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

Mark Tardiff: I do not see how civil marriage could have been considered a social construct before the philosophy of law disputes that occupied much of last century with discussions about the nature of law, its relation to morality and to natural law.

Mark B.: I think civil marriage can reasonably be called a social construct by virtue of the fact that every last feature of it, including its very existence, is at the discretion of a sovereign legislature consisting of people who represent society. Mark possibly has a quite different definition of social construct in mind, but I don't think it's profitable to spend time forging a consensus, because I suggest the considerations about sovereignty already settle the legal issue: there is no logical connection between civil marriage and any supposed natural marriage beyond the intent of the legislature to have one approximate the other.

Mark Tardiff: However, I still hold that the Massachusetts court overstepped its authority in its ruling. Specifically, as the dissenting justices point out, the court violated article 30 of the Massachusetts Declaration of Rights.

Mark B.: They certainly invite that conclusion in the opening paragraph of the dissenting opinion on page 43. But this is just a rhetorical gambit to get the reader in the mood to cheer the conclusion they're working towards when they get around to presenting it. The dissenters clearly accept that the judicial powers referred to in Article XXX include the power to strike down unconstitutional laws, because they spend two whole sections dismissing various arguments that the marriage law is indeed unconstitutional. The majority did strike down the opposite-sex aspect of marriage as unconstitutional, they are the final arbiters in the matter, and this is in no way contrary to Article XXX.

Mark Tardiff: If so, then my civil rights are what the state says they are, and there are no grounds for charges of injustice.

Mark B.: No, your civil rights are what the state and federal constitutions say they are (subject to interpretation by the courts). In all other respects the legislature, being sovereign, is free to screw you over if it thinks it can get away with it at the ballot box. Mind you, I recognize additional moral rights beyond civil rights, and I wouldn't hesitate to invoke them in attempting to persuade legislators to vote in a particular manner, but I don't kid myself that they're legally enforceable.

Mark Tardiff: If not, then on what basis do civil rights remain tied to something beyond legislative enactments while civil marriage does not?

Mark B.: A number of civil rights are specified in detail in the Massachusetts constitution, whereas no feature of civil marriage is. On the contrary, Article V gives free reign to the governor and council until such time as the legislature determines differently.
posted by Eve at 2:25 PM VOTE

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