The Just Response to Marital Misrecognition

Anno LVI, n. 230, gennaio-aprile 2021

Marriage as a heteronormatively conceptualized institution has resulted in humiliating experiences for homosexual individuals. First, it unjustly denies certain rights to homosexuals. Second, it does not ascribe homosexuals to the same status as heterosexuals. The latter conveys a message of moral insignificance by discriminating against homosexuals on the basis of sexual orientation and by misrecognizing them in terms of self-respect and self-esteem.
The usual response to marriage inequality has been the introduction of same-sex marriage. However, the just response against marriage inequality requires more than making the institution narrowly more inclusive. Furthermore, the introduction of same-sex marriage takes for granted the justness of the institution of contemporary marriage without scrutiny and seeks the solution only in the partial elimination of exclusion. 
Pace, I argue that the introduction of same-sex marriage is not capable of dealing with the marriage inequality either backward-lookingly or forward-lookingly. It fails to remedy marital misrecognition retrospectively because it is not able to heal the moral wounds regarding the humiliation. It is only partially responsive to the forward-looking aspect of marital misrecognition by not excluding homosexuals. Instead, I benefit from recognition theory and transitional justice arguments to defend how we should conceptualize the just response to the marital misrecognition. I argue that the just response against the misrecognition necessitates a Janus-faced approach: re-recognizing the victim in a retrospective fashion and just societal transformation in a prospective fashion. Just societal transformation stands on congruence to he rule of law, relational capabilities and trust cultivation. My discussion on trust cultivation reveals that de-recognizing the institution of marriage is a part of the just response to marital misrecognition. This arguments provides an alternative defence for the marriage-free state thesis.