SLIPPERY SLOPERY: Gabriel Rosenberg replies to Mark Tardiff

Hillary wanted to marry Julie, but the state would not allow her, because of classifications based on sex. If Hillary were a man she would have been allowed to marry Julie. The court ruled that such a classification was not necessary to achieve any legitimate purpose and thus prohibited the state from taking sex into account in granting marriage licenses. Mark Tardiff and I have been having a discussion as to whether and how a parallel to this could be used in a challenge to allow for polygamy.

I first thought the parallel would be as follows: Jacob wants to marry Rachel, but the state will not allow him to, because he is already married to Leah. Thus the state is classifying based on marital status. If Jacob were single he could marry Rachel. Mark and I have agreed that it is not surprising that marital status should be relevant throughout the laws of marriage.

Mark then proposed a loophole: Jacob would seek to be united with Rachel and Leah in one marriage. Again he would be refused, but on what basis? The state is drawing a distinction between "two people" whom it is forbidden to marry and an "individual" whom it is permissible to marry. Mark has now proposed a way around this.

Rachel and Leah both seek to marry the person of their choice, Jacob. As we have noted, though, rights attach to individuals. As an individual Rachel is asserting her right to marry Jacob. Either Jacob is single and this would be allowed, or Jacob is married and this would be forbidden. We have come full circle to the marital status classification. A person seeking a polygamous marriage must either ask the state to treat a married person as single, or to treat two people as an individual. Mark is correct that Jacob could assert his right to freely exercise his religion by marrying both Rachel and Leah, but this is a separate argument that does not parallel the Goodridge case.
posted by Eve at 11:02 PM VOTE

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