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View Diary: My take on Perry v. Scwharzenegger: Why Proposition 8 is NOT Unconstitutional Gender Discrimination (46 comments)

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  •  I re-read Loving and now think (3+ / 0-)
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    skrekk, neroden, ehrenfeucht games

    this is a stronger argument than I did before.  I still think that this is unlikely to be a winner.

    •  "As interchangeble as trains" (Perez v Sharp) (1+ / 0-)
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      You might also want to read Pace v Alabama (1883), which was overturned by Loving.

      Pace v Alabama (Wikipedia)

      Pace v Alabama (Text of decision)

      Aparently (IANAL), the arguement actually has a name, the Equal Application Claim.

      Here's a couple of exerpts from an article by Peggy Pascoe.

      Why the Ugly Rhetoric Against Gay Marriage Is Familiar to this Historian of Miscegenation

      But it soon became apparent that Reconstruction would not survive long enough to become a turning point in the history of miscegenation law. As Reconstruction collapsed in the late 1870s, legislators, policymakers, and, above all, judges began to marshal the arguments they needed to justify the reinstatement--and subsequent expansion--of miscegenation law.
      The fifth, and final, argument judges would use to justify miscegenation law was undoubtedly the most important; it used these claims that interracial marriage was unnatural and immoral to find a way around the Fourteenth Amendment's guarantee of "equal protection under the laws." How did judges do this? They insisted that because miscegenation laws punished both the black and white partners to an interracial marriage, they affected blacks and whites "equally." This argument, which is usually called the equal application claim, was hammered out in state supreme courts in the late 1870s, endorsed by the United States Supreme Court in 1882, and would be repeated by judges for the next 85 years.
      In 1948, the Supreme Court of California took a giant step toward ending the regime of miscegenation law when it broke an sixty-five year string of post-Reconstruction judicial precedents and declared California's miscegenation law unconstitutional. Speaking for a deeply divided court, Justice Roger Traynor flatly rejected the shopworn claim that miscegenation laws applied "equally" to all races. "A member of any of these races," Traynor explained, "may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable." "Human beings," he continued, "are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains." "The right to marry," Traynor insisted, "is the right of individuals, not of racial groups." Nineteen years later, in 1967, in the case of Loving v. Virginia, the United States Supreme Court agreed, this time in a unanimous decision written by Chief Justice Earl Warren. "There can be no doubt," Warren wrote, "that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause."

      In addition to reading the decision in Loving v Virginis, you can also listen to the opening arguements being made, since the audio of the opening arguements are posted online at Oyez:

      Loving v Virginia Opening Arguements (Audio)

      I have compiled some quotes (with timestamps to make them easier to find on the audio) that seem to me as a non-lawyer to be partcularly relevant to the Equal Application Claim are here:

      Timestamp: 1:11:50 - 1:12:30

      "If the statute equally forbad the white race to marry the colored race, and the colored race to marry the white race, then in the opinion of the framers, that was not a violation of equal protection or due process. In other words, the classification itself was not a violation."

      Timestamp: 1:13:00 - 1:13:40

      "Now under this, the language which they used in saying that it had no relation, that it had no effect in the state's power over marriage, they also said provided no discrimination is made by it. It is clear, under the legislative history of the 14th Amendment, that if a statute had forbad white people from marrying colored people, and then had a different penalty for violation of that statute, that even the framers of the 14th Amendment would have thought that that would have been unconstitutional, and that the 14th Amendment was specifically designed to <unintelligible> that difference in penalty problem."

      Timestamp: 1:17:09 - 1:17:24

      "But, it is clear that the framers understood, that in their intention, a law that equally forbad the members of one race from marrying the members of another race, with the same penal sanction on both, did treat the individuals of both races equally."  

      "If I can't dance, then I don't want to be in your revolution"--Emma Goldman

      by ehrenfeucht games on Sat Sep 03, 2011 at 05:27:02 AM PDT

      [ Parent ]

      •  As a side note, SCOTUS accepted at face value (1+ / 0-)
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        Virginia's claim that it had a rational basis for its anti-miscegenation law......that is, to prevent mixed-race offspring.   If that case were heard today I doubt the arguments or analysis would be the same - more likely it would be a challenge to the rational basis claim in the same way that many of the same-sex marriage cases are today.

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