MARRIAGE AND EQUAL PROTECTION: David Barnes replies to Gabriel Rosenberg

Gabriel Rosenberg rebuts Mary Catelli when she writes, "'[Jim Henley] simply assumes that we can limit the recognition to sexual relationships.' In fact, nowhere in his post does he state this. A man and a woman cannot be denied a marriage license simply because they refuse to engage in sex."

I think the point is that for any marriage law to pass an equal protection test it may also need to give the "legal benefits" of marriage to cohabitating couples and people living together in a non-sexual relationship. These classes can be expanded depending on what role you think childrearing plays in obtaining marital benefits.

In other words, if homosexual couples are being unjustly denied the benefits of marriage, why aren't cohabiters raising children being unfairly denied benefits just because they don't want to get married? For that matter, why aren't cohabiters without children being unfairly denied benefits for the same reasons? To take the matter further, why aren't roommates being unfairly denied benefits just because they aren’t having sex? If the force of equal protection arguments comes from the denial of benefits to a suspect class, then how do you limit that class?

The fact that cohabiters can get married if they so choose does not seem to fix this problem. They may have the formal freedom to marry but so do homosexuals. In both cases, a person would be forced to enter into a marriage that he'd rather not enter into only to get legal benefits he'd otherwise be denied if he were not married.
posted by Eve at 4:30 PM | link

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