Open Negotiation: The Case of Same-sex Marriage

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 normative 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).