Towards the beginning of this month, Jack Balkin outlined five theories the high court of New York State could use, if they legalize same-sex marriage. Here’s the first theory Jack mentions:
(1) Sex equality. It violates sex equality to tell a man he cannot marry another man when a woman could do so. It violates sex equality to tell a woman she cannot marry another woman when a man could do so. The ban on same-sex marriage makes an illegal distinction on the basis of the sex of the parties.
The advantage of this argument is that it does not call into question any state restrictions on marriage other than the sex of the partners, so it raises no constitutional problems about whether the state must now allow incest or polygamy. It is also premised on a category of state discrimination (sex discrimination) that is already well established as unconstitutional, so there is no need to create a new category of suspect classification or recognize a new fundamental right. The disadvantage of the argument is that it uses sex equality doctrine to uphold what most people would say is really discrimination on the basis of sexual orientation.
On Galios – which is, bar none, the blog with the best analysis of same-sex marriage issues – Gabriel disagreed (emphasis added by Amp):
The fact is all sexual orientation discrimination is inherently a matter of sex discrimination because one cannot define sexual orientation without reference to one’s sex. Suppose you know a person is attracted to women or in a sexual relationship with a woman. You cannot possibly decide whether to classify that person as homosexual or heterosexual unless you also know whether the person is male or female. All sexual orientation discrimination concerns deviation from one’s traditional gender roles. A man is traditionally supposed to form an intimate relationship with a woman but instead does so with a man. A woman is traditionally supposed to form an intimate relationship with a man but instead does so with a woman. It is no coincidence that homosexual epithets get attached to individuals of either sex who deviate from their traditional roles in other ways (how they dress, how they behave, what interests they pursue, etc.) So sexual orientation discrimination is not inconsistent with sex discrimination, on the contrary it is a particular form of sex discrimination.
He also quotes Andrew Koppelman’s observation that to say that sexual orientation discrimination is a separate, and more allowable, category from sex discrimination, is to create a legal loophole for people who commit otherwise illegal sex discrimination:
Francisco Valdes’s extensive study of the caselaw [83 Cal. L. Rev. 1, 119-207, 308-14 (1995)] finds that, in cases involving straightforward sex discrimination, defendants have often succeeded by imputing homosexuality to the plaintiff on the basis of the plaintiff’s purported gender atypical behavior. Gender stereotyping is supposedly forbidden by sex discrimination law, but the decision to permit sexual-orientation discrimination has created a huge loophole that has been deployed even against heterosexual plaintiffs.
Gabriel’s post has much more.
While I’m at it, I can’t recommend highly enough his most recent post, Discrimination and Intent, which argues (using extensive quoting from Court decisions) that although sex discrimination and racial discrimination are not in all ways identical, they are alike in the ways that are relevant to the same-sex marriage issue.
The fact is all sexual orientation discrimination is inherently a matter of sex discrimination because one cannot define sexual orientation without reference to one’s sex.
This is fallacious.
“Person X’s sexual orientation is homosexual. Person X is attracted to individuals of the same sex as Person X.”
You don’t need to know the person’s sex to be able to define their orientation. This is a lovely elegant argument, without a foundation.
Philosophically speaking, I like the anti-sex discrimination argument best as well. I agree that discrimination against sexual orientation is another facet of sex discrimination.
The sex-discrimination is the easiest to refute in light of the experiments with same-sex procreation done in mice. As the scientists who created Kaguya say, it would be “completely unethical” to try it in humans. So it does NOT violate sex equality to tell a woman she cannot marry another woman when a man could do so, becuase her attempt at procreation with a man would be completey ethical, but her attempt at procreation with a woman would be completely unethical. And marriage grants procreation rights. Even if you refuse to admit that, you have to admit that there is a right that a man has with a woman that he doesn’t have with a man, because it is wrong, completely unethical, to attempt SSP in humans.
“And marriage grants procreation rights. Even if you refuse to admit that, you have to admit that there is a right that a man has with a woman ”
Ahhhh. I was wondering how long it would take you to strip the meat from the bone and admit to your “woman as owned” logic. So kind of you to cut to the chase.
“because it is wrong, completely unethical, to attempt SSP in humans. ”
Can’t most postpubescent humans tell the difference between men and women? And don’t they already know that it’s impossible for two men or two women to procreate?
Besides, what if both the man and the woman in a hetero relationship are barren? Yes, they have a “license” to procreate, but that license is about as useful and meaningful as my time-travel license.
Just sayin’.
Dammit, I was under the impression that you could get pregnant even if you weren’t married, Mr. Moral! And here I’ve been using the pill for no reason all these years.
Q Grrl: you must’ve misread. please reread with opened mind. i left out the “vice versa”, because it ought to be obvious enough.
Maureen: google “Kaguya mouse” – SSP is not impossible, just unethical. The license to procreate is not useless in light of this technology.
Amanda: after the egg and sperm law, SSP will be illegal, regardless of marriage. And that means marriage will be impossible, since all marriages can procreate. And btw, there is no right to procreate outside of marriage. You have been using the pill to prevent pregnancy in case someone forces themselves on you, or you temporarily lose your senses in the heat of passion, which happens and you are smart to protect yourself against that.
Q Grrl: you must’ve misread. please reread with opened mind. i left out the “vice versa”, because it ought to be obvious enough.
Nothing is obvious when you spew homophobic ideologies. I take you at your word, not your intent.
“Maureen: google “Kaguya mouse”? – SSP is not impossible, just unethical. ”
We aren’t mice, in case you haven’t noticed. Also, whose ethics? I mean, really. I have a right to my bodily integrity, which includes becoming pregnant and bearing a child any way that I see fit. No matter what *you* might say.
That’s the fun part though. I mean, what are you gonna do, talk me outta my pregnancy? Wag a finger at my swollen belly?
Sorry, Johnny, I’m on the pill not because someone might force themselves on me or because I’m worried about “temporaily losing my senses”. I’m on the pill in a rational effort to not got pregnant because I wish to have sex (even without marriage).
I believe SSP is considered “unethical” for the same reason cloning still is: it’s very, very dangerous still. It’s still in the rat stage, for chrissake. It’s not unethical because it two women.
You can procreate outside of marriage, you just don’t have the right to procreate outside of marriage. Just like you can murder a bigoted troll, but you don’t have the right to murder a bigoted troll. But, hey, you can stone an adultress! So that’s all right.
I forgot to ask: how do you feel about, ya’ know, Jesus and the whole Virgin Mary pregnancy? Isn’t the Holy Ghost supposed to represent the feminine divine or something like that?
