Professor Alicia R. Ouellette (Albany) has posted to ssrn her article, “Moral Reasoning in Judicial Decisions on Same-Sex Marriage.” Here is a portion of the abstract:
Even judges who claim to bracket morality do not remain morally neutral toward homosexual relationships when they justify the grant of marriage rights. Instead, they make the case that same-sex relationships are normatively valuable for the very reasons that heterosexual marriages are normatively valuable. It is only the judges who take the middle ground – condemning discriminatory laws without granting the affirmative right to marriage itself – who come close to achieving moral neutrality toward homosexuality and same-sex relationships in their opinions.
The full paper is available here.