Justice_ What's the Right Thing to Do_ - Michael Sandel [123]
Of course, those who reject same-sex marriage on the grounds that it sanctions sin and dishonors the true meaning of marriage aren’t bashful about the fact that they’re making a moral or religious claim. But those who defend a right to same-sex marriage often try to rest their claim on neutral grounds, and to avoid passing judgment on the moral meaning of marriage. The attempt to find a nonjudgmental case for same-sex marriage draws heavily on the ideas of nondiscrimination and freedom of choice. But these ideas cannot by themselves justify a right to same-sex marriage. To see why this is so, consider the thoughtful and nuanced opinion written by Margaret Marshall, chief justice of the Massachusetts Supreme Court, in the court’s ruling in Goodridge v. Dept. of Public Health (2003), the same-sex marriage case.28
Marshall begins by recognizing the deep moral and religious disagreement the subject provokes, and implies that the court will not take sides in this dispute:
Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. “Our obligation is to define the liberty of all, not to mandate our own moral code.”29
As if to avoid entering into the moral and religious controversy over homosexuality, Marshall describes the moral issue before the court in liberal terms—as a matter of autonomy and freedom of choice. The exclusion of same-sex couples from marriage is incompatible with “respect for individual autonomy and equality under law,” she writes.30 The liberty of “choosing whether and whom to marry would be hollow” if the state could “foreclose an individual from freely choosing the person with whom to share an exclusive commitment.”31 The issue, Marshall maintains, is not the moral worth of the choice, but the right of the individual to make it—that is, the right of the plaintiffs “to marry their chosen partner.”32
But autonomy and freedom of choice are insufficient to justify a right to same-sex marriage. If government were truly neutral on the moral worth of all voluntary intimate relationships, then the state would have no grounds for limiting marriage to two persons; consensual polygamous partnerships would also qualify. In fact, if the state really wanted to be neutral, and respect whatever choices individuals wished to make, it would have to adopt Michael Kinsley’s proposal and get out of the business of conferring recognition on any marriages.
The real issue in the gay marriage debate is not freedom of choice but whether same-sex unions are worthy of honor and recognition by the community—whether they fulfill the purpose of the social institution of marriage. In Aristotle’s terms, the issue is the just distribution of offices and honors. It’s a matter of social recognition.
Notwithstanding its emphasis on freedom of choice, the Massachusetts court made clear that it did not intend to open the way to polygamous marriage. It didn’t question the notion that government may confer social recognition on some intimate associations rather than others. Nor did the court call for the abolition, or disestablishment, of marriage.
To the contrary, Justice Marshall’s opinion offers a paean to marriage as “one of our community’s most rewarding and cherished institutions.”33 It argues that eliminating state-sanctioned marriage “would dismantle a vital organizing principle of our society.”34
Rather than abolish state-sanctioned