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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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  •  You're "begging the question" with #1. (2+ / 0-)
    Recommended by:
    ehrenfeucht games, SoCalLiberal

    And I mean that in the lawyerly sense, counselor.  Saying that an argument is bad because it never works is a bit like saying a guy is unattractive because he's ugly.  That an argument has been rejected before doesn't necessarily make it a bad argument.  The equal protection argument you favor has been rejected before -- many times -- but that doesn't mean it's not right.

    "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

    by FogCityJohn on Sat Sep 03, 2011 at 01:37:00 AM PDT

    •  Yup. The Equal Application Claim was upheld in... (0+ / 0-)

      ...Pace v Alabama (1883), and held sway in courts for quite some time, only to be later overturned in Perez v Sharp (1948) and Loving v Virginia (1976).

      "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 05:37:02 AM PDT

      [ Parent ]

    •  True (1+ / 0-)
      Recommended by:
      DCDemocrat

      However, I bring that argument up first because so many of the adherents to this argument claim that this is the only palatable argument that can bring down same-sex marriage prohibitions.  I want to point out that this argument is one that is failed.  That not only is it a stupid argument that demeans the LGBT community but one that judges don't buy either.  

      •  Reguardless of whether or not judges accept it,... (1+ / 0-)
        Recommended by:
        FogCityJohn

        ...how does it demean the LGBT community?

        That not only is it a stupid argument that demeans the LGBT community but...

        "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 09:48:53 AM PDT

        [ Parent ]

        •  Could you imagine a state making a (0+ / 0-)

          No-gay-marriage law that is supported by their Constitution, and then making another constitutional law permitting the same-gender marriages of heterosexuals?

          Because I can.

          I think this is a sexual discrimination argument because gender discrimination can't show injury without homosexuals plaintiffs; heterosexuals desiring same-gender marriage would have difficulty filing a suit because they lack standing.

          The gender discrimination argument only has heft when the plaintiffs are gay. And when we compare heterosexuals who have marriage rights, to homosexuals who have none, the issue is clear. This is sexual discrimination.

          I'm not going address your question of how LBGT community is demeaned. There are plenty of ways LBGT community members are demeaned and I'm not going looking for another.

          I did try out some language  in answer to one of your posts above, re:#4, and to show how a narrowly-written law allowing same-gender marriage might cause injury go LBGT folks.

          AP

      •  I'm with ehrenfeuct games here . . . (1+ / 0-)
        Recommended by:
        ehrenfeucht games

        in that I also cannot see how it demeans the LGBT community.

        In any event, all of the arguments in favor of marriage equality have failed before, many of them more than just once or twice.  So I don't see how that's a particularly good reason to discard this one.  There may be other reasons for not wanting to advance it, but I don't think a record of failure is one of them.

        "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

        by FogCityJohn on Sat Sep 03, 2011 at 10:58:53 AM PDT

        [ Parent ]

        •  The argument I support has failed many times (2+ / 0-)
          Recommended by:
          FogCityJohn, DCDemocrat

          But it has succeeded at least 5 times in state high courts.  And it succeeded with Vaughn Walker.  Number of times gender discrimination argument has prevailed:  ZERO.  

          •  Not so. (0+ / 0-)

            It succeeded in Hawai'i.  It was later overturned by constitutional amendment.  But you could say the same thing of your equal protection argument, which succeeded here in California and then was overturned by Prop. 8.

            "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

            by FogCityJohn on Sat Sep 03, 2011 at 02:40:22 PM PDT

            [ Parent ]

          •  Sexual discrimination has the legs in this (0+ / 0-)

            argument. Compare heterosexuals, who have marriage rights, to homosexuals who have none, and the issue is crystal clear. This is sexual discrimination.

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