The Search for Moral Neutrality in Same-Sex Marriage Decisions

Adam MacLeod, Faulkner University

Abstract

In recent months, the California Supreme Court struck down the state’s conjugal marriage and domestic partnership statutory scheme, and the Connecticut high court struck down Connecticut's conjugal marriage and civil union scheme, making California and Connecticut the second and third states, respectively, to create the institution of same-sex marriage and to remove marriage between one man and one woman from its privileged place in state law. It is instructive to examine a central premise underlying this project to redefine marriage, namely that the issue can be resolved on morally-neutral grounds of equality or autonomy. Rejections by high courts in Massachusetts, California, and Connecticut of civil unions and domestic partnerships, which provide to same-sex couples all of the rights and responsibilities of marriage, call this premise into question.

The failure of the Massachusetts, California, and Connecticut courts to justify removal of the conjugality requirement on morally-neutral grounds suggests a reason why the debate over the state same-sex marriage decisions has stalled. Treating the marriage decisions as exercises in moral neutrality renders productive discussion of the merits of the decisions impossible for the simple reason that the decisions are not, in fact, morally neutral. Further debate must focus upon the competing claims about the relative moral value of conjugal monogamy and same-sex intimacy.

In the interim, there remain two rational bases for upholding conjugal marriage laws against judicial challenges. The first rational basis is the morally partisan claim that conjugal marriage has intrinsic value, and is thus in itself a basic reason for human choice and action. A morally neutral rational basis derives from the self-evident observation that different relational arrangements display different characteristics and produce different social benefits. The capacity to distinguish in law between relational arrangements that are self-evidently distinguishable in relevant ways is itself a rational basis for conjugal marriage laws.