MARRIAGE RIGHTS, JUDGING, AND GENDER: Mark Tardiff replies to Mark Barton

I am not surprised by Mark Barton's assertion that he sees "nowhere in the [Massachusetts SSM] ruling where they rely on any assumption about gender as a social construct." In my original post I stated that it is an unmentioned assumption. One of the problems in this debate is that there are unexpressed assumptions at work that each side does not even recognize as assumptions, leading to a failure even to achieve
disagreement.

A thought experiment may be the easiest way to understand my point. Let us imagine that the Goodridge case had come before justices who shared the founders' vision of reality and, as far as I can see, the vision still held by most Americans today. According to this vision, which underlies our Constitution, there is a natural law and a natural order guaranteed by the Creator. In this worldview gender is a natural reality. Men and women are different in significant ways that must be taken into account in the structure of society. The foundational place for this 'taking into account' is marriage, itself a natural institution for the union of the sexes and the propagation of the species. If Goodridge had come before judges sharing the founders' vision, the plaintiffs' case would have been dismissed without even the need for the state to justify its policies. If gender and marriage are natural realities, then SSM is not a right; it is an oxymoron.

The actual conclusion of the justices shows that they did not share this assumption.

What assumption did they use? I argued that it was the radical feminist assumption that gender is a social construct. The modern feminist and gay rights
movements both started in the 60's, developed together, and even now share many contacts. Historically it is reasonable to see a connection. Logically, it is necessary. Some conception of gender as somehow fundamentally plastic, subject in a basic way to human choices and social arrangements, must logically underlie any assertion that it is possible to marry someone of the same sex.

My contention is that the justices did not have the right to make such a fundamental change in the founders' assumptions about reality. I reject the claim that the ruling was necessary to defend against a 'tyranny of the majority' because I flatly deny that SSM is a right at all. I see this ruling as an expression of a 'tyranny of the minority' in which four justices imposed on the
people of the state an alien view of reality.
posted by Eve at 6:18 PM VOTE

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