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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 would like the diarist to tell me how... (0+ / 0-)

    ...I should argue that I have the right to marry my wife.

    2. It's NOT actual gender discrimination:  Same-sex marriage prohibitions treat both genders equally.  Now that leads to some to retort with the Loving v. Virginia (1967) analogy (one I agree with respect to the Due Process analysis of that case) where Virginia's defense that both blacks and whites were treated equally didn't hold water.  This is inapposite and misplaced.  The point there was that such laws were intended to discriminate agains blacks and promote white supremacy.  What gender supremacy are same-sex marriage prohibitions intended to promote?  The answer is none.  There is no intent to discriminate against any gender, no disparate impact on any particular gender, and no gender that becomes inferior because of such laws.  

    Like Richard Loving, I am a white man married to a black woman.

    If I should need to argue that I have a right to marry my wife, should I argue that white men have historically been discriminated against, and that anti-miscegination laws were intended to discriminate against white men? (I'm not sure, especially given the hstory of white men's access to black women during slavery, that I really want to go there. I don't see how bringing up that history actually helps my case.)

    Or alternatively, should I argue that I have an immutable attraction (or orientation) towards black women? (If so, I sure hope that the opposing side doesn't find out that my ex is white!)

    What's my arguement?

    Did Richard Loving gain the right to marry Mildred Jeter in Loving v Virginia, or did he not? And if so, under what theory?

    If I am prevented from marrying my wife simply because I am white, is that or is that not an example of racial discrimination against me, as a citizen of this country?

    "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 07:06:49 AM PDT

    •  Because, a restriction prohibiting your marriage (1+ / 0-)
      Recommended by:

      is not unconstitutional because a black man can do what you, a white man, can not do.  Because in a complete technical sense, the races are being treated equally.  The reason that the law is unconstitutional is because its purpose is to promote racial purity and the supremacy of the white race.  That is why the law is a discriminatory one.  And why it is unconstitutional.  

      •  So I don't have the right to marry my wife? (0+ / 0-)

        And Richard Loving didn't really win the right to marry his wife?

        I was hoping that you would have better news than that.

        "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 09:44:22 AM PDT

        [ Parent ]

      •  The problem with that (0+ / 0-)

        is that it is also promoting black racial purity. The only reason white supremacy wins out over black supremacy is because whites were already in the better position when the law was made. The marriage law itself doesn't really favor one race over another.

        •  I might as well add (0+ / 0-)

          that historically the same man+woman marriage laws did heavily favor men. Women used to lose all their rights when they got married and be completely under the control of their husbands. Surely it was gender discrimination back then since you wouldn't have that problem with two men or two women marrying.

          I'm sure some even exploit this fact to argue that current laws still discriminate against women.

          •  Meh (1+ / 0-)
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            Those laws are gone for the most part.  Also, those laws that restrict the rights of married women are gender discrimination.  

            Restricting marriage to those of opposite genders is not intended to discriminate against women.  

            •  Why not? (0+ / 0-)

              Men are the physically stronger sex. Surely there is an argument (not necessarily one that will work) that only allowing women to marry men keeps them in a submissive spousal role.

              I don't get how you can so that it's clearly not gender discrimination while also saying the laws of the 60s were clearly racial discrimination. You're basically just stating that current laws don't favor men whereas older laws favored whites, all without explaining how these are so.

      •  The Argument is that a state law prohibiting (0+ / 0-)

        marriage between a Man and a Woman of different races deprives both people of their civil liberties, and the couple sues the state. The state shows how its law furthers its interests. There are no such complaints against any state in, say, 1789.  A pre-18thC-ehrenfeucht would have a difficult time showing injury: miscegenation laws weren't meant to hurt his feelings. They existed to further the interests of the state.

        Compare that to a pre-18thC-ehrenfeucht showing injury when he sues his state government because they don't have a miscegenation law. Such lax standards would put ehrenfeucht at a disadvantage with neighboring states: his property's value would be reduced, as no one would want to live here; his reputation could suffer from rumor and innuendo; he might not even be allowed in other states, because of his association with this one.

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