SLIPPERY SLOPERY: Mark Tardiff replies to Gabriel Rosenberg

Gabriel Rosenberg seems to minimize or even deny the novelty of the Goodridge decision by claiming that the court "construed man to be person, which is not novel at all." This formulation is not entirely accurate. It would be more precise to say that the court construed man to be neuter, in that the sex of the partner in marriage is irrelevant, something which is most definitely novel. However, the novelty I was pointing to is not in what the court did, but in what the court claimed the authority to do, namely to change the definition of marriage, something unprecedented in the entire common law tradition. A court that, in principle, has the authority to change the definition of marriage necessarily has, in principle, the authority to change it to include polygamy. Given the support already present among family law specialists for polygamy, it is not that farfetched to think that a future court will do just that.

With regard to my second concern Gabriel introduces the term "classification" but otherwise basically repeats the argument about disappearing legal differences: "The less gender and racial classifications are used throughout the law, the less relevant they become elsewhere in the law." The problem with this, as I pointed out last time, is that it is not grounded in the text of the decision itself. I have read and reread the decision, trying to follow carefully the logic of the court's argument, and I cannot find any argument that leads from gender classifications disappearing to SSM. The classification I do find the court using is a different one: sexual orientation. The claim is made that individuals are denied access to marriage "because of a single trait: skin color in Perez and Loving, sexual orientation here." In the summary paragraph before the decision is handed down, the claim is made that the department of health provided no rational basis for the present policy which, for the court, "suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual." If the decision stands, the heterosexual/homosexual classification will be eliminated. Signs are that the monogamist/polygamist classification will be the next to be challenged.
posted by Eve at 6:59 PM VOTE

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