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No, it is not unconstitutional gender discrimination because it is not actually gender discrimination.  Instead, Proposition 8 is unconstitutional under the Fourteenth Amendment as impermissible discrimination on the basis of sexual orientation.  

Fooled you there didn't I?  :)  

(You might have thought I was a troll if you just read the headline or if you knew me, might have thought that I had a psychotic break or something)  

The California Supreme Court will hold a hearing next week to determine a question raised in Perry v. Schwarzenegger and that is whether the proponents of Prop 8 have standing under state law to appeal Judge Vaughn Walker's 2010 decision holding Prop 8 unconstitutional.  Although the California Court will not address the merits of the case, it's worth discussing the merits of the Prop 8 case should the 9th Circuit or the Supreme Court decide to hear the merits.  And it's also worth discussing because even if Prop 8 dies without the Supreme Court rendering a decision on the merits, the issue will come up again.  In Perry, the plaintiffs have raised the argument that Prop 8 is unconstitutional as impermissible gender discrimination.  

Since there are many who are proponents of this argument, I wanted to take the time to point out why I do not like this argument and hope that, if heard on the merits, Prop 8 is not struck down on this ground.  

The argument that same-sex marriage prohibitions are gender discrimination (and therefore unconstitutional) is a popular argument that's been around for a long time in both legal and political circles.  It's been raised in just about every suit challenging a same-sex marriage prohibition (except maybe for Dean v. District of Columbia (D.C. 1995)).  

The gist of the argument is that same-sex marriage prohibitions discriminate on the basis of gender because the laws prohibit a man from doing something a woman may do (marry a man) and prohibit a woman from doing something a man may do (marry a woman).  

If some of you are wondering why this argument is used, it's because gender discrimination under the U.S. Constitution requires intermediate scrutiny.  For the non-lawyers: basically that means the government has the burden of proving the legislation is valid and that burden is extremely high.  At a state level, this argument hits home because many state constitutions have their own Equal Rights Amendments (ERAs).  

To be sure, this argument is not a silly throwaway, it's embraced by many prominent lawyers and activists including William Eskridge Jr., who is one of the greatest gay legal minds in the country (and a personal hero to me).  

I hate it.

And I hate it for both legal and social reasons.  Here's why:

1.  It never works:  Some will argue that my hope in sexual orientation receiving suspect classification is misplaced and that I need to be pragmatic.  Some will argue that the gender discrimination argument will be the only way to strike down same-sex marriage prohibitions.  But that's not right.  Granted the Hawaii Supreme Court bought the argument to a degree.  But their decision in Baehr v. Lewin (Haw. 1993) did not lead to a single same-sex marriage in Hawaii.  Instead, the Hawaii Supreme Court was able to dump the case off on a lower court.  That lower court did hold the law was unconstitutional but then stayed the decision so that the state would have time to amend its constitution, which it did.  

Now I've seen bloggers write that if the Supreme Court upholds Prop 8, that will be motivation to finally enact a federal ERA to ensure same-sex marriage rights.  That's not right either.  State court after state court in states with ERA's in their constitution have upheld same-sex marriage laws by saying they do NOT discriminate on the basis of gender.  What I think is most telling is that the California and Connecticut Constitutions both have ERA's in their state constitution yet neither was used.  In fact, much the to chagrin of some activists, the California Supreme Court, in In Re Marriage Cases (Cal. 2008) (which was one of the most pro LGBT opinions in legal history) held that our same-sex marriage prohibitions could not properly be considered gender discrimination.  

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.  

3.  It hides the true discriminatory issue and attempts to win on a technicality:  It's pretty much undisputed that same-sex marriages discriminate on the basis of sexual orientation (even courts that have upheld the laws as constitutional have agreed on that).  But instead of addressing the true issues and the true harms and the true evils of same-sex marriage prohibitions, the gender discrimination argument attempts to hide.  Essentially, what this argument says is that discrimination on the basis of sexual orientation is a-okay but same-sex marriage should be allowed on a technicality of gender dicrimination.  

4.  It diminishes and trivializes the reasons why same-sex couples want the right to marry:  The gender discrimination argument posits that people may want to marry for purely economic and companionship reasons.  Such an argument dimishes and trivializes those gay and lesbian couples in long-term, committed, relationships who want to share a life together and want the dignity of a marriage license and the attendant benefits.  And such an argument diminishes and trivializes the millions of young gay men and women who simply want to have the same rights and opportunities available to them as their straight peers.  

