SLIPPERY SLOPERY: Gabriel Rosenberg replies to Mark Tardiff

I am constantly reading about how the Goodridge decision has opened the gate to polygamy. How? The plaintiffs in Goodridge took the position that the state could not use sex as a factor in granting marriage licenses. They were supported in this by the state constitution.

This does not translate at all to polygamy. A plaintiff wishing to get married while already being married would be taking the position that the state could not use marital status in granting marriage licenses. Not only is there nothing in the state constitution to support this, but it's silly. How can one argue the government should not recognize marital status, but then ask to have a marriage recognized? Marriage has legal consequences and one of those consequences is that you cannot marry another without the first marriage ending through death or divorce.

Does the state have legitimate reasons for this consequence? Well, I can think of four right off the bat: It promotes stability in marriage. It makes it possible to determine next-of-kin. It prevents an unlimited financial burden on the state and private entities (who would otherwise, for example, be required to provide health insurance for unlimited spouses). It
helps to prevent fraudulent marriages.

Mark Tardiff is worried that because the court ruled that the gender difference requirement is arbitrary, everything is arbitrary. After all, the gender difference aspect of marriage was required across all cultures for thousands of years. Yet the court did not rule that the requirement has always been arbitrary. When there were legal differences between husband
and wife, and between man and woman, there would be natural reasons for requiring gender difference in marriage. Those legal differences, though, have disappeared over the past thirty years. The laws predicated on the binary nature of marriage, or the difference between married and single, have not disappeared.

If anything, Goodridge hurt polygamists' case. If marriage were only about procreation there would be no reason to deny a second marriage license. A man can procreate with two women. It's the other aspects of marriage that provide the reason to limit each person to at most one spouse at a time.
posted by Eve at 3:42 AM | link

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