SLIPPERY SLOPERY: Gabriel Rosenberg replies to Bill Dillinger and Mark Tardiff

Bill Dillinger is absolutely correct to note that just because gender does not matter in some situation does not mean it does not matter in any situation. In Goodridge the court ruled only that it did not matter in the state's determination of whom one may marry. The fact that gender distinctions were no longer present in many other situations throughout the law, though, was quite relevant to this decision. At one time men and women had distinct legal rights and responsibilities in Massachusetts. Gradually this legal difference disappeared until finally in the 1970s a state constitutional amendment was passed to prohibit the denial of equal protection on the basis of sex. With no legal distinction between husband and wife there was no longer as much rationale to require that a marriage contain both. To some extent the legal advances of women played a role in making the gender requirements of marriage obsolete.

Mark Tardiff has asked whether the "binary" requirement could similarly become obsolete. This binary requirement can be rephrased as the requirement that each married person have exactly one spouse. Whereas the legal difference between man and woman has narrowed, it seems to me the legal differences between two people and an individual will remain forever.

I should emphasize here that I have been discussing only legal differences between a man and a woman. I am not saying a man is the same thing as a woman, only that they now generally have the same legal rights and responsibilities. In part this is because the law is now forbidden from using generalities in classifying based on sex. The state may not justify a legal distinction by saying "women tend to...." I believe this is a good thing, but for the purposes of the slippery slope debate it only matters that the law has indeed changed in this manner.
posted by Eve at 11:08 PM VOTE

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