As I was discussing with DEM the other day, I think Obama is a pretty well-read jurisprude, and that he’s actually trying to test a few theories in real time.
Rawls, Habermas and Hayek all wrote extensively on the limits to tolerance and ‘reasonable disagreement’. All three considered what we all must agree on in order to survive in a democratic polity, what we can ‘agree to disagree’ on, and what is simply intractable. The latter, of course, is the hard bit — the bit that draws blood at the polls and divides the country — especially in the US where an imperial judiciary has power roughly equivalent to that of the House of Lords before passage of the 1911 Parliament Act.
Much of their scholarship focusses on respect and civility, and for Habermas in particular incivility will place interlocutors outside the magic conversation circle. Hayek — ever the empiricist and pragmatist — is a fan of putting (polite) gays and (polite) anti-gays (say) in a room with wine and canapes and making both groups’ ability to treat with those in high places contingent on hammering out a compromise.
Scholars like Cass Sunstein and Richard Thaler have picked this up, arguing (among other things) for a privatisation of marriage. You can still get a batch of boiler-plate default rules from the state if you want them, and you can get those terms whether you’re gay or straight. But you can’t make the local Mormon Church start celebrating gay marriages, either — and you can’t force people to call you ‘married’ (but you’ll have the relevant legal chops to make your bonding work).
That’s why Obama had both Rev Rick Warren and Bishop Gene Robinson praying at his inauguration, and why there’s been something of a dust-up because HBO somehow managed to ‘lose’ Robinson’s contribution (fortunately, the Daily Show has stepped into the breach). If Hayek and Habermas are right, both men will still disagree with each other, but it will now be much harder for them to be uncivil, and much easier for them to negotiate.
Their respective supporters, however, may have to endure a fair degree of confusion, as this cartoon illustrates: