SLIPPERY SLOPERY: Gabriel Rosenberg replies to Mark Tardiff

Mark Tardiff expressed two concerns with my explanation for how the Goodridge decision does not open the way to legalized polygamy. First, he says that I miss the novelty of the court's changing the definition of marriage.

We must consider, though, how the court changed the definition. It did so by removing gender classifications. It construed man to be
person, which is not novel at all. What classification would polygamists be asking to be removed?

The second concern with my explanation is that Goodridge was not based on disappearing legal differences, but on the expansion of constitutional rights. Goodridge was actually decided based on a long standing principle that while the state may classify, it may not do so arbitrarily. Many people opposed to this decision have wondered how a classification that has always been in marriage could suddenly be considered arbitrary. Justice
Shenk dissenting in Perez had a similar concern when the California Supreme
Court was the first court to rule racial classifications as arbitrary. He wrote:

"It is difficult to see why such laws, valid when enacted and constitutionally enforceable in this state for nearly 100 years and elsewhere for a much longer period of time, are now unconstitutional under the same Constitution and with no change in the factual situation."

What Justice Shenk failed to understand in 1948 and many fail to understand today is that there have been changes in the factual situation. The less gender and racial classifications are used throughout the law, the less relevant they become elsewhere in the law. The Goodridge decision was not based on legal equality between men and women, but because of that equality
the state was left with no reason to justify the classification. For example, when married women were forbidden from owning property or having any separate legal identity it made some sense to prohibit two women or two
men from marrying. You could not expect to allow a married couple with no legal identity or two legal identities. To understand the Goodridge decision it is essential to recognize how the legal roles of husband, wife, and spouse have evolved.
posted by Eve at 2:51 PM VOTE

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