Leaving Neutral Ground: Same-Sex Marriage and Moral Neutrality Under the Law

It has often been said, by those within my personal circle, "I personally believe that same-sex marriage is wrong, but I don't want to impose my morality on others. The law should be morally neutral on this issue for equality's sake." Those who hold this view apparently fail to recognize that in uttering, "the law should be morally neutral," they are advocating a moral position, the contours of which are elucidated by the statement, "the law should be neutral as between neutrality and non-neutrality"—a logical impossibility. In other words, moral neutrality under the law proposes the cleansing of all moral views from the law, save moral neutrality itself. Uttering this proposition is somewhat like singing, "I am not singing!" Its self-referential inconsistency makes the position rationally suspect. Unfortunately, the proposition's inconsistency is dwarfed by its own absurd implications. As I see it, moral neutrality entails two such absurdities: (1) it undermines the basis upon which laws are said to be just or unjust, and (2) it abolishes the notion of "equality," from the law, or, in the very least, requires a non-moral rendering of that concept. [1]

First, moral neutrality undermines the basis upon which laws are evaluated. Minimally, the Law is that body of propositions which cannot conflict with moral edicts, if there be any—a concession to any moral nihilists which may be reading. For example, if it is morally impermissible to destroy another's property, without justification or consent, the law cannot sanction such acts and remain just. Some proponents of same-sex marriage recognizing this evaluative force say, "marriage is a basic human right," implying that marriage is a malleable form admitting of varying arraignments. If true, then the law is compelled to recognize such unions, unless some overriding considerations compel otherwise [2].  

Advocates of moral neutrality would blind the Law as to right and wrong. After all, if the law draws upon standards external to it, such as "human rights," in evaluating the nature of its own decrees, whether they be just or unjust, then the law is not, strictly speaking, morally neutral. It is non-neutral whenever it applies principles of a moral force to resolve disputes. Neither human rights, non-malfeasance, nor equality can be drawn upon in resolving conflicts. Moral neutrality, in short, removes the law from the burden of objective moral principles, rewarding us with a "government of men, not of law."

Second, moral neutrality either abolishes the notion of "equality," from the law, or scrubs it of any moral significance. As implied above, equality is a concept saturated with moral force. When Jefferson gave expression to the American mind in penning, “all men are created equal, that they are endowed by their Creator with certain unalienable Rights,” he was expressing a fundamental axiom of moral significance, upon which the principles of self-governance would flow with a necessary force. From its initial baptism in that sacred Declaration of Independence, "equality," as a concept, has held preeminence in the American mind, motivating us to consistently abolish our cruder natures in the search of more fuller expressions of justice. Undoubtedly "equality," is a concept with moral force drawn upon by the courts in tailoring just decisions. Yet, moral neutrality, by definition, cannot admit moral concepts into its ecumenical construction of the law. So, "equality," either cannot be used in such a scheme, or it must be understood in a non-moral sense. It is perfect satire that in relying upon equality to motivate moral neutrality, advocates have unwittingly written "equality," out of the law. So much for, "the law should be morally neutral for equality's sake."

Speaking of satire, it is noteworthy that within my personal circle, many advocates of moral neutrality are religious, espousing a belief in eternal, unchanging moral truths. Their desire to be inclusive as to the public sphere, has caused them to exclude from that venue the most important aspect of themselves, viz., their religious standards. My suspicion is that these individuals harbor doubts when they say, "same-sex marriage is wrong." Silently conflicted, they give a "tip of the hat" to traditional marriage, while paving a way for same-sex marriage via moral neutrality.

Tragically, these individuals do a great disservice to both sides of the debate. Not only do they ask their religious communities to exclude that most import part of themselves from the public sphere, viz. their religious standards, they make it reputable to say, "I personally believe," transforming universal moral edicts into the stuff of subjective preference. To open advocates of same-sex marriage, they giveth with one hand and taketh away with the other. In one open palm they grant same-sex marriage while implying, "such an institution can only be acceptable in an environment cleansed of moral significance." In the other open palm, they grant the term "equality," which has now become an empty token, stripped of its original moral force. In giving so little, and in taking so much, moral neutralists also ask proponents of same-sex marriage to exclude an important aspect of themselves from the public sphere: viz., their moral dignity. At least the neutralists are fair. To borrow a phrase from Justice Scalia, these individuals would cheat "both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat." [3]

Both sides owe it to the other to be honest and firm in moral conviction. Only then can we subject the very best of ourselves and our ethics to open public dialogue in the hope of establishing just laws. Aside from being destructive, moral neutrality is unnecessary. If same-gender marriage is morally permissible, the law has compelling reasons to allow the practice. If, however, it is morally impermissible, the law cannot allow its practice and remain just. In short, moral neutrality unnecessarily injures both sides of this debate. We should shun it for what it is, intellectual blurred vision. For it is only by leaving neutral ground that we fully recognize both sides, providing the arena each deserves for the fair resolution of so important an issue.

____________________________________________________________________
[1] Many arguments herein rely on implicit premises. I believe such premises will be readily discerned and I have, for stylistic reasons, omitted them. Also, for sake of full disclosure, though this is not the focus of this post, the reader ought to know that the author is a defender of traditional marriage. My purposes in authoring this are to invite fellow interlocutors to leave "neutral ground," and to espouse the virtues of a bright contrast in this particular dialogue. It is my hope to instigate thoughtful and respectful discussion on such an important social issue.

[2] These issues are complex and simplification necessarily yields inaccuracy. Yet, it is important to note a fundamental difference in permitting immoral conduct, conduct which is malum in se, and failing to permit moral conduct. The former is never permissible, the latter, for countervailing reasons of sufficient force, is.

[3] Justice Scalia's dissenting opinion in United States v. Windsor