By making these arguments, same-sex marriage gets trivialized into a tool of folks who simply want to marry those of the same gender in order to either 1) benefit themselves, 2) test the limits of society, or 3) piss off their parents and experiment.  When my sister lived in Boston, she had every opportunity to go down to the courthouse and marry another woman.  She didn't do that though because she is straight.  

5.  It perpetuates negative, demeaning, and above all completely inaccurate stereptypes about gays and lesbians:  My brother had this horrible friend in college, who once admitted to me that she had hooked up with at least 12 women (in addition to the 500 plus men).  She of course opposed same-sex marriage and equal rights though she claimed to understand the needs "for sexual release and experimentation."  She explained that with gay men, she had some sort of understanding because she couldn't understand how a man couldn't get hard for her (she reasoned "there must be something wrong with him"......).  But with women, she reasoned, lesbians attempting to enter into long term relationships were just those who couldn't find a man.  I use this extreme example to prove the following point:

With the gender discrimination argument, the myth is perpetuated that lesbian couples are just those women who are too ugly or too old to get a man to date them or marry them.  Thus these ugly, nasty, women must resort to marriages to those of the same gender, not out of true love, but out of a need to get together because no man would want them.  Then there's the myth that gay men are those with extreme mental, psychological, and emotional disturbances.  Basically, a man who wants to marry another man is one who has sexual problem with women.  When we use the gender discrimination argument, we further these negative stereotypes.  It perpetuates these stereotypes because it suggests, not that these stereotypes are wrong, but in fact they might even be right.  It diminishes gays and lesbians, who we are as individuals, and our relationships.  

For these reasons, I continue to oppose the gender discrimination argument on the issue of same-sex marriage.  And I remain hopeful that when same-sex marriage prohibitions are eventually held to be unconstitutional (whether Prop 8 or a different one), they will be held unconstitutional for the right reasons.  

Crossposted at http://socalliberal.wordpress.com/...

Originally posted to SoCalLiberal on Fri Sep 02, 2011 at 07:53 PM PDT.

Also republished by LGBT Kos Community.

Poll

Proposition 8 is unconstitutional because it is

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Comment Preferences

  •  It's both. (nt) (5+ / 0-)
    Recommended by:
    SoCalLiberal, bythesea, G2geek, skrekk, neroden

    "If I can't dance, then I don't want to be in your revolution"--Emma Goldman

    by ehrenfeucht games on Fri Sep 02, 2011 at 08:01:44 PM PDT

  •  They did? (3+ / 0-)
    Recommended by:
    SoCalLiberal, bythesea, neroden
    In Perry, the plaintiffs have raised the argument that Prop 8 is unconstitutional as impermissible gender discrimination.

    Even if they did, I don't think Judge Walker's ruling used that argument, right?

    •  He did not (2+ / 0-)
      Recommended by:
      skrekk, cooper888

      He entertained the concept, didn't outright reject it but ignored the argument.  It wasn't initially raised by the Perry plaintiffs when they first filed their case but eventually they did raise it.  It's possible that if the case were heard again on the merits, this argument would come back up.  

      R.I.P. Charles Manatt (1936-2011).

      by SoCalLiberal on Fri Sep 02, 2011 at 08:14:30 PM PDT

      [ Parent ]

  •  Some of these arguements are so silly that... (1+ / 0-)
    Recommended by:
    neroden

    ...I don't even know how to respond.

    I mean, where does stuff like this even come from?

    What's the connection?

    4.  It diminishes and trivializes the reasons why same-sex couples want the right to marry:  The gender discrimination argument posits that people may want to marry for purely economic and companionship reasons.

    "If I can't dance, then I don't want to be in your revolution"--Emma Goldman

    by ehrenfeucht games on Fri Sep 02, 2011 at 08:14:59 PM PDT

    •  Gotta agree with you here (2+ / 0-)
      Recommended by:
      neroden, ehrenfeucht games

      I was left scratching my head when I read that.  I don't see why the gender discrimination argument posits that people may want to marry for purely economic reasons.  You could say the same thing about the equal protection argument with which the diarist agrees.

      If there's some relationship here, the diarist has yet to explain it.

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

      by FogCityJohn on Fri Sep 02, 2011 at 11:22:05 PM PDT

      [ Parent ]

    •  Diminish and trivialize (0+ / 0-)

      Gender protection grants two adults of like gender the access to federal marriage legislation which neither may attain singly;

      but if it  purposefully [is silent on] [Disguises] [Counterfeits] the cherished sexual and emotional bonds which make this marriage a necessity, then

      these actions do conspire to diminish and trivialize the need  to declare that love between men and love between women exists.

