IS MARRIAGE A RIGHT? Mark Barton replies to Mark Tardiff

[Tardiff is in bold, Barton in plain text.]

Mark Tardiff: First, the parallel to free speech does not hold. Free speech is explicitly guaranteed by the Constitution; SSM is not. The only way to reach SSM is through interpretation.

Mark B.: Certainly arriving at SSM involved interpretation, but not about the issue of whether there was a violation of an explicit guarantee in the Massachusetts constitution. Matters couldn't be clearer: plaintiffs were denied marriage licenses because of their sex. The only question requiring some interpretation is the same as in a typical free speech case: whether there was some sufficiently weighty reason to justify the court allowing an exception from the plain reading. For example, the US Supreme Court has ruled that speech is not protected if the government can meet a "clear and present danger" test. In the same way, the Supreme
Judicial Court would have allowed the prima facie sex discrimination if the government had met a "strict judicial scrutiny" test. However in
fact it found that the government did not meet even the laxer "rational basis" test.

Mark Tardiff: As Eve and others have pointed out, this amendment was passed with the assurance to voters that it would NOT lead to SSM. So in this case, at least, it seems to me that the voters did not surrender their authority; they were defrauded of it.

Mark B.: It depends on what the exact form of the assurances was, which is not clear from the remarks and citations by Eve that I've been able to find, e.g., here. The text of the
amendment is straightforward. The voters could hardly fail to be aware that they were renouncing authority in fairly comprehensive terms and that exceptions would be at the discretion of the Supreme Judicial Court. So if the assurance was that the ERA would not necessarily lead to SSM, or in other words, that there was no slippery slope, then they were not misled. Indeed the Goodridge decision observes early on that the state needed to give a rationale for banning SSM that withstood a "strict judicial scrutiny" test. While this is a demanding standard, it's by no means impossible in principle to meet. And if gay and lesbian people had been as psychologically and socially dysfunctional as it was widely
assumed in 1976 that they were, it should have been easy to meet.

Mark Tardiff: Third, the justices' decision depends less on law than it does on philosophy. Specifically, they had to assume the radical feminists' intention that gender is a social construct, one that we can rearrange as we like. Apart from this unmentioned and unsupported philosophical assumption, the ruling makes no sense.

Mark B.: I see nowhere in the ruling where where they rely on any assumption about gender as a social construct. The key issue on which they adopt the philosophy of the pro-SSM side against the objections of the anti-SSM side is the question of whether (civil) marriage is primarily an institution to protect kids (which happens to involve two parents), or primarily a recognition of commitment between two people (that happens to be good for kids to some extent). And as they explain,
they come down on the pro-SSM side because the actual features of the marriage laws don't support the idea that the state was the slightest bit serious about the three rationales that it invokes.
posted by Eve at 2:20 AM VOTE

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