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

If by "social construct" Mark Barton means "legislatively enacted" then of course civil marriage is a social construct. But that does not answer the philosophical question I raised. The penal system is also a social construct in Mark's sense, but: Is murder wrong because the legislature outlaws it? Or does the legislature outlaw it because it is wrong? Returning to our topic: Has civil marriage been the union of man and woman because the legislature defined it so? Or has the legislature so defined it because marriage is the union of man and woman? The generation that signed the Declaration of Independence and ratified our Constitution would affirm the second view. I deny that the Massachusetts court had the authority to shift to the first view, so I deny that there is a constitutional question, hence I hold that the court violated Article 30.

This exchange gives me a couple of additional reasons to support the Federal Marriage Amendment. If the traditional common law definition of civil marriage does not have the authority of civil rights guarantees because it is not explicitly mentioned in the constitution, then the FMA will remedy the situation. If civil rights are what the constitution says they are, and the FMA becomes part of the constitution, then no civil rights are violated. An appeal to moral rights could be answered by saying that there is no logical connection between moral rights and civil rights beyond the intent of the legislature to have one approximate the other.

A second reason has to do with my civil rights. The Massachusetts court ruled that the traditional common law definition is rooted in prejudice. If that is so, then all opponents of SSM are bigots and their arguments are nothing but hate speech. Given the actions of the MSCJ, I cannot be sure that no justices in the future will rule that free speech does not include hate speech. It seems to me that I have to support the FMA while I still have the freedom to do so. The problem is inherent to a court imposing SSM. A legislature, were it to enact SSM, could do so without passing any judgment on the motivation of the prior laws.
posted by Eve at 8:24 PM | link

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