SLIPPERY SLOPERY: Gabriel Rosenberg replies to Mark Tardiff

One reason the Goodridge suit was successful was that the laws of marriage (other than who may enter into it) had already changed to rid themselves of sex-based classifications. Mark Tardiff asks why the laws could not similarly change to make marital status obsolete. All of the laws of marriage, though, must inherently deal with marital status.

Let us examine precisely what a person denied entry into such a "group marriage" would be arguing before the court. Unlike Goodridge, where a woman was asking to be treated the same as if she were a man, this new hypothetical would ask the court to treat a group of two (or more) people as if they were an individual. The suit would fail because, as all seven justices in Massachusetts noted, "constitutional protections are extended to individuals, not couples."

Consider the following example. Ella wants to run for governor, but the state refuses to allow her on the ballot because she is a woman. She sues on equal protection grounds. The state argues that "governor" is by definition a male (a female would be "governess"). The state points out that the governor has always been a man and there are numerous statutes like "he shall be elected..." The court rules for Ella and changes the definition of governor to be gender neutral. Sometime later Ben and Jerry seek to run for governor jointly as one candidate. Like Ella they are refused and sue to gain ballot access. Did the Ella decision lead us on a slippery slope to co-governors?
posted by Eve at 5:42 PM | link

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