  •  Lots of people DO marry for completely economic.. (4+ / 0-)
    Recommended by:
    SoCalLiberal, Othniel, skrekk, tmo

    Reasons or companionship reasons.  And you know what?  I'm OK with that.

    Marriage is also a social contract that quite a few enter into in order to preserve assets and pass them on.

    And I don't want the government to ever get into the business of debating whether or not you (or anyone else) truly "Loves" the other person.  

    We're not in the judging whether or not love is real or not.   That doesn't matter.

    I think of this in relation to a friend - who suffers from a serious physical disability, could never be sexually active, is super brilliant, wealthy.. and keeps no "friends" gay or straight on the basis because of it.

    But he has a lot of good friends who play cards with him.   If he wanted to "marry" any of them as a means to pass on his assets or to give them end of life decision making capabilities over him, then I'm OK with that.

    I don't want the government judging any of that crap, and I definitely don't want them deciding if love is present or not

    Ghandi's Seven Sins: Wealth without work; Pleasure without conscience; Knowledge without character; Commerce without morality; Science without humility; Worship without sacrifice; Politics without principle

    by Chris Reeves on Fri Sep 02, 2011 at 08:37:34 PM PDT

    •  You know I do agree with you to an extent (1+ / 0-)
      Recommended by:
      tmservo433

      The government has no business in the marriages of others and choosing who should marry whom.  But when it comes to this issue, I don't like the argument because it minimizes gays and lesbians who seek to marry for reasons of love (not monetary advantage).  

      •  I get it (0+ / 0-)

        I understand.  And it's a hard road to follow.

        I admit, just as someone on the outside, I think the whole system is pretty well fucked on the marriage front.  

        But I don't want anyone judged for how 'pure' their love is for a potential partner.   Because then we put anyone in an impossible position of how do we ever judge that standard

        Ghandi's Seven Sins: Wealth without work; Pleasure without conscience; Knowledge without character; Commerce without morality; Science without humility; Worship without sacrifice; Politics without principle

        by Chris Reeves on Fri Sep 02, 2011 at 09:05:57 PM PDT

        [ Parent ]

      •  How exactly does arguing that not alowing... (0+ / 0-)

        ...somebody to marry (because they are the wrong gender!) constitutes gender discrimination minimize gays and lesbians (and bisexuals, for that matter) who seek to marry for reasons of love?

        But when it comes to this issue, I don't like the argument because it minimizes gays and lesbians who seek to marry for reasons of love (not monetary advantage).  

        You have said nothing here to explain the (IMNSHO, rather bizarre) connection that you are making in the diary between gender and love.

        "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 08:20:09 AM PDT

        [ Parent ]

      •  Marrying for reasons of love (0+ / 0-)

        The  reasons for restricting certain people from marrying: no close blood relatives; minimum age requirements; present marital or civil union/domestic partnership status; and same-gender marriage.

        Which of these will stick around forever? Just a gut feeling, but I think the relationships that will forever be restricted will be blood and age; and the reasons for restricting them are primarily sexual: procreation or child abuse (which could certainly result in pregnancy).

        Arguing gender discrimination, do you think polygyny and/or polygamy could be legalized?

        .         *.          .           .         *.          

        Thanks for throwing this topic out here.  One of my favorites.

  •  first of all it doesn't matter WHY two people... (2+ / 0-)
    Recommended by:
    tmservo433, skrekk

    .... choose to marry.

    Instead of a sexuality-driven romance, the deep common bond may be that one of them is an astrophysicist and the other is a mathematician and they are in love with each others' minds.

    Or it may be so they can snuggle up together like any other species of mammal.

    Or it may be so they can have a family with dogs and cats instead of kids.  

    Or that they have some other deep and abiding interest, or even a shallow but long-term interest.

    It doesn't matter.

    The bonds may be sexual, emotional, intellectual, artistic, philosophical, spiritual, or any combination of these.

    The state has no right to rule upon the value of your ties to another person, or to rank-order people by some hierarchy of value like that.

    The most fundamental right of privacy is the right to the privacy of your own body and mind, including your emotions and your thoughts.  

    All that should be required is that two individuals intend to have a long-term relationship with mutual commitment, shared household, and shared economics.  

    After that, the full set of rights and responsibilities should follow.  

  •  Obviously its not gender discrimination (1+ / 0-)
    Recommended by:
    SoCalLiberal

    Lawyers have to try everything, but this is fairly contrived.

