L’estensione del diritto di matrimonio alle coppie omosessuali: un argomento normativo

In this paper I intend to analyze a very harsh case that is widely debated nowadays, namely the legal attempt to extend the right to marry to same-sex couples. The case of same-sex marriage involves a public discussion with regard to 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, while some others believe that modifying the concept, in order to make it more inclusive, is the only way for fulfilling the liberal ideal of equal respect for persons. I discuss different arguments – both legal and political - in favor of the right to marry for the same-sex couples. On the one hand, I articulate 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. On the other hand, I stress that even though the legal review strategy is extremely important, legal arguments do not exhaust the whole discussion over same-sex marriage, as it is also important to dwell on the political arguments – regarding what political institutions ought to do – that point out how extending the right to marriage to same-sex couples is the only correct way for granting them the full enjoyment of the status of equal citizens. These arguments acknowledge the fundamental role played by the symbolic aspects in the political deliberation over the same-sex marriage debate. Indeed, same-sex couples’ request challenges the traditional view on family and in the case that their claim were accepted as valid, then the public meaning of marriage will drastically be modified, running afoul of the majority’s morality. The main conclusion that I want to stress is that, in order to mitigate the public conflict around the same-sex marriage case, it is fundamental to boost 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 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, I do believe that it is possible to develop an open negotiation public practice in which reasons of justice – as well as more pragmatic ones - are exposed within a multilogical dialogue among citizens (horizontal relation) and among all citizens and institutions (vertical relation).