” has attracted significant attention in liberal political and moral writings. Several lines of justifications have been offered in the attempt to resolve the paradox of tolerance. John Locke and John Stuart Mill justified tolerance primarily on utilitarian grounds, while contemporary justifications center on notions of personal autonomy and pluralism. This Article tracks a shift within the liberal tradition from utility-based to autonomy- and pluralism-based justifications for tolerance. It further attempts to locate a similar shift in legal argumentation for tolerance, as offered by liberal Justices of the U.S. Supreme Court in the context of homosexuality, and to demonstrate that the transformation of tolerance that had occurred in general liberal discourse trickled into liberal adjudication.
The purpose of this Article is to illuminate a link between the law and political and philosophical discourse through the lens of the Supreme Court Justices’ treatments of homosexuality. As the shift in grounds for justifying tolerance has occurred within the liberal tradition, it is only natural to look for an equivalent shift in the opinions of Justices falling within that same tradition. The main interest of the Article lies in the reasoning, the underlying assumptions, and the implicit moral views of the Justices writing these opinions, and not always in the legal outcomes of the cases. Consequently, the Article examines cases that mention homosexuality even if homosexuality, as such, is not their main issue.
