Sunday, September 23, 2012

The right not to marry? Ruthann Robson thinks this might lurk in the right to marry cases

I consider CUNY-Queens law professor Ruthann Robson a fellow traveller among critics of the single-minded quest for marriage equality.  I am happy to see that she has contributed to the SCOTUSBLOG online symposium on the same-sex marriage cases that the Supreme Court will be discussing tomorrow at their conference.  Once we know whether (more likely which) of the cases the Court will hear this term, the work of briefing those cases will begin.

I fear, as always, that arguments for marriage equality that idolize marriage actually create less space for families and relationships not organized around marriage.  Robson suggests an alternate possibility, that if the Court finds the right to marry fundmental then the right not to marry should also be considered fundamental.  Here is how she puts it:

For if the Court deemed the right to marry fundamental, then the concomitant right – the right not to marry – should likewise be fundamental. Revived proposals to condition poverty assistance on marital status, as well as tax benefits and burdens based on marital status, would require strict judicial scrutiny. While “marriage equality” advocates have often quelled the objections of more nonconformist LGBT activists with assurances that same-sex marriage will not mandate marriage, a judicial commitment to strictly scrutinize government laws channeling people into marriage might make the choice whether or not to marry less legally over-determined.

I find myself skeptical.  I think Robson may have underestimated the extent to which marriage equality supporters want everyone -- including gay people -- channeled into marriage.  But how great if it turns out just the way she says!

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