Q grrl: my word didn’t have anything to do with what you seemed to hope I was saying. But anyway, you’re right, we aren’t mice, and the consensus is that it would be even harder to do with humans than it was with mice. And the standards for “success” would be much higher still – it won’t be enough to merely get a chimp to live to adulthood before we try it on humans. The mystery of gene imprinting is way to great to try and the procedure must be outlawed before someone decides they want to try it. We can’t leave it in the hands of profit-driven clinics or love-adled couples to decide when the technology is ready, for they will decide it is ready waaay before it is. As for talking you out of an SSP pregnancy, well, this isn’t something that you and your partner will be able to do in a field of tall grass on a summer day, you will have to go to a clinic staffed by highly trained scientists. It will be very very easy to stop those clinics from offering this service, and very very easy to keep tabs on the few scientists who might want to try it. Scientists, for all their hubris and arrogance, are generally law-abiding people, and if the law says they can’t clone or combine two eggs to make a person, they probably won’t.
If you conceive a child through fornication, will that child grow up to be disrespectful?
I know, I know, I know. But I can’t help it. It’s like a big ol’ target on someone’s butt and a tomato in your hand.
Lord Johnny. I’m not expecting no girl to get me pregnant. You seem to think you need a couple to maintain a pregnancy, or something like that. I mean, I guess I don’t really understand why you think a single woman, or a lesbian, or any of a number of different women, can’t *be* pregnant all on their little own selves. What am I missing?
Antigone: Don’t tell anyone that. Eisenstadt didn’t say you have a right to have sex. It said you have a right to use contraception to lessen your chances of getting pregnant. That is a private decision you can make. Sex isn’t.
You’re right that it’s unethical because it is way too risky for the person being created, but that is only one of many reasons it is unethical. It’s enough to leave it at that, but because there are people who seem to think that it will eventually be ethical, I should say that no, it will never be ethical, people should always be created by the union of a real living man and a real living woman who love each other and consent to raise their children together.
Amanda: that child will be respectful, which is really worse than if it is disrespectful. We will all become numbed to what is meaningful and the things we respect will be lifeless and meaningless, untill gradually respect itself will have nothing to reflect on.
Q grrl: Wow, do you think that Virgin Mary stuff happens all the time? I’m talking about prohibiting attempts to combine two eggs or two sperm to create offspring. The subjects of fornication and D.C. and things like that come up in the conversation, but aren’t essential to my point. The egg and sperm law would have no effect on D.C. or IVF or single motherhood…it would only effect laboratories doing weird experiments. It would only prohibit things that no one is doing now anyhow, and everything that people can do now would still be legal.
woah, some of these spamblocker problems are tough!
hmm, defining sexual orientation on the basis of whom your attracted to, not what sex you are. Its a wonderful idea. I’m sure the wingnuts will dislike it, because it proposes an equality between the sexes but hey they oppose a lot of good things.
Suddenly a Masculinist becomes someone whose attracted to men, a Feminist becomes someone attracted to women, a transexualist = someone attracted to trans-gender people. Though I’m not sure what to call someone whose Bisexual. I guess the traditional term will have to do.
“Though I’m not sure what to call someone whose Bisexual.”
Liberated?
And a racist becomes someone attracted to a race, etc… how about desiring to join with a person of the other sex to create a fully human person called a marriage (the third person is the creative force that can create new life)?
Well, I just return to my original statement then that everyone should live in glass houses so that we can make sure that everyone is having that respectful sex–the kind that is everyone else’s business.
Nah, I just wanna screw.
Forget the tertiary, great white light of creative personhood.
oops, i half-edited that post – i meant to say that a marriage is a “triune person” – the two sexes joined with the creative potential.
The more Mr. Moral talks about marriage, the less appealing marriage sounds. On the other hand, disrespectful fornicating is sounding more fun by the minute.
Well, I just return to my original statement then that everyone should live in glass houses so that we can make sure that everyone is having that respectful sex”“the kind that is everyone else’s business.
Fine, but I’m wearing the snazzy leather outfits and putting on a show! I will not sign autographs, however.
we should be able to live in glass houses and have nothing to hide. people used to live in big one room houses and the married couples just screwed in front of everyone. There is still no law that says married people can’t screw in public, as long as they don’t do it lewdly and lasciviously. Married people are always screwing in public, because the public knows that when they go in to their bedroom, they will be screwing. We don’t need to see them to know that’s what they are doing. They are allowed to, they are encouraged to, it’s a good thing.
Well that lost comment did me in. We definitely have a performance artist on our hands. Johnny Moral, why don’t you strut this performance at a right wing blog? I mean, we here don’t need any convincing that wingnuts be crazy.
Johnny, I have so many comments that I think are disrespectful that I will refrain from saying :D.
First, what can’t I say, and why can’t I say it? Am I not supposed to say that I’m on the pill because I want to have sex without pregnancy? I’m afraid I’m not familiar with “Eisenstadt” but seeing as it’s German and you’re webpage’s bent, I’m going to take a shot in the dark and say it has to do with Eugenics?
I don’t see how sex isn’t a private decision. Well, I suppose it’s private between me and the guy I’m fucking.
Why? Give me a reason that doesn’t boil down to “because we’ve always done it this way” or “God says so”. Provide links for all information, preferably. Do not link your webpage.
Wait, does that mean that I’m not a “fully human being” if I wasn’t concieved in the traditional way? What if I told you that my mom choose artificial assimination to concieve me? Am I less human than you know?
So, it’s implied that you’re screwing, but actual screwing’s bad? But two adults in a bedroom is bad? Fucking is fucking, I still say that you can do it for pleasure and not for procreation.
Whoops, there were quotes in between those. Sorry, guess you’ll have to fill in the blanks. *bad n00b*
[I fixed it – Amp]
I’m left wing, Amanda. Didn’t you see my anti-American imperialism commercialism stuff? Not all left-wingers are anti-marriage feminists, some believe in equality of the sexes and marriage.
Eisenstadt was a Supreme Court case in the 70’s (?) that said, after the Griswald case had made contraception legal for married couples, that it was legal for unmarried people too.
>I don’t see how sex isn’t a private decision. Well, I suppose it’s private between me and the guy I’m fucking.
The “pri” in private means “one”, and there are at the minimum two and potentially even more people who will be born who are involved with sex. It can’t be private. Masterbation can be private, but not sex, the phrase ‘private conversation’ is sort of an oxymoron. But please don’t bother arguing my contention that if it involves two people, it isn’t private. I am fine with using the oxymoronic meaning like everyone else does. The more important thing to see is that sex might CREATE someone. And that person arrives on the scene nine months after people made a supposedly private decision to have sex, and suddenly their private decision isn’t private anymore. THe mother and father are both made public. And there is no way to predict in advance if it will be able to be kept oxymoronically “private” or not.
>Why?
I asume you mean why should we prohibit non egg and sperm procreation? The short answer is that it’s too risky for the person being created. It would involve way too much exploitation of women’s eggs and wombs to do the experiments, and there is simply no need to do that. There are much better things to do with our time and resources, there are people who need food and medical care, and we can’t ignore them while putting all our resources into trying to create people from two sperm or two eggs.
