MARRIAGE RIGHTS, GENDER, AND JUDGING: Mark Barton replies to Mark Tardiff

Mark Tardiff: In this worldview [held by a hypothetical court of founders] gender is a natural reality.

Mark B.: Sure. But, provided one doesn't construe gender too broadly,
this is uncontroversial. In particular, no one as far as I can tell, least of all the MSJC, disputes that persons of the male gender produce small gametes called sperm whereas persons of the female gender produce large gametes called eggs, and when these are combined and allowed to gestate, a new person results. Of course, if, at the risk of being ridiculous, one construes gender to include the idea that persons of the male gender naturally undertake paid employment to support persons of the female gender that they have impregnated (or plan to impregnate), then it's not nearly so obvious.

Mark Tardiff: Men and women are different in significant ways that must be taken into account in the structure of society. The foundational place for this 'taking into account' is marriage, itself a natural institution for the union of the sexes and the propagation of the species. If Goodridge had come before judges sharing the founders' vision, the plaintiffs' case would have been dismissed without even the need for the state to justify its policies. If gender and marriage are natural realities, then SSM is not a right; it is an oxymoron.

Mark B.: First, note that this is irrelevant to the defence of the claim which was initially made and which I criticized. It's readily conceivable that marriage could be a social construct without gender also being one, so tacitly assuming the former (contra the hypothetical founders) does not amount to tacitly assuming the latter (as claimed).

Second, it's doubly irrelevant because, as the MSJC was careful to point
out, the issue they were called upon to decide concerned the specific concept "civil marriage". Subject to constitutional constraints, civil marriage is whatever the state says marriage is. (That is, as opposed to any other conception of marriage including but not limited to marriage as "natural reality".) The finding of the court was that the state had quite clearly said (through use of the traditional terms "husband" and "wife") that marriage was to be opposite-sex only, but that this did not satisfy the constitutional requirement for "equality before the law" without regard to sex.
posted by Eve at 5:08 AM | link

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