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  •  Gender classification (18+ / 0-)

    It's interesting to see Kennedy 'wresting' with the question of whether or not homosexual discrimiantion is gender discrimination.  

    I have long felt that it is.  If I want to marry a man, the government must first ask me "what is your gender?" and depending on the answer to that question I am treated differently under the law.  

    We have clearly established law and standards of scrutiny which apply to gender discrimination.  

    •  I perked up at that as well. (5+ / 0-)

      Perhaps he thinks that, if intermediate scrutiny really did apply here, that his hand would be forced?  But Judge Walker laid out, iirc, a pretty exquisite explanation for why Prop 8 flunked even rationality review, so that seems like an unusual way out to be looking for.  Intermediate scrutiny is pretty nebulously defined, really, so I'm not sure that the difference between it and rationality review would carry the day here.

      Then again, I'm no expert at this, and there are so many issues being presented at once here that the outcome could be surprising.

      "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

      by auron renouille on Tue Mar 26, 2013 at 12:55:54 PM PDT

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    •  Hadn't thought of that argument (4+ / 0-)

      ...but I like it.

      America, we can do better than this...

      by Randomfactor on Tue Mar 26, 2013 at 01:01:31 PM PDT

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    •  That's exactly what he was doing (3+ / 0-)

      I've been arguing for over a decade that intermediate scrutiny applied.  This is not the case to decide that.  Tomorrow's is.

      My hope is that this case will be disposed of as having been settled in light of such an outcome in Windsor.

      Plaintiffs' Employment Law Attorney (harassment, discrimination, retaliation, whistleblowing, wage & hour, &c.) in North Orange County, CA.

      "I love this goddamn country, and we're going to take it back."
      -- Saul Alinsky

      by Seneca Doane on Tue Mar 26, 2013 at 02:06:40 PM PDT

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    •  That argument (1+ / 0-)
      Recommended by:
      Clem Yeobright

      has most famously been forwarded by law professor Andrew Koppelman--for example, here.

      To my understanding (and I haven't dug very deep into the exchanges between academics), the most common rebuttal to the argument is that bans on same-sex marriage aren't really particularly about the sex (or gender) of either one of the participants individually; instead, they're about the nature of the relationship. ...Whatever relevance that objection has.

      If Koppelman's argument sways Justice Kennedy, then hey, great. (That would certainly make Koppelman a star.) I'm skeptical that that's the outcome and rationale we're likely to see, though.

      •  Because the state has banned other forms of (1+ / 0-)
        Recommended by:
        koNko

        marriage based on the nature of the relationship. You can't marry your sibling, for example, even though the marriage may be otherwise legal. A man can't enter into a bigamous marriage with two women, not because he could not marry either one of the women, but because the state has decided that the nature of the marriage relationship is two adults.

        The question is whether there is a rational basis for these types of restrictions. The threat of inbreeding is a pretty obvious rational basis for not allowing a brother and sister to marry. The ban on polygamy is a bit more wobly, IMO, as it was mostly enacted to enforce a Christian conception of marriage on Native Americans and to push Mormons out of states. And I have a feeling that within our lifetime, polygamy bans could be struck down.

        •  Indeed. (0+ / 0-)
          Because the state has banned other forms of marriage based on the nature of the relationship.
          Sure. I'm not sure whether that cuts in favor of Koppelman's argument or against it.
        •  MRob - I agree (0+ / 0-)

          The arguments favoring same sex marriage do become wobbly regarding polygamy. I have not read the transcript, or listened to all the oral argument, but was surprised this issue was not raised by any of the Justices.

          "let's talk about that"

          by VClib on Wed Mar 27, 2013 at 09:53:39 AM PDT

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          •  It was raised. And found uninteresting. (1+ / 0-)
            Recommended by:
            VClib
            JUSTICE SOTOMAYOR: Mr. Olson, the bottom
            line that you're being asked -- and -- and it is one
            that I'm interested in the answer: If you say that
            marriage is a fundamental right, what State restrictions
            could ever exist? Meaning, what State restrictions with
            respect to the number of people, with respect to -- that
            could get married -- the incest laws, the mother and
            child, assuming that they are the age -- I can -- I can
            accept that the State has probably an overbearing
            interest on -- on protecting a child until they're of
            age to marry, but what's left?

             MR. OLSON: Well, you've said -- you've said
            in the cases decided by this Court that the polygamy
            issue, multiple marriages raises questions about
            exploitation, abuse, patriarchy, issues with respect to
            taxes, inheritance, child custody, it is an entirely
            different thing. And if you -- if a State prohibits
            polygamy, it's prohibiting conduct.
             If it prohibits gay and lesbian citizens
            from getting married, it is prohibiting their exercise
            of a right based upon their status. It's selecting them
            as a class, as you described in the Romer case and as
            you described in the Lawrence case and in other cases,
            you're picking out a group of individuals to deny them
            the freedom that you've said is fundamental, important
            and vital in this society, and it has status and
            stature, as you pointed out in the VMI case.

            Too late for the simple life, too early for android love slaves - Savio

            by Clem Yeobright on Wed Mar 27, 2013 at 12:03:21 PM PDT

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