>Wait, does that mean that I’m not a “fully human being”? …
None of us are fully human. Only a marriage is fully human. Humans have penises and wombs and only a marriage has both. Anything that is missing one or the other isn’t fully human.
>So, it’s implied that you’re screwing, but actual screwing’s bad? But two adults in a bedroom is bad? Fucking is fucking, I still say that you can do it for pleasure and not for procreation.
Actual screwing is good in a marriage, bad not in a marriage. It can be done for pleasure in a marriage (dont accuse me of taking the fun out of marriage).
None of us are fully human. Only a marriage is fully human. Humans have penises and wombs and only a marriage has both. Anything that is missing one or the other isn’t fully human.
once again, i’m at a loss as to how such statements fall under the rubric of either “civil” or “respectful”…
so, we’re not fully human, Mr. GreenEggs&Sperm? forgive me if i don’t take your word for it & continue to regard the rest of the people posting here as fully human. i’m happy, however, to regard you as less than human if you so insist.
and not all humans have penises & wombs, btw…
actually, i’m curious: when you were having all these divine revelations about the meanings of life, did you sneeze at all? y’know… cuz of all the belly-button lint?
I’m left wing, Amanda. Didn’t you see my anti-American imperialism commercialism stuff? Not all left-wingers are anti-marriage feminists, some believe in equality of the sexes and marriage.
So you’re left wing on some issues, and right wing on others. In regard to sexuality and gender, you’re very right wing.
JM, I gotta wonder, is in-vitro fertilization using donor sperm and/or egg unethical? How about surrogate motherhood? What about those darn adopted kids? Were they spawned in an unethical manner also?
Also, should infertile people be allowed to marry, since they’ll never be able to procreate the old-fashioned way?
“Eisenstadt didn’t say you have a right to have sex. It said you have a right to use contraception to lessen your chances of getting pregnant.”
You’re absolutely right. The right to have sex was in Lawrence v. Texas.
Yes, Johnny Moral, according to the Supreme Court of the United States I have the right to do any sort of sexual behavior by myself or with consenting adults. And that includes making a baby when I’m not married.
LOL, Mr. Moral….I hope you don’t teach health class.
When it comes to your extremely peculiar views on sex and marriage, you are 100% Grade A Wing Nut. Plenty of wingnuts can speak common sense when they aren’t talking about their pet theories on who needs oppressing and how.
Frankly, I don’t even see why we’re still arguing with Mr Moral. He keeps talking about procreation and children, when the original post is about same-sex marriage. Now, with the advances in technology (and he brings in a particular one which isn’t even an issue in the gay community !) and the recognition of sterile couples as full-fledged humans (we can hear a gasp coming from Those Wingnuts Of The Religious Worldview) , it is clear that those two themes aren’t essentially linked, and to assume so does mean enforcing a conservatist worldview.
Personally, I don’t care if he says he’s leftwing. Judging by what he says, he’s more of an Opus Dei devout than the current Pope. And after his beautifully crafted comments (“None of us are fully human. Only a marriage is fully human. Humans have penises and wombs and only a marriage has both. Anything that is missing one or the other isn’t fully human” comes to mind), I dearly hope he’s a troll.
Besides, it’s too bizarre for words. How can an institution have an anatomy ? I’m floored. And in answer to Robert’s comment that you can define someone as an homosexual without knowing his sex, let’s just say that it’s a huge fallacy. I mean, Robert, it’s theoretically all well and good, but humans aren’t theoretically homosexuals, are they ? You define your sexual orientation taking your own gender into account. Imagine someone saying to themselves “Now, I like women. Am I heterosexual or homosexual ? I reaaally should know my own gender, it would help for public bathrooms”.
And yes, it’s ridiculous. So is saying law defines sexual orientation before gender. So it’s obvious discrimination based on sexual orientation comes from sex discrimination.
Actual screwing is good in a marriage, bad not in a marriage.
Same-sex couples can already screw. It seems Johnny should want them to marry so it can be that good screwage.
“Person X’s sexual orientation is homosexual. Person X is attracted to individuals of the same sex as Person X.”?
I think Robert’s idea that one can classify sex orientation without classifying based on sex because we can make reference to persons of the same sex is rather ridiculous. By that reasoning we don’t need racial classifications to segregate prisons. We just make sure Person X is only in a cell with individuals of the same race as Person X.
Though I’m not sure what to call someone whose Bisexual.
How about a bicyclist?
I honestly thought Mr. Moral was a satirical game when I read his first comment on another entry, so I let it stand as that, thought it was humorous, but now that I know he is serious.. oh my…
and to get back to Robert’s comment
“Person X’s sexual orientation is homosexual. Person X is attracted to individuals of the same sex as Person X.”?
You don’t need to know the person’s sex to be able to define their orientation. This is a lovely elegant argument, without a foundation.”
Galois refutest his pretty good in his excellent entries. I assume you either haven’t read them or just skimmed them since you didn’t address them specifically..
but doesn’t your logic seem somewhat off to you? You can _not_ define someone’s orientation except by their gender. “Person X’s sexual orientation is homosexual” can’t be ascertained unless you first know their gender. If it were a gay male, it is their gender you object to because if they had the same orientation (attracted to males) but a different gender, you’d be just fine with it.
The more I learn about those who oppose gay rights and the older I get the more convinced I am that ‘gender roles’ is the _real_ problem.
“Person X’s sexual orientation is homosexual”? can’t be ascertained unless you first know their gender.
Your statement is empirically false.
I do not know Person X. If I put Person X in a separate concrete room with a teletype and we communicate by means of question-and-answer, a Turing test, I have no earthly means of determining X’s sex without asking.
But I can very easily determine your homo- or hetero- sexuality, without you or I ever mentioning the valence of your sexual dimorphism.
“Hey, person X, are you homosexual, heteroxual, metrosexual, trans-sexual, what’s the deal over there?”
“Robert, I’m [hetero|gay|what have you].”
There, done.
Do we generally go to questions of gender first? Yes, we do. I don’t know if that’s cultural or not. Are we logically required to do that? Obviously not.
Robert (sorry if double-post)
You’re asking the wrong question, I think. The gov’t doesn’t care what Person X’s sexual orientation is. It’s not seeking to ban homosexuals from marriage- it is seeking to ban homosexual marriage. Different things. It is perfectly legal for Gay Johnny to marry Gay Susy, so Person X saying “Robert, I’m gay!” doesn’t disqualify X from marrying. But if you in your sealed room are to judge the legality of that possible marriage, you must know X’s sex, and X’s partner’s sex.
The gov’t doesn’t care what Person X’s sexual orientation is. It’s not seeking to ban homosexuals from marriage- it is seeking to ban homosexual marriage.
