Open Negotiation: the Case of Same-Sex Marriage

WP-LPF 1/15

This paper analyzes a very harsh case that is widely debated nowadays, namely the legal attempt to extend the right to marry to same-sex couples. This case is theoretically interesting, as it shows that even when there is a stable and shared agreement on a specific human right as it happens for the right to marry, still many public conflicts may arise with regard to the implementation of such right. The case of same-sex marriage involves a public conflict over the meaning of a specific concept, as “marriage”, that has been determined long time ago and that is now undergoing a process of re-conceptualization. A set of members of the society is against this process; some others believe that modifying this social standard, in order to make it more inclusive, is the only way for respecting the liberal ideal of equal respect for persons. I analyze the same-sex marriage case from two perspectives. (1) I expose different legal arguments that, following the “fundamental right” strategy, show that law should enforce rights, such as the right to same-sex marriage, whose enjoyment grants equal treatment before the law for every citizen. (2) I stress that it is also important to dwell on political arguments in favor of the extension to the right to marry to same-sex couples. These arguments acknowledge the fundamental role played by the symbolic aspects in the political deliberation over the same-sex marriage debate. In fact, same-sex couples’ request challenges the traditional view about family and their claim happens to be seen as running afoul of the morality of the majority. The main conclusion that I want to stress is that, in order to mitigate the public conflict around the same-sex case marriage, it is fundamental to booster a public deliberative procedure that involves a “concept negotiation” in which different alternatives are depicted and evaluated assessing their adherence to the normative evaluative standards that constitute the core values of liberal democratic societies. I will argue in favor of the practice of open negotiation, showing that both political institutions and the legal system can play a fundamental role in publicly recognizing the normative reasons that underpin the requests of extending the right to marry to same-sex couples. Provided that political institutions respect some nor-
mative constraints, it is possible to articulate an open negotiation between citizens and institutions in which even unreasonable citizens are included in the political processes; granting therefore a multilogical dialogue among citizens (horizontal relation) and among all citizens and institutions (vertical relation).