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View Diary: The Supreme Court won't uphold Prop 8, but ... (207 comments)

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  •  But (1+ / 0-)
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    Clem Yeobright

    law constantly has to draw distinctions regarding issues that are not "black and white." What kind of searches and seizures are "unreasonable"? What kinds of punishment are "cruel and unusual"? When does a risk of bodily harm become "imminent"?

    Regarding that last one, a law professor of mine posed the following hypothetical:

    You're standing at the goal line of a football field. A person who you know hates you and wants you dead is on the opposite goal line, holding a large axe. Ze runs at you, swinging the axe menacingly and screaming "I'm going to kill you!"

    You have a loaded gun, and you're a very good shot. The law says you're allowed to use deadly force to defend yourself against a person whom you reasonably believe presents an imminent threat of grievous bodily harm to you. You intend to do so.

    Presuming that it's legal for you to shoot this person at some point before ze actually makes it to your goal line and attacks you with the axe, what yard line is ze on when you are, for the first time, allowed to shoot hir?

    Judges inevitably have to answer questions like that one—or, more precisely, they have to decide cases in which the person in question was (metaphorically) shot at the 5 yard line, or the 15, or the 40.

    Neither a judge nor an advocate for anyone involved can get anywhere by declaring that "imminent" does not admit to "a black and white definition." It doesn't—and yet the law's got to make the call somehow.

    (I'd also point out that your point, if accepted by courts, would make it impossible for anyone to successfully claim to have been discriminated against on the basis of hir sex. Do you think that would be a good development?)

    •  So who can an intersex person marry? (0+ / 0-)

      If you don't think intersex marriage is relevant to this case then why is heterosexual marriage relevant?

      The point is that no one is harmed when any two adult individuals decide to marry and create a family.

      •  Huh? (0+ / 0-)
        So who can an intersex person marry?
        That's a good question, worthy of research. (My foggy memory of researching transgender issues during law school is that there have been a few historical court decisions involving intersex people that carry the troubling implication that an intersex person isn't allowed to marry anyone. I doubt that too many modern courts would actually hold that, though.)

        In marriage-equality states, presumably an intersex person, like anyone else, can marry pretty much anyone ze would like to marry, regardless of sex. (With the usual caveats involving bigamy, consanguinity, etc.)

        In states that deny marriage to same-sex couples, I presume that the court would look to the sex that's recorded on government records (birth certificate, ID, etc.) for the intersex person—and then bar hir from marrying a("nother") member of that sex. That's not a result I'd support, but I don't see how the line-drawing issue ("What sex is this person?") is the root problem with it.

        If you don't think intersex marriage is relevant to this case then why is heterosexual marriage relevant?
        Er, because heterosexual marriage is (1) overwhelmingly common in California and every other state, (2) the main focus of marriage law, and (3) the institution that the Prop 8 proponents allege needs to be protected from assault, providing (according to them) a rational basis for states to ban same-sex marriage?

        Moreover, equal-protection and due-process arguments for marriage equality always and necessarily concentrate on heterosexual marriage. The pro-SSM legal argument is, and always has been, that gay couples deserve to be treated in the same way that married heterosexual couples are. As a result, how could heterosexual marriage possibly avoid being relevant to this case?

        The point is that no one is harmed when any two adult individuals decide to marry and create a family.
        That is indeed a point, and one I agree with strongly. But observing that "1 percent of live births exhibit some degree of sexual ambiguity" ("QED"—???) falls rather far short of proving that conclusion. Quod non erat demonstrandum.

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