If this set of statements is true, then any claim of discrimination is hollow on its face. If an entity has no discriminatory intention, how is it possible to meaningfully argue discrimination? Differential outcomes, yes – which in some narrow circumstances have been held to be so unacceptable and pernicious as to require a governmental remedy. Homosexual marriage is unlikely to meet the criteria for that exception.
That’s if this statement is true, of course.
Oh sure, you social conservatives are cheering the Bush administration now, when their trying to get an amendment to ban same sex marriage, but that’s just the first step! Naturally, same-sex marriage is a weaker target, so they’ll attack it first, but their anti-marriage agenda will eventually come to include opposite-sex marriage as well. You don’t see the slippery slope that banning same-sex marriage will create. First same sex marriage, then opposite sex marriage, then eventually the right of parents to raise their children. Eventually children will be legally no more associated with their children than any random stranger off the street!
(Note: the above argument does not really make sense. However, it is roughly on the same logical level as most conservative arguments against same-sex marriage)
There are several problems with Roberts classify based on asking the person.
1) Sexual orientaiton discrimination rarely, if ever, occurs based solely on one’s anser to the question “Are you gay?”
2) If it were, what keeps Person X from lying or simply refusing to answer the question.
3) If a governmental policy were based on that it would be a clear violation of free-speech.
Most importantly, though, in order for Person X to know how to answer the question there must be a classification based on sex. If Person X responds, “I don’t know, I guess that depends what you mean by heterosexual, homosexual, etc.” What do you tell Person X? “Oh just pick some answer randomly.” If that’s your criterion the classification is rather meaningless. If your answer is “Are you attracted/dating/planning to marry/having sex with, etc. a person of the same sex?” we are back to where started from, a gender classification.
If an entity has no discriminatory intention, how is it possible to meaningfully argue discrimination?
Because the law is discriminatory on its face. Is anyone really missing this part? Mind-reading the Legislature is not relevant. There is a sex-based distinction in the marriage law.
Anyone trolling about procreation just admitted they don’t know squat about marriage law or the history thereof. States have moved away from the marriage = procreation theory for a long time–Hawaii lost in Baehr v. Lewin in part because it got rid of requirements about married people being able to have babies.
We can classify orientation discrimination as a form of sex discrimination. Disagreeing with this means contradicting the simplest observable facts — of course we can do it, we just did. As for whether it makes sense to do this, why not? The law really does forbid a lesbian to marry another women, when a man has the legal right to do so. People really do get upset at behavior that would pass without comment in someone of the opposite sex. Robert, do you really think that attacks on homosexuality have nothing to do with enforcing approved gender behavior?
(O my, I am sorry if this is a d-post again!)
Robert,
“If this set of statements is true, then any claim of discrimination is hollow on its face.”
I don’t agree. The gay marriage problem is not solved because Gay John can marry Gay Susy. Banning gay marriage is an effective ban on gays marrying, even if it’s not an explicit- so it’s still discrimination. You can argue about this. It’s probably happened on this blog before.
I think, though, that the point of the original posters was that it is harder to argue the ban’s discriminatory nature when it is phrased in this way:Â “Gay John can’t marry Bernard, but Susy can, because Gay John is a man and Susy is a woman.” That is sex discrimination. The only reason John is now allowed to marry Bernard is because of his sex- not because he is gay.
I think that the problem with using sex discrimination in this fashion is that the connection is too tenuous. People aren’t being discriminated against because of their gender, they are being discriminated against because of their sexual orientation. Sexual orientation and gender aren’t the same concept.
You could make an airtight case for sexual discrimination if gay men were allowed to marry, but lesbians were forbidden – but that isn’t the case. ALL homosexuals are SOL when it comes to marriage.
The judiciary may well be responsive to this argument – but I don’t think it’ll hold up. The legislative branch is about at the end of its tolerance for judicial reinterpretive word games. The populace certainly is; going for gay marriage in this backdoor fashion is guaranteed to provoke a backlash.
What blew me away when Gavin Newsom performed marriages at City Hall in San Francisco, was how widely supported it was. There are a lot more people who support gay marriage than most gay marriage advocates realized. I think this is a right that could be won within a few years if we took an active and assertive approach to it.
As for word games: I remember wondering, when I was five years old, why it was supposed to be the greatest thing in the world for a man and a woman to kiss each other, but a man kissing a man or a woman kissing a woman was supposed to be icky. It was obvious to me that they’re the same thing.
People aren’t being discriminated against because of their gender, they are being discriminated against because of their sexual orientation. Sexual orientation and gender aren’t the same concept.
But what does it mean to say discriminated against because of sexual orientation? It means restrictions or reprisals for not conforming to certain gender roles. That is a form of gender discrimination. Of course they are not the same concept, but sexual orientation derives from gender.
Most instances of gender discrimination involve requiring both males and females to conform to their respective gender roles. One should not say that it would only be gender discrimination if women were confined to roles, but men could do as they wished. Unfortunatly, many do see it this way. In a 2-1 decision the 9th Circuit Court of Appeals recently ruled that it was okay for an employer to require that women wear makeup and prohibit men from wearing makeup. Lambda Legal is asking the full bench of the 9th Circuit to rehear that case.
In any case, it is not at all a matter of word games. Many would say that gender stereotyping lies at the heart of gender discrimination even when those stereotypes require every person to conform to rigid gender roles.
People aren’t being discriminated against because of their gender
Sigh. Let’s try this yet again. When a law draws a distinction based on a ‘suspect classification’, the fact that the same restrictions apply to different groups under that classification DOES NOT make the law magically OK. Treating one group worse is not the only form of impermissible discrimination. Making a distinction based on sex, race, national origin, etc. can be, even if the distinction hurts everyone.
Robert, your argument is exactly the one used in Loving v. Virginia and the Supreme Court explicitly rejected .
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That trackback should have read “hope it’s worth reading.” Damn typos….
State recognition of marriage flows from the man-woman criterion of the social institution. Remove that criterion and state-recognition of marriage would be replaced by state-recognition of something else.
Society might decide to do this for a variety of reasons, but this is no minor change in marriage. It is not a an evolutionary extension of that social institution. It would be a radical demotion of the status of marriage vis-a-vis nonmarriage.
If there is a right to state-recognized marriage, then, the enactment of SSM would deny all of society that very right. Both marriage and the enacted change would be undermined. This can be avoided.
Whether unisexed arrangements have merit, benefit society, or promote the happiness of individuals, such arrangements are perhipheral to the societal support for a social institution that has always been rooted in the combination of men and women and bonding them with their children. That needs to be strengthened not replaced.
If society, through its legislative representatives, found that it benefited from alternative domestic arrangements, then, it would be free to benefit them appropriately.
Establishment of state-recognition of some unmarriagable combinations does not necessitate encroachment on marriage itself. Nor would it require the presumption of same-sex sexual relations. It could include a wider range of unmarriagable combinations (within reasonable criteria to guard against abuse, incest, and such) while excluding marriagable combinations.
