David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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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.
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