    •  I agree (1+ / 0-)
      Recommended by:
      Justanothernyer

      So I don't fault Olson and Boies for raising it in this case.  If I were them, I'd raise it too.  

    •  I think it obviously is gender discrimination, (4+ / 0-)

      based on the relative gender of one's spouse, just as the anti-miscegenation laws discriminated based on the relative race of one's spouse.   That's the direct impact.   The indirect impact is discrimination based on sexual orientation, even though no state marital law inquires as to one's orientation.

      It also ties back to the notion of predetermined gender roles in society, where homosexuality violates that predetermined gender role.   Should government be in the business of enforcing gender roles?

      •  I re-read Loving and now think (3+ / 0-)
        Recommended by:
        skrekk, neroden, ehrenfeucht games

        this is a stronger argument than I did before.  I still think that this is unlikely to be a winner.

        •  "As interchangeble as trains" (Perez v Sharp) (1+ / 0-)
          Recommended by:
          skrekk

          You might also want to read Pace v Alabama (1883), which was overturned by Loving.

          Pace v Alabama (Wikipedia)

          Pace v Alabama (Text of decision)

          Aparently (IANAL), the arguement actually has a name, the Equal Application Claim.

          Here's a couple of exerpts from an article by Peggy Pascoe.

          Why the Ugly Rhetoric Against Gay Marriage Is Familiar to this Historian of Miscegenation
          .

          But it soon became apparent that Reconstruction would not survive long enough to become a turning point in the history of miscegenation law. As Reconstruction collapsed in the late 1870s, legislators, policymakers, and, above all, judges began to marshal the arguments they needed to justify the reinstatement--and subsequent expansion--of miscegenation law.
          The fifth, and final, argument judges would use to justify miscegenation law was undoubtedly the most important; it used these claims that interracial marriage was unnatural and immoral to find a way around the Fourteenth Amendment's guarantee of "equal protection under the laws." How did judges do this? They insisted that because miscegenation laws punished both the black and white partners to an interracial marriage, they affected blacks and whites "equally." This argument, which is usually called the equal application claim, was hammered out in state supreme courts in the late 1870s, endorsed by the United States Supreme Court in 1882, and would be repeated by judges for the next 85 years.
          In 1948, the Supreme Court of California took a giant step toward ending the regime of miscegenation law when it broke an sixty-five year string of post-Reconstruction judicial precedents and declared California's miscegenation law unconstitutional. Speaking for a deeply divided court, Justice Roger Traynor flatly rejected the shopworn claim that miscegenation laws applied "equally" to all races. "A member of any of these races," Traynor explained, "may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable." "Human beings," he continued, "are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains." "The right to marry," Traynor insisted, "is the right of individuals, not of racial groups." Nineteen years later, in 1967, in the case of Loving v. Virginia, the United States Supreme Court agreed, this time in a unanimous decision written by Chief Justice Earl Warren. "There can be no doubt," Warren wrote, "that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause."

          In addition to reading the decision in Loving v Virginis, you can also listen to the opening arguements being made, since the audio of the opening arguements are posted online at Oyez:

          Loving v Virginia Opening Arguements (Audio)

          I have compiled some quotes (with timestamps to make them easier to find on the audio) that seem to me as a non-lawyer to be partcularly relevant to the Equal Application Claim are here:

          Timestamp: 1:11:50 - 1:12:30

          "If the statute equally forbad the white race to marry the colored race, and the colored race to marry the white race, then in the opinion of the framers, that was not a violation of equal protection or due process. In other words, the classification itself was not a violation."


          Timestamp: 1:13:00 - 1:13:40

          "Now under this, the language which they used in saying that it had no relation, that it had no effect in the state's power over marriage, they also said provided no discrimination is made by it. It is clear, under the legislative history of the 14th Amendment, that if a statute had forbad white people from marrying colored people, and then had a different penalty for violation of that statute, that even the framers of the 14th Amendment would have thought that that would have been unconstitutional, and that the 14th Amendment was specifically designed to <unintelligible> that difference in penalty problem."

          Timestamp: 1:17:09 - 1:17:24

          "But, it is clear that the framers understood, that in their intention, a law that equally forbad the members of one race from marrying the members of another race, with the same penal sanction on both, did treat the individuals of both races equally."  

          "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 05:27:02 AM PDT

          [ Parent ]

          •  As a side note, SCOTUS accepted at face value (1+ / 0-)
            Recommended by:
            SoCalLiberal

            Virginia's claim that it had a rational basis for its anti-miscegenation law......that is, to prevent mixed-race offspring.   If that case were heard today I doubt the arguments or analysis would be the same - more likely it would be a challenge to the rational basis claim in the same way that many of the same-sex marriage cases are today.