>> It’s not seeking to ban homosexuals from marriage- it is seeking to ban homosexual marriage
1. No version of marriage is unisexed.
2. Unisexed arrangements may resemble some aspects of marriage, and may be compatable with marriage, but are not a form of marriage.
3. There is no ban in existence, and none proposed, that would prohibit unisexed alternatives to marriage
Some comments are just unbelievable. Primarily, the reason SSM shouldn’t be allowed, according to its detractors, is that it violates the original purpose of marriage (tradition, tradition). In that same vein, those who support SSM and denounce sex discrimination fail to see that the original ban on homosexual marriage had nothing to do with sexism, but were based on grounds of immorality. Prohibition of SSM has supposedly nothing to do with homophobia, since it still leaves open all other kinds of possibilities for same-sex couples. And to top it off, since both men and women are concerned by this measure, claims of sexism are ridiculous.
First of all, good rebutals of those claims have already been made, but more logic won’t hurt. Let’s start with the last argument, AKA both gay men and lesbians face the same reality, therefore no sexism is at play. Gay Susie isn’t banned from marriage because she’s a woman; she’s banned from the marriage of her choice because she fails to be a real woman.
If somebody denies this, consider the following: in tradition, a marriage is between a man and a woman. It is such a holy thing that no woman is denied that right, and in fact, no woman could refuse it for the longest time (men had a slighly better time, but not by much). Once again, in tradition, all women (and almost all men) were to strive towards marriage (except the nuns, but is it any surprise that religious organizations got exemptions for a social rule based on religious grounds ? ). Spinsters were “unaccomplished”, period. They had failed in their first and foremost mission in life, to lawfully procreate (marriage as the essential step towards motherhood).
And you know, I find it very ironic that those who fanatically believe in the absolute validity of the biological binary opposition male/female (such demeaning terms) rely on a third category for their worldview not to crumble, that of “failures”. It means that whatever doesn’t fit just doesn’t count.
I could repeat exactly the same reasoning with Gay Jake, except that what would be emphasized is the failure to dominate instead of subservience, but you get the point.
Anyway, since when is sexism a synonym for discrimination against women ? I thought it meant discrimination against an individual based on their gender, silly me. Aren’t you the one who is always complaining about how injustices against men are always ignored, Robert ? If we lived in a world thorougly ruled by women, wouldn’t we still use the word “sexism” to describe the oppression of men ? The connotations would widely change, not the original definition.
Sexual orientation is seen as a social problem because of social gender roles, and yes, it goes both ways, and yes, the injustices related to it are equally staggering to all those who have to endure it.
Now, about the other possibilities gay people could have… They’re undoubtedly a good thing, since not all gay couples want to be married, but it still doesn’t explain why SSM should be forbidden. If some gay people want to be married, why couldn’t they ? It’s not my place nor anyone else’s to tell them that they shouldn’t want it. As long as heterosexual marriages are allowed, it IS discrimination to forbid marriage to gay people, and I for one fail to see how any social discrimination is ethical or justified.
I’m gonna cut my post in two, for lecture’s sake.
(Continued)
So let’s come to the “it wasn’t intended that way” meme (from Prima Impressionis’ blog). If you mean original legislators didn’t want men to be able to marry men and women to be able to marry women, it’s absolutely true. They didn’t, because they thought it was immoral. *That* was their reason. But we don’t consider homosexuality as immoral now, do we ? So if they thought they had a good reason but it’s proved they really hadn’t, why wouldn’t we remove the measure ? I mean, isn’t it our duty to correct false assumptions along with past injustices whenever we can ?
So, that may have been their original reason, but if you want to maintain it nowadays, I have a word for this attitude. Homophobia. If it really isn’t immoral, why should it be forbidden ? And if you think it’s immoral … Nobody can forcefully erase prejudices from people’s minds. It’s your private right. However, society should *not* be captive of its most backwarded opinions. As a collective, it should exert only those principles which provide most equality in pursuit of happiness. Because SSM wouldn’t violate your right to get a heterosexual marriage, whereas its prohibition does violate the right of gay people to find happiness in marriage. SSM would violate your right to rule somebody else’s life, which is the only way a social contract can keep away the specter of dictatorship, be it a social, political, religious or economical one (and ain’t it all those in practice!).
What’s more, I really don’t understand the logic of those who hate the idea of SSM. I mean, if you believe marriage leads to happiness, why would you want to forbid it to some of your fellow humans ? If you’re concerned about the decline of marriage, don’t you want to open it to more people ? Gay people won’t divorce anymore than straight (or bisexual) ones, you know ? There’s even a good chance the novelty of the whole process would lead to further enthusiasm from gay people, and that it would take some time for it to wear off and for their divorce levels to reach those of “traditional” marriages.
Oh, and can we please cease bringing in the topic of procreation ? Individuals can *not* seek their perpetuation through children, and I’d say that as a species, it’s not a problem, what with the 6 (and growing) billion people on the planet. Besides, gay couple can procreate now, thanks to science, and I hope infertile people aren’t going to face once again the annulation of their marriage.
So all in all, the best argument some can come with is that tradition dictates we follow the same guidelines our ancestors did. Just for the record, there are plenty of intentions present in the original Constitution that have been obliterated by the latest amendments. The Founders, under the impulsion of their more conservative members, *wanted* Black people to be stripped of all their rights. They wanted them not to vote, they wanted them to be bereft of a legal identity, and for that matter, they wanted women not to be equal to men. And if you really believe in their words freedom, equality, justice and happiness for all, you must recognize that the former intentions were their limitations, not ours.
If your definition of marriage is “the union of a man and a woman in order to beget”, and that of other people is ” the union of two consenting adults, convinced they have found utter happiness in another human being and convinced to proclaim it to the world”, I wonder who’s really aiming at the divine…
Oh, and as for Chairm’s “peripheral” comment, newsflash : society’s objective shouldn’t be to encourage its citizens’ happiness, but to solidify its most deeply-prejudiced institutions ! Who’s the traitor who came up with the idea of audits and transparency ?
Aren’t you the one who is always complaining about how injustices against men are always ignored, Robert ?
Nope.
But we don’t consider homosexuality as immoral now, do we ?
A substantial majority of us do, if by “us” you mean Americans in general. Sorry. If this were not the case, then this whole issue would have been resolved in favor of SSM many, many years ago.
State recognition of marriage flows from the man-woman criterion of the social institution. Remove that criterion and state-recognition of marriage would be replaced by state-recognition of something else.
This doesn’t even parse.
I am still waiting for somebody to rebut the Constitutional issue.
Treating one group worse is not the only form of impermissible discrimination. Making a distinction based on sex, race, national origin, etc. can be, even if the distinction hurts everyone.
I won’t attempt to rebut you on the legalities; I’m sure you know a lot more about it than I do.
