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View Diary: "Traditional Marriage" is gender discrimination (27 comments)

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  •  it's a strong legal argument, (2+ / 0-)
    Recommended by:
    sberel, David Kroning

    analogous to the Supreme Court's reasoning in Loving v Virginia, which struck down racial miscegenation laws. In fact, this argument (and the analogy to Loving) is what the Hawaii Supreme Court based its decision on in Baehr v. Lewin, which was subsequently overturned by Constitutional amendment.

    I'm not sure why subsequent same-sex marriage court decisions haven't used the same analysis.

    The day Bush was elected: Dow Jones avg 10,979; unemployment 3.9%; 5.5 million jobless... Today: Dow Jones avg 7,850; unemployment 7.6%; 11.6 million jobless.

    by Yirmiyahu on Sat Feb 14, 2009 at 10:41:00 AM PST

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    •  I agree with your agreement. (4+ / 0-)
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      sberel, Ran3dy, David Kroning, Anubis Bard

      As a matter of fact, "traditional" marriage is PURELY gender discrimination. No couple is refused a marriage licence because of their sexual orientation. Nobody asks them if they fancy men or women. All they require is that they be of opposite genders. A clear discrimination on the basis of gender.

      Gender neutral marriage. NOW.

      by Montreal Progressive on Sat Feb 14, 2009 at 10:50:21 AM PST

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    •  I think CA Supreme Court did (1+ / 0-)
      Recommended by:
      sberel

      I believe the CA Supreme Court ruled that traditional marriage doesn't constitute gender discrimination.

      •  CA court ruled on... (1+ / 0-)
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        sberel

        the basis that discrimination based on sexual orientation violates Equal Protection, and made sexual orientation a suspect classification. It wasn't based on sex discrimination, per se.

        The day Bush was elected: Dow Jones avg 10,979; unemployment 3.9%; 5.5 million jobless... Today: Dow Jones avg 7,850; unemployment 7.6%; 11.6 million jobless.

        by Yirmiyahu on Sat Feb 14, 2009 at 10:59:27 AM PST

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    •  It's total BS as a legal argument. (0+ / 0-)

      Don't get me wrong - IMHO legalizing same-sex marriage is the right thing to do, and such laws supporting/institutionalizing it would be amply within the constitutional powers of states to implement, and the federal government to support through the "full faith and credit" clause.  Perhaps the Loving v Virginia reasoning (based on regarding marriage as a "fundamental right") could eventually be extended to same-sex marriage by US Supreme Court decision, though as a practical matter such a development is extremely unlikely within the next decade or two, given the current makeup of the court.

      However, the "gender discrimination" argument is pure BS as any sort of viable legal theory.  Anti-gay marriage legislation doesn't discriminate against either gender - male or female.  It affects gay members of both genders equally.  You're simply not going to get any federal courts to come remotely close to favorably entertaining the legal theory that failure to recognize gay marriage is "gender discrimination" anytime remotely soon, if ever.

      Also, the emotional fervor for a particular hoped-for legal change does NOT thereby validate every brainstorm of a potential legal theory that can be concocted to try to support the result.

      Equal protection of a fundamental right (what Loving was based on) has a much better chance of being extended to support gay marriage (at least in federal courts) than the "gender discrimination" theory does.  I wouldn't put too much hope in the feds following a decision by the Hawaii SCt.

      •  Perhaps someone who's intersex should sue??? (1+ / 0-)
        Recommended by:
        gilgaiiowa

        Anti-gay marriage legislation doesn't discriminate against either gender - male or female.  It affects gay members of both genders equally.  You're simply not going to get any federal courts to come remotely close to favorably entertaining the legal theory that failure to recognize gay marriage is "gender discrimination" anytime remotely soon, if ever.

        Ideally someone who has a clearly-defined genital and/or genetic intersex condition, was assigned one sex at birth, identifies with the opposite sex, and is attracted to his or her assigned sex.

        Remember Duanna Johnson. Tortured by the Memphis PD for being black and trans. Killed by the Memphis PD for speaking up.

        by Marja E on Sat Feb 14, 2009 at 01:00:45 PM PST

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      •  Understand the issue before calling it BS, please (1+ / 0-)
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        Marja E

        The issue here is not "gay marriage", as you are wont to quote.  The issue very much IS gender discrimination.  Your thinking and reasoning is still based upon the definition of marriage, and we, as a movement, need to get beyond that frame.

        I'm not saying that the law as it stands discriminates against females more than males, or vice versa; framing the debate in that way is to create a straw person argument.

        The basic, and operational, fact is that a person applying for a legally recognized license is treated differently whether that person is male or female.  Period.  Two people walk into the office with exactly the same form, requesting a "license" t marry the same individual.  One will walk out with a license, the other will have been rejected, based on no other factor than that person's gender.
        It can't get more basic than that.

        Just this guy, you know?

        by Ran3dy on Sat Feb 14, 2009 at 02:01:59 PM PST

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