Response to Martha Nussbaum's a Right to Marry

Abstract

The question of same-sex marriage concerns every morally sensitive citizen. It has been the subject of debate everywhere, especially among scholars and intellectuals. That is why, no doubt, the Brennan Center for Justice invited me to comment on Professor Martha Nussbaum’s Essay entitled ―A Right To Marry?‖ 1 Our opposing views on this hotly debated question are well known. In fact, we have debated this question several times before. 2 I will begin this discussion by emphasizing a point of agreement between Professor Nussbaum and myself before getting to our points of disagreement. Indeed, indicating that point of agreement between us might lead to a clearer discussion of the points on which we disagree. In my conclusion, I will indicate another probable point of agreement between us, one that presently lies on the political horizon. It is clear that Professor Nussbaum is dissatisfied with the present state of the institution of marriage in our secular society and its polity. I join her in that dissatisfaction. Therefore, I shall not defend the status quo ante by simply invoking stare decisis against her call for change, since I am also in favor of change. Instead, we differ over what sort of change each of us wants. Professor Nussbaum draws upon precedents that seem to be already changing the legal definition of marriage from a union of a man and woman into the union of two persons, irrespective of their sex. Conversely, I want to change or undo those very precedents that have led to a situation where what might be called ―the