However, on the politics: treating one group worse is the only form of discrimination that ordinary people give a damn about, or think that the government ought to be involved with. Legally, you may well be able to wedge SSM into gender discrimination. Politically, it’s a total non-starter, and will simply add more fuel to the movement to sharply restrain the courts.
Ask, my argument focused on the Equal Protection issue, not on the normative issue of whether we should allow SSM. Since marriage was defined as between a man and woman because of procreation, I argued, among other things, that courts cannot extend the definition merely because heterosexuals can marry each other but homosexuals cannot; the reason being that legally homosexuals do not fit within the definition of marriage.Your argument pertains to whether we, the people, through the legislature should expand the laws to allow SSM. That’s an entirely different argument that I’d love to deal with time permitting (we first year law students don’t really have all that much time).
I’ve noticed that “restraining” the courts is something that only matters if the court is a) acknowledging that all Americans have the same rights, even wimmins, blacks and gays or b) the court decides in the favor of a person who was a victim of corporate pollution or negligence. I have yet to see any conservative grandstand on Fox News about restraining frivilous lawsuits like the RIAA suing 10-year-olds for downloading a P. Diddy song.
But if you have a video clip, send it to me.
Amanda, do you believe that the courts should be allowed to say and do whatever they want, even if their decision is completely void of any legal basis?
Politically, it’s a total non-starter
I’m not talking about the political arena. That’s a whole nuther pack of arguments.
But legally speaking, same-sex marriage is gender discrimination.
Nephtuli, as a first-year law student, you might want to wait until you take Family Law and learn about the history of marriage law. You may not be aware yet that things we take for granted–such as legal equality between husband and wife–are quite new and outré. If you can stand the idea of the states jettisoning couverture (look it up in Black’s), you shouldn’t get your hornbook in a knot over SSM. They’re about equally bizarre from the “historical marriage is what marriage should be” point of view.
mythago, correct me if I’m wrong, but wasn’t couverture eradicated by legislation? How does that issue play a role in the question of whether the courts should extend the legal definition of marriage?
First, courts are not “extending the legal definition of marriage.” They are removing unconstitutional provisions of the law, rather than throwing it out wholesale. Unless you believe that the legal rationale of Loving v. Virginia was wacked and the Court was engaging in unjustified judicial activism…
What eradicated couverture was not fifty states individually altering their marriage laws in fifty fell swoops. It was a long process involving the interpretation of the Equal Protection clause to apply to gender-based discrimination (you’ve probably read the cases where widowers sued because only widows were allowed to receive survivorship benefits from pensions), applications of civil-rights statutes*, and actual legislative changes.
My point about couverture is that it was once considered as integral a part of marriage as gender, or as procreation, was. I don’t understand the argument that it’s OK to throw out couverture and procreation, but by jingo, you mess with the male-female thing and you’re Destroying Tradition!!!!OMG!!!! (As if there is any rationale for such sex discrimination, once you remove mandatory sexism and baby-making.)
*You may recall that ‘sex’ was added to the Civil Rights Act by a senator who hoped that would kill the entire bill outright.
I don’t understand the argument that it’s OK to throw out couverture and procreation, but by jingo, you mess with the male-female thing and you’re Destroying Tradition!
Thus far, and no farther.
Altering the arrangements IN marriage is not the same thing, conceptually or practically, as altering the arrangements OF marriage. Everybody understands this, even activists seeking to make such a change; it’s just rhetorically impolitic for you to admit it.
mythago, I dealt with the comparison to Loving on my blog. Loving was about removing a racial restriction that was created solely for the purpose of White superiority. The law was passed in 1924 and did not change the definition of marriage, but outlawed miscegenation. How could it be changing marriage when it specifically outlawed “intermarriage?”
The fact that couverture was removed slowly rather than in one fell swoop does not change the fact that it was removed by the legislature, not the courts. SSM should only be legitimized by the people, not imposed by the courts.
You have yet to answer any of the substantive arguments I made in my post. If you need the link, here it is: http://primaimpressionis.blogspot.com/2005/03/same-sex-marriage-and-equal-protection.html
Altering the arrangements IN marriage is not the same thing, conceptually or practically, as altering the arrangements OF marriage.
I agree completely. The former is the much more significant change. Allowing same-sex couples to marry alters WHO may enter into marriage. The arrangements IN marriage, though remain the same. Thus no other marriages are effected–at least directly–by allowing some new couple to marry. The same rules which governed an existing marriage still govern it, the only difference is those rules now also govern other marriages as well. Changes like coverture or elimination of the marital rape exception effected every single marriage directly because they changed arrangements in the marriage. Now I believe those changes were for the better, but we should not kid ourselves that those were far more significant changes regarding marriage.
I am hesitant to compare something so significant to marriage to something so trivial as baseball, but I believe it might be helpful. (I also apologize to those outside the US who may be totally lost by the comparison). When Jackie Robinson entered baseball that changed WHO was allowed to play. It was certainly a momentous event. It did not however change the rules IN baseball. It was still the same game, only more people were allowed to play. The addition of the DH rule changed the rules of the game for everyone.
As for Nephtuli, I haveanswered your arguments with a new post on my blog. I also point out the number of times when you misrepresented my claims. As for your claim that coveture was removed by the legislatures and not the courts, that is not entirely true. The idea that women could hold property was often removed by the legislature, but the idea that marriage turned the husband and wife into one legal entity represented by the husband was often thrown away by the courts themselves. To give just a few examples of this. In a Massachusetts case of Bradford v. Worcester 184. Mass 557 (1904) the court eliminated the rule of law that said a wife’s legal residence was determined by her husband’s abode. In another case, Lewis v. Lewis 370 Mass. 619 (1976) that same court eliminated the rule of interspousal tort immunity, the idea that a person cannot be sued by one’s own spouse (because they form one legal entity). The courts have also changed rules of marriage because of gender classifications. The duty of support that once flowed only from husband to wife is now reciprocal. (Sticking with the Massachusetts examples consider Silvia v. Silvia 9 Mass. App. Ct. 339 (1980), alternately consider the US Supreme Court in Orr v. Orr (1979).)
Robert, if you want to talk about how cool it would be to have mind-reading powers, so you can safely tell others what they secretly think, maybe you should go to the super-powers thread.
Far from secretly agreeing with you, I don’t even understand what you’re saying here. What’s the distinction between “in” and “of,” in this context?
UPDATE: Oh, never mind, Gabriel explained it. Thanks, G.
Robert, what is the rationale justifying “no farther”?
Nephtuli, Galois pretty much covered it, but again, as a law student I am sure by know you have been taught that the legal rationale of a case can be applied to cases that appear to be different in subject matter.
That is, Loving‘s rationale applies because it discarded the notion that a law making a prima facie distinction based on a suspect class is OK as long as the distinction doesn’t actually disadvantage one group more than another. The important thing is the classification, not whether it’s “separate but equal.”
