Moral Reasoning in Judicial Decisions on Same-Sex Marriage

PHILOSOPHY AND SEX, p. 168, 4th ed., Prometheus Books, 2009

16 Pages Posted: 17 Jan 2008 Last revised: 25 Sep 2009

Alicia R. Ouellette

Albany Law School

Date Written: January 15, 2008

Abstract

This paper explores the relevance of the morality of homosexuality in judicial decisions written in cases challenging laws that limit marriage to heterosexual couples. That study shows that judges ruling in favor of same-sex marriage eschew moral opprobrium as a legitimate basis for legal decisionmaking in favor of a traditional liberal vision of the neutral state. By contrast, judges who support the exclusion of same sex couples from marriage unapologetically endorse the majority's preference for heterosexual procreative sex to legitimate legal barriers to marriage for same-sex couples. Despite this superficial difference, neither pro-marriage nor traditional marriage judges remain morally neutral in their decisionmaking. Even judges who claim to bracket morality do not remain morally neutral toward homosexual relationships when they justify the grant of marriage rights. Instead, they make the case that same-sex relationships are normatively valuable for the very reasons that heterosexual marriages are normatively valuable. It is only the judges who take the middle ground - condemning discriminatory laws without granting the affirmative right to marriage itself - who come close to achieving moral neutrality toward homosexuality and same-sex relationships in their opinions.

Keywords: same sex marriage, moral reasoning, Goodridge

Suggested Citation

Ouellette, Alicia R., Moral Reasoning in Judicial Decisions on Same-Sex Marriage (January 15, 2008). PHILOSOPHY AND SEX, p. 168, 4th ed., Prometheus Books, 2009. Available at SSRN: https://ssrn.com/abstract=1084932

Alicia R. Ouellette (Contact Author)

Albany Law School ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

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