Document Type
Article
Publication Date
2008
Abstract
On May 15, 2008, the California Supreme Court in In re Marriage Cases struck down California‘s conjugal marriage and domestic partnership statutory scheme. On October 10, 2008 the high court of Connecticut struck down that state‘s conjugal marriage and civil union scheme. California and Connecticut thus joined Massachusetts and became the second and third states, respectively, to create the institution of same-sex marriage and to remove marriage between one man and one woman (conjugal marriage) 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 or substantially all of the rights and responsibilities of marriage, call this premise into question. And the search for a morally neutral foundation for same-sex marriage has turned out to be much more difficult than many scholars and jurists anticipated. Indeed, all three state high courts, which have created same-sex marriage, have done so by dismissing the states‘ considered conception of the meaning and purposes of marriage and by reading into the institution their own purposes and fundamental requirements. Despite their assertions that they were maintaining neutrality as between competing moral conceptions of marriage, all three courts committed themselves to morally partisan conceptions of marriage and on those foundations held exclusively conjugal marriage unconstitutional. The Massachusetts Supreme Judicial Court "SJC" declared without explanation that the essence of marriage is not conjugality but rather stable relationships. The California Supreme Court discerned a different essence of marriage: individual self-fulfillment. The Connecticut high court assumed without explanation that the essence of marriage is the individual interest in having a family. On the grounds of their various morally partisan conceptions of marriage, all three courts concluded that same-sex intimacy is the equivalent of conjugal marriage, an historically privileged institution, and is superior in its meaning and purposes to other, common relational arrangements, such as friendship, political affiliation, polyandry, and polygamy.
Recommended Citation
Adam J. MacLeod, The Search for Moral Neutrality in Same-Sex Marriage Decisions, 23 BYU J. Pub. L. 1 (2008).