Your blog asks why sex rather than sexual orientation. Not meaning to be condescending, but, um, duh: because the law on its face draws a gender-based distinction. You have started Con Law, yes?
Your arguments about procreation fail when you look at how the people have, through their legislatures, thrown out those requirements of marriage. (You also misstate what marriage laws said about those who couldn’t procreate.) A nice summary of all this is in Baehr v. Lewin.
So far as I can tell, your opposition to SSM is based on an interpretation of the Equal Protection Clause that is in the distinct minority, and a belief that since marriage used to be about making babies, it always shall be, no matter what social and legal changes have made that go away. As you are a Constitutional originalist, I’d love to hear your take on DOMA, which is an imposition on the States.
Nice to see this blog is up and running again.
Gabriel: Yes, some of the common law rules of coverture were overturned by the courts. But it does not follow that because certain arrangements in marriage can be changed by the courts, who can enter into marriage can be changed. It was my contention that marriage is fundamentally between men and women because of procreation. Coverture laws are unnecessary to that end and therefore do not involve changes to the nature and purpose of marriage.
mythago: I answered the Loving comparison in my response to Gabriel.
I’m not denying that today marriage is not necessarily solely for procreation, although I do believe procreation is still the state’s primary interest in recognizing marriages. But I’m not quite sure how procreation was completely taken out of the equation. I also dealt with this issue in my response to Gabriel.
I haven’t really done much research on DOMA, but it can certainly be challenged, so I’d prefer a constitutional amendment that gave the states the right to deny recognition to marriage licenses from other states.
Nephtuli, I’m sorry, but I’m not getting how you answered the comparision to Loving other than to say, well, it was about race. Could you please explain why you disagree with the point that a law making a prima facie classification raises an Equal Protection problem even if the classification disadvantages all equally?
I can tell you exactly how procreation was ‘completely taken out’–again–by the people, through their legislation. Hawaii, for example, tossed it out in 1994 as “archaic.” If the people want to start preventing the infertile from marrying again, they can so vote.
I’m surprised a Constitutional originalist like yourself doesn’t turn apoplectic at DOMA, which attacks the Constitutional requirements of full faith and credit and comity between the states (you know, the doctrines that say if a 60-year-old man marries a 15-year-old girl in Mississippi, and later moves to Ohio with her, their marriage is treated as fully legal, even though he could never have legally married her in Ohio).
It was my contention that marriage is fundamentally between men and women because of procreation. Coverture laws are unnecessary to that end and therefore do not involve changes to the nature and purpose of marriage.
If one had said that marriage was fundamentally the uniting of two individuals into a single legal identity, then changes regarding coverture would involve changes to the nature and purpose of marriage. So whether a change is allowed by the court seems to depend on whether it agrees with your conception of marriage. But the problem runs deeper than that. Ending coverture laws changed the nature and purpose for everyone. One could no longer marry for the purpose of uniting into one legal identity. That purpose was erased. In Massachusetts one can still marry in order to procreate, it is is just that some couples will be marrying for other purposes (like providing a stable and suitable environment for raising children). Previously couples could also marry for other purposes as well. So regardless of one’s conception of marriage there was no change to the nature and purpose of marriage, which leads into Nephtuli’s second point…
I’m not denying that today marriage is not necessarily solely for procreation, although I do believe procreation is still the state’s primary interest in recognizing marriages. But I’m not quite sure how procreation was completely taken out of the equation.
Then we are in agreement. For I am not arguing that procreation was completely taken out of the equation, just that marriage is not necessarily soley for procreation. If marriage is for procreation and other concerns, then even if procreation is the state’s primary interest in recognizing the marriage there is no reason not to recgonize the marriage of a couple lacking the ability to procreate. (Not to mention several reasons in favor of recognizing it).
I haven’t really done much research on DOMA, but it can certainly be challenged, so I’d prefer a constitutional amendment that gave the states the right to deny recognition to marriage licenses from other states.
Suppose the state obtained (or already has) that right. Why would a state want to refuse recognition of marriage licenses from other states in this case? For example, suppose two people from Cambridge, MA got married. They raised three wonderful children whom they adopted and lived quite happily until one day one of them tragically and suddenly dies without a will. The deceased had owned some land in upstate New York. The widower seeks claim to that land. Why would New York care whether the deceased had been male or female?
mythago: My argument is not that there is a legitimate classification, but that there is no classification at all. A classification requires grouping two or more different sets into classes. In this case, everyone is required to marry members of the opposite gender so there’s no classification. As support for this proposition I cited the recently cited case of Seymour v. Holcomb, 2005 NY Slip Op 25070, 3 (N.Y. Misc., 2005).
As I pointed out on my blog, your argument is not necessarily wrong, but the courts have to figure out how to frame this issue. I’m too tired to rehash the whole argument now, but basic point is that courts in reality have discretion about how to frame the issue. The two possible ways are laid out in Seymour v. Holcomb and Hernandez v. Robles, 2005 NY Slip Op 25057.
On the procreation issue: Are you denying that procreation is an important state interest?
Again, I’m not that familiar with DOMA, but I think that constitutional amendment would work best.
Gabriel: I’m glad to see you agree with me that how courts view marriage is of paramount importance. The courts could say that marriage is about uniting two people into a legal entity, but then they’d have to explain why such a concept exists. Why would society want to unify two people if not for procreative purposes?
Obviously people have other reasons to marry, but should the state recognize marriages when they run contrary to the procreation concept? Maybe, but that’s up to the legislature.
The reason why NY would not want to be forced to recognize SSM is because they do not want to recognize SSM. Of course, this argument is circular, but the same idea applies in both situations. If the state has a reason to not want to recognize SSM, it probably has the same reason to not want to be forced to recognize SSM.
A classification requires grouping two or more different sets into classes. In this case, everyone is required to marry members of the opposite gender so there’s no classification.
Yes. In this case people are grouped into two classes male and female. Without the determination of which class one belongs to one cannot determine whether the marriage is valid. As we can see from this case involving a transexual, that determination is critical. How can you say that this person was not classified as a female? Had he been classified as a male the marriage would have been valid. As for the New York case, Justice Malvey was just plain wrong. He wrote:
Compare that with the Supreme Court upholding laws which handed out harsher sentences for interracial fornication:
Obviously people have other reasons to marry, but should the state recognize marriages when they run contrary to the procreation concept?
Well, I would not say that the inability to procreate runs contrary to the concept, but if it does then the state already does recognize such marriages. On what basis does it recognize some but not others? Are some harmful but others not harmful?
The reason why NY would not want to be forced to recognize SSM is because they do not want to recognize SSM. Of course, this argument is circular, but the same idea applies in both situations. If the state has a reason to not want to recognize SSM, it probably has the same reason to not want to be forced to recognize SSM.
