SLIPPERY SLOPERY: Mark Tardiff replies to Gabriel Rosenberg

If I understand correctly, Gabriel Rosenberg is arguing that the gender difference requirement of marriage has not always been arbitrary but has become so as a result of the legal changes of the last thirty years. If a requirement that lasted thousands of years can become arbitrary in the space of thirty years, why can't the binary nature of marriage become arbitrary in the next thirty years (or less)? The question becomes even more pointed if we realize that polygamy, unlike SSM, has widespread historical and current precedents, making the binary requirement far more open to a charge of arbitrariness.

The Goodridge decision excluded polygamy, but set out the principles for its future legalization. As I read the decision, in the name of a civil right to marry the person of one's choosing the court assumed the authority to change the definition of marriage. Note what is happening: as a matter of principle the right of the individual takes precedence over the definition of marriage. All that remains is to construct an argument for the civil right to marry persons of one's choosing and the court, by following this principle, will assume the authority to modify the definition of marriage accordingly.

The argument itself is easily constructed by adapting the pro-SSM arguments accepted by the court. Polygamous families are already raising children and so need the tangible and intangible benefits of marriage enumerated by the court. The problem of a second marriage license can be avoided by three persons presenting themselves together to request a license. When refused, they can sue, claiming that their "exclusion from the institution of marriage is incompatible with the constitutional principles of respect for individual autonomy and equality under law." Nor does the fact that the decision separated marriage from procreation hurt their cause. If marriage is about "committed intimacy" then there is no logical reason why (for example) a man could not declare his desire to commit himself to two women to the exclusion of all others. Since the court has found that the gender difference requirement, despite lasting thousands of years, is nothing more than the result of prejudice, it will be even simpler for a future court to argue that the restriction to two persons is also a result of prejudice. If Goodridge stands, the script for the next court battle further down the slope is already in hand.
posted by Eve at 5:56 PM | link

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