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Property as a Legitimating Right

By Duncan Hosie. Full Text.

Recent decisions from the Roberts Court have strengthened property rights, and progressive commentators and jurists have reacted with alarm. In light of these constitutional developments, this Essay revisits the landmark 2003 case of Goodridge v. Department of Public Health, which made Massachusetts the first state to recognize a right to same-sex marriage. While many legal scholars and advocates portray property rights arguments as vehicles for conservative legal change, this Essay illustrates their ideological versatility through a close examination of the Goodridge litigation.

The Essay argues that the Goodridge litigators made a strategic choice to focus on property through all stages of litigation, a choice that enabled them to legitimize novel rights claims and demonstrate the tangible harms to same-sex couples from marriage exclusion. This Essay contributes to scholarship on Goodridge by highlighting an overlooked element of the litigators’ savvy advocacy. It also reflects on the contemporary implications of this framework as the Roberts Court expands property rights. The Goodridge litigation history suggests creative reliance on traditional legal doctrines can open judges to unfamiliar perspectives and validate novel legal arguments. In the Anglo-American legal tradition, arguments based on property rights are especially potent, and liberals and conservatives alike can capitalize on them.