CONSTITUTIONAL RESTRAINT: Matt Taylor replies to Mark Barton

Mark Barton defends the MSJC rejection of the proposed civil union statute on these grounds:

"I would agree that as a political consideration, one should not be quick to reject a solution that provides all the substantive benefits of marriage ... [but] I can't accept that 'civil union' is neutral terminology. It's been chosen very deliberately to be not only different from 'marriage, but less prestigious."

I agree that the mission of the MSJC is to evaluate the civil union proposal on legal, not political grounds. However, the relative prestige of civil union vs. marriage is itself a purely political consideration, unless there is some tangible difference between the two in law. Legally, it doesn't matter what certain legislators say about civil unions in TV interviews, campaign speeches, or even debate on the floor of the legislature, as long as no language that explicitly violates equality makes its way into the law itself. If the statute had read "we hereby relegate same-sex couples to the dishonorable, inferior status of civil union" or for that matter "the archaic, withering institution of marriage is left to opposite-sex couples" or some such, the court might have grounds to strike it down. But neutrally-worded
use of the two terms is not in itself a violation of equality.
posted by Eve at 8:26 PM | link

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