SLIPPERY SLOPERY: Mark Tardiff replies to Gabriel Rosenberg

I begin with a correction. Contrary to what Gabriel Rosenberg wrote, I did not ask "why the laws could not similarly change to make marital status obsolete," which would be self-contradictory apart from an abolition of marriage. I asked why the binary requirement could not similarly become arbitrary, seeing that the gender difference requirement supposedly became arbitrary in the last thirty years.

The reasoning about a hypothetical "group marriage" case misses the significance of the principle set out by the court in Goodridge. As Justice Spina (dissenting) pointed out, the Massachusetts marriage statues do not discriminate on the basis of gender nor on the basis of sexual orientation precisely because "constitutional protections are extended to individuals, not couples" and the same conditions apply to all persons regardless of gender or sexual orientation. The response of Justice Marshall, (writing for the majority) to this difficulty is to interpret the right to marry as a right to marry absolutely anyone one chooses, a "right" that the court affirms as granting it the authority to change the definition of marriage. The court gives no principled reason why a future court could not change the definition of marriage still further. Basically "the binary nature of marriage, the consanguinity provisions" (as Justice Marshall refers to them) remain because they have not yet been challenged.

I return to the hypothetical case of a man marrying two women. Each of the women could appeal to a "right" to marry the same man. The man, for his part, would not ask the court to treat the two women as an individual but to recognize that the right to marry would be hollow (to use Justice Marshall's phrase) if it did not include the right to marry the persons of one's choice. The argument could be strengthened by having the three persons involved be Moslems and appeal also to their right to freely exercise their religion. The idea may seem strange, but no less than the idea of SSM was even 15 years ago. All the tactics of the pro SSM movement are there for the imitation: presentation of ideal cases that evoke sympathy, appeal to rights language, perhaps even the invention of a pejorative term ("binarism"?) in order to stigmatize the views of opponents as the expression of mere prejudice.
posted by Eve at 12:13 PM | link

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