    •  Not contrived at all, it obviously is (1+ / 0-)
      Recommended by:
      ehrenfeucht games

      gender discrimination.

      It takes a non-sexist perspective to spot it, I suppose.  Any bi person will tell you outright that it's gender discrimination, it's frankly obvious that it is.

      Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

      by neroden on Sat Sep 03, 2011 at 01:35:50 AM PDT

      [ Parent ]

      •  In fact, it is so obvious on its face, that... (0+ / 0-)

        ...I can't see how anybody could not recognize it.

        Any bi person will tell you outright that it's gender discrimination, it's frankly obvious that it is.

        If the state prevents you from marrying because of your gender (or prevents me from marrying because of my race), how can anybody say that it is not gender discrimination (or in my case, race discrimination).

        I just don't get how anybody can say it with a straight face. It doesn't even pass the laugh test.

        "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 07:21:45 AM PDT

        [ Parent ]

  •  You're wrong, it is sex discrimination. (2+ / 0-)
    Recommended by:
    FogCityJohn, ehrenfeucht games

    It's kind of funny that anyone is still denying that.  Sexism runs strong, I guess.

    Perhaps you'd see it more clearly if you were bi.  :-)

    In fact, I'm fairly sure the only reason gay rights have advanced as far as they have is that people are no longer as sexist as they were.  The gender discrimination argument is the one which resonates with children today.  Don't underestimate it.

    Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

    by neroden on Sat Sep 03, 2011 at 01:34:10 AM PDT

  •  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 ]

  •  Here's my take. (0+ / 0-)

    I agree with #1, but that's not a reason to not try it. It's also not technically true. The Massachusetts decision was 4-3, and one of the judges in the majority actually wrote his own opinion saying he thought the law was unconstitutional on gender discrimination grounds. So without the gender discrimination argument it is very possible that Massachusetts would never have won equality (through the court anyway). I also find it surprising that you would specifically bring up In re Marriage Cases since I don't think the court would have made such a wholehearted rejection of the gender discrimination argument if it wasn't about to make a sweeping declaration that sexual orientation was a suspect class.

    I understand #2, but I'm never quite sold on it. Yes, I know that anti-miscegenation laws were intended to favor whites, but really the only way they could have possibly done that is through the sole fact that whites were already in a better position than blacks. The marriages laws, themselves, however, didn't favor whites. Blacks could have been the better-off race at the time and the same exact laws would have been construed as discriminating against whites. If a state legislature were to admit it was trying to favor men over women (with some BS about forcing women to be wives submissive to husbands or something) with its current law, would that suddenly change the outlook of this?

    #3 is misleading and kind of contradicts #1. It's not trying to win on a technicality. It's just laying all your options on the table in the off chance that it works (and it sometimes can; again, look at Massachusetts). These days you will never see someone try the gender discrimination argument without also trying sexual orientation discrimination.

    #4 is just wrong. Other commentators have pointed out that there really is no connection. On top of that, the law doesn't care one iota what the reason for marrying is. Complete strangers can get married, just as a loving couple who has been together for decades can.

    #5 I just can't see any connection here either. There is no way "bans on same-sex marriage discriminate on the basis of sex" is at all the same as "lesbian couples are just those women who are too ugly or too old to get a man to date them or marry them". It's a huge stretch for you to even suggest this one.

    •  Yeah but they did (0+ / 0-)
      I also find it surprising that you would specifically bring up In re Marriage Cases since I don't think the court would have made such a wholehearted rejection of the gender discrimination argument if it wasn't about to make a sweeping declaration that sexual orientation was a suspect class.

      It's not such a sweeping declaration when you really think about it.  Yes, it was revolutionary of the Court to do it but they were not going off on a limb when they did it.  Really, if you follow precedents, sexual orientation should almost certainly be a suspect classification.  Like many things the California Supreme Court has done over the years, when they have reached their conclusion, it's revolutionary but then makes complete perfect sense.  

      •  Suspect classes aren't a dime a dozen. (0+ / 0-)

        Defining a new one is a sweeping declaration by any definition. Furthermore, the California Supreme Court is the only court in this country which has found sexual orientation to be worthy of strict scrutiny (which is more than gender gets in federal courts).

  •  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:
      DCDemocrat

      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-)
            Recommended by:
            DCDemocrat

            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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