Online research in philosophy

The way in which the Supreme Court of Canada deals with politically controversial cases suggests that the Court is self-defining of its role in constitutional litigation, and more broadly in the constitutional order. Recent litigation involving same-sex marriage and the public health care system demonstrates the problem. In the context of same-sex marriage, the Court had no choice but to hear a reference from the government of Canada seeking advice, yet the Court purported to exercise a discretionary power not to answer the most important question before it: whether or not limiting marriage to opposite-sex couples infringed the Canadian Charter of Rights and Freedoms. In the context of the public health care system, the Court had a choice, and it chose to hear an appeal on the constitutionality of Quebec legislation designed to protect the public monopoly on heath care. Having elected to hear that case, however, the Court failed to reach a majority decision on the Charter question, and the failure appears to have been deliberate. Having deprecated the "passive virtues" and rejected a political questions doctrine, the Supreme Court of Canada nevertheless exercises considerable discretion in dealing with politically controversial cases. It is concerned, among other things, with preserving its political capital in the context of a constitutional order that has become increasingly dependent on its decisions.

This essay analyzes the coherency and reasonableness of legal restrictions against same-sex marriage. The population of focus is transgender individuals and their partners. Focusing on trans-marriage makes clear that the restriction of marriage to one man and one woman is misguided in that the law rests on the assumption that the categories of sex and gender comprise two disjoint, exhaustive, and unambiguous groupings. The primary argument here is not that the restrictions of same-sex marriage are harmful to certain transpersons who participate in legal marriage, although they certainly are, but rather that this legal restriction fails to meet the minimum requirements of any reasonable law. This analysis compares the current marriage restriction and its reliance on the above mentioned false belief with judgments of the Race Classification Appeal Board of Apartheid era South Africa. I employ two actual cases and the legal philosophy of Lon L. Fuller in my argument.

Oregon State University, USA, andrew.valls{at}oregonstate.edu ' + u + '@' + d + ' '//--> In this article, we draw an analogy between the regulation of market language (including official definitions of `organic', `ice cream', and `diamond') and the regulation of the social and legal label `marriage'. Many of the issues raised in the debate over same-sex marriage are less about access to material benefits than about the social and cultural meaning of `marriage'. After reviewing the issues in this debate, we present an analysis of the regulation of language in the marketplace. We discuss the considerations that shape how the state regulates language in the marketplace, if it regulates it at all. Using this framework to analyze the issue of same-sex marriage allows us to identify the costs and benefits of different proposals with regard to marriage, and allows us to distinguish issues that are often conflated. Contrary to its opponents, we argue that making marriage available to same-sex couples does not violate the meaning of `marriage' or destroy marriage, because such a change is similar to many other changes in which words and labels are extended to include new `goods'. This alters the meaning, but does not destroy it, and it does not preclude the possibility of further linguistic innovation to maintain a distinction. Contrary to proponents of same-sex marriage, however, we argue that extending marriage to same-sex couples is not cost-free. There are costs and benefits of any policy on this issue — costs and benefits related to information and status, as well as material resources. Hence, while we agree with advocates of same-sex marriage, we argue that their position involves trade-offs and costs that they sometimes fail to recognize. Key Words: gay marriage • marriage • language regulation.

This article documents a global movement to legalize same-sex marriage, and argues that it jeopardizes both public and private interests in marriage. Legalization of same-sex marriage is correlated with dilution of the social meaning and significance of marriage, and with reduced public commitment to and support for families. The transformation of marriage by inclusion of relationships with different expectations, characteristics and moral behavior styles threatens the integrity, fidelity, and monogamy the social institution of marriage, as well as children and adults who invest in and depend upon marriage. The threat to civil rights of opponents of same-sex marriage is reviewed, and intimations of some renewal of respect for conjugal marriage in some regions of the world is noted, including the 137 nations that have adopted explicit constitutional provisions protecting marriage and/or family relations. Based on a paper that was presented at the World Congress of Families in Warsaw, Poland in 2007, this article opens and closes quoting "Night" by Elie Wiezel to emphasize the need to speak up (like Moishe the Beadle) and never be silent about perceived dangers. Three appendices track the growth of legalization of same-sex marriage and unions in nations and states, and list the national and state constitutional provisions protecting conjugal marriage and families.

Some argue that same-sex marriage is not an equal rights issue because, where same-sex marriage is illegal, heterosexuals and homosexuals have the exact same right to marry—i.e., the right to marry one adult of the opposite sex. I dispute this argument by pointing out that while societies that prohibit same-sex marriage equally permit individual heterosexuals and homosexuals to marry one adult of the opposite sex, same-sex couples in such societies are denied an important right that opposite-sex couples enjoy—i.e., the right to marry. I argue that the right to marry is fundamentally, not an individual right, but a couple’s collective right, analogous to assembly rights.

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.

This Article explores how old arguments in favor of antimiscegenation laws and contemporary arguments in support of same-sex marriages rely on issues related to children to defend restrictions on who has access to the institution of marriage. In particular, the Article focuses on how concerns about children have been deployed to construct and reify essentialized and dualistic understandings of race (in the context of antimiscegenation laws) and of sex/gender (in the context of bans against same-sex marriage). In doing so, it traces the historical roots of antimiscegenation laws with a particular focus on children. The Article also discusses the ways in which states today use children-based arguments to defend the constitutionality of bans against same-sex marriage. The Article ends with a critique of recent state supreme court opinions that have upheld the constitutionality of those bans based on the contention that, for children, being raised by different-sex couples is optimal while being raised by same-sex couples is suboptimal.

When examined critically, Kant's views on sex and marriage give us the tools to defend same-sex marriage on moral grounds. The sexual objectification of one's partner can only be overcome when two people take responsibility for one another's overall well-being, and this commitment is enforced through legal coercion. Kant's views on the unnaturalness of homosexuality do not stand up to scrutiny, and he cannot (as he often tries to) restrict the purpose of sex to procreation. Kant himself rules out marriage only when the partners cannot give themselves to one another equally – that is, if there is inequality of exchange. Because same-sex marriage would be between equals and would allow homosexuals to express their desire in a morally appropriate way, it ought to be legalized.

This article argues that fears about recognizing same-sex couples destroying marriage are irrational, and that same-sex couples deserve the same recognition and protection as that afforded to opposite-sex couples. The article surveys same-sex marriage and registered partnership laws in Europe, Canada, and various states of the United States including Hawaii, Alaska, Vermont, and Massachusetts. The article was published just as Massachusetts was about to begin performing its first same-sex marriages in 2004. As such, the article provides a useful historical overview and reference for those writing about same-sex marriage in the United States and other countries.