SLIPPERY SLOPERY: Mark Tardiff replies to Gabriel Rosenberg

Did the Goodridge decision open the way for legalized polygamy? Gabriel Rosenberg says that it did not, arguing that the disappearance of legal differences between men and women during the last thirty years prepared the way for the decision, while there has not been an erosion of the legal differences between two people and an individual.

There are at least two problems with this argument. One problem is that it misses the significance of what is novel in this decision. The novelty here is that, unlike any of the cases cited by the court to show how marriage & family law has changed over the years, in Goodridge the court claims the authority to change the definition of marrige itself. If this decision stands, it will not be at all unreasonable for a future court to cite Goodridge as the basis for changing the definition of marriage to include polygamy. The polygamists will have to present themselves as the next example of "people once ignored or excluded" to whom is due "the extension of constitutional rights and protections."

The second problem is that the Goodridge decision itself is not based on the disappearance of legal differences but on the expansion of constitutional rights. The court cites Perez and Loving as examples of expanding the freedom to marry, not as consequences of the disappearance of legal differences between whites and blacks. Similarly, the court's treatment of how the legal status of married women has changed emphasizes "the extension of consitutional rights and protections" (the phrase is found at the beginning of that paragraph). The court does not state that, since men and women are equal before the law, they are interchangeable as marriage partners. The court does state that denying someone the opportunity to marry another person of the same sex is an arbitrary restriction on his freedom to marry the person of his choice. The court criticizes the marriage statutes not on the grounds that they perpetuate legal differences between men and women that were eliminated in other parts of the law, but on the grounds that they manifest prejudice towards homosexuals. Hence for a future court citing Goodridge the constitutional rights of polygamists will be the point at issue. Arguments pointing to the maintenance of legal differences between two people and an individual will be irrelevant.
posted by Eve at 8:28 AM VOTE

0 Comments:

Post a Comment

<< Home