It’s definitely circular and thus fails to answer the question. I would also note that states (and countries) often recognize marriages that would not be valid if entered into in that state itself.
>>Why would society want to unify two people if not for procreative purposes? >>
Well, properly speaking, society wouldn’t be uniting these couples, only recognizing that they’ve joined themselves together. That in and of itself is a good reason: these households exist already, and it makes sense for the law to recognize the reality of their situation. It’s senseless for society to look at two women who have lived together for twenty years, have a joint bank account, and have three children together, and see them as single individuals.
And one good rationale would be for “procreative purposes,” albeit in a looser sense than the one you’re using. It serves society’s interests to create stable situations for children. Gay couples have children. Allowing gay relationships the option of marriage would give those children more stable, safe treatment under the law, and would allow their parents to act as their parents.
But why don’t you ask someone in a childless marriage whether they feel that the legal bonds they have with their spouse are meaningless?
but should the state recognize marriages when they run contrary to the procreation concept?
The States, plural, already do. “On the procreation issue,” in other words, a State cannot claim it has a compelling interest in using marriage as a vehicle for procreation when its laws do not reflect that fact, and when its legislative history disavows such a compelling interest.
Nephtuli, your argument suggests to me that you haven’t actually read Loving (and apparently neither has the New York judge). Your argument about “everybody has to do it” was explicitly and clearly rejected in Loving. That was exactly the state of Virginia’s argument, as you’d know if you read the case; that because everybody had to marry within their race, it wasn’t discrimination.
And yes, as even you admit, your argument about why a state should not recognize other states’ SSM is circular. The whole point of full faith and credit is that the states agree to recognize other states’ internal affairs as legitimate. Why do you believe New York must recognize a marriage by a pedophile to a minor, but have the option of rejecting same-sex marriages, when both marriages occurred in other states?
I’m going to respond to the two major issues in these comments, rather than point-by-point.
1) The Loving analogy and classification.
Gabriel has consistently argued that our marriage laws do classify because on an individual level a man cannot marry a man and a woman cannot marry a woman.
I’ve been arguing that there is no classification because both genders are not allowed to do the exact same thing: marry a member of their own sex. I do not deny however, that the couple is being discriminated against, because the same sex union is not recognized while an opposite sex union would be.
I’ve proposed this construction of the argument not as a rebuttal, but as an alternative. A court can choose to say, like Gabriel, that there is a gender classification or it can choose, like me, to say there is no gender classification.
In this case, finding no classification on the basis of gender would require a finding of a classification on the basis of sexual orientation because the couple is being discriminated against because they are homosexual. This point I do not deny. The state would still have to provide a rational basis for the classification.
How does this case differ from Loving? Well, as a practical matter, Loving was a case about race, as was McLaughlin. Given the history of race relations in this country, it’s no wonder the court is going to be extra strict and pretty much overturn any law that even seems discriminatory.
Gender is not race. Although judges have applied intermediate scrutiny to gender discrimination cases that are “separate-but-equal,” courts are more likely to find a way out of striking down the law.
But both the gender and race issues apply here only tangentially. Unlike “separate-but-equal” cases that deal with gender and race, the intention of the makers of this law is not to classify based on gender. In Loving, the Court could have found no classification by pointing out that the law had the same requirements for both races. Of course, the Court chose not to do so, and struck down the law.
Let’s look at Johnson v. California for a moment. In that case the Court could have also found no classification by construing the law to mean that all races must be put in the same cell. It chose to find a classification, that Whites had to be with Whites and Blacks had to be with Blacks. It applied strict scrutiny because it found that classification.
This difference between Johnson and the case of SSM is that in Johnson the intent of authors of law was to classify based on race, while here the intent was to classify based on orientation. Note I am NOT talking about whether the intention of the classification is discriminatory. Gabriel is right that once there’s a classification based on race we must apply strict scrutiny. I’m talking about looking at the intention of the authors to determine in what way to construe the law; clearly there was a goal to classify in some way when passing this law. The Court should look at what that goal was and find the classification based on that goal.
In Loving the goal was to classify based on race. Here the goal is to classify based on orientation. The courts’ decision should reflect that.
2) Procreation
To start, I’m not exactly sure what mythago is referring to when he says that states have taken the procreation issue out of marriage. Does he deny that procreation is a compelling state interest (it need not be under Gabriel’s analysis, but let’s leave that aside for the moment)? Perhaps he can be more specific by pointing to actual laws that have done so.
My argument about procreation is as such:
Procreation is an important interest for a society. Society needs people to survive. To promote procreation and proper childrearing (two different but important issues), society grants tangible and intangible benefits to people in a legal concept called marriage.
We obviously allow marriages between people who cannot procreate. Should we? Conceptually allowing sterile or elderly couples to marry poses no problem because even if they cannot procreate they are not preventing procreation. If each partner married a fertile person, those marriages would actually be going against our interest in procreation.
SSM cannot procreate by definition. If the two partners married members of the opposite sex, both unions could procreate. Since procreation is a strong interest, we should promote the latter, not the former.
Why then do we allow sterile couples to marry at all? If we are worried about them marrying fertile people, why not just not allow them to marry at all? I responded to this point in my initial posting on my blog. The law affords every person a presumption of procreative ability. So any union between two people of the opposite sex would be afforded the presumption of procreation. Hence, we allow them to marry.
SSMs cannot procreate. We therefore afford them no presumption and do not allow them to marry.
>>Conceptually allowing sterile or elderly couples to marry poses no problem because even if they cannot procreate they are not preventing procreation. If each partner married a fertile person, those marriages would actually be going against our interest in procreation.
(skip)
SSM cannot procreate by definition. If the two partners married members of the opposite sex, both unions could procreate. Since procreation is a strong interest, we should promote the latter, not the former. >>
Many, if not most, sterile _couples_ are made up of one sterile and one fertile person. Duh.
SSMarried couples, who are (generally) both fertile apart and sterile together, use the same methods to procreate that sterile couples use.
And if we prevent SSMarriages from being solemnized, the people involved in them won’t break up and pair off with OS partners. (Setting aside for the mo whether it’s of any value to society to have a bunch of kids brought up by deeply unhappy parents.) They’ll keep on having non-procreative sex with each other and knocking each other up via artificial insemination, adopting, or entering into arrangements with surrogates. Just like they’ve been doing all along. They’ll just be living the same lives without the legal protections that Britney and Kevin enjoy.
And if you really think that society has a strong interest in producing sprogs, why aren’t you eager to give gay people the option of marrying? If greater legal protections are given to non-biological same-sex parents, same-sex couples will feel safer to parent.
Perhaps he can be more specific by pointing to actual laws that have done so.
I have–repeatedly. It’s a big part of the reason Hawaii lost in Baehr v. Lewin. Did you read the case? I already provided you a link to it.
A state is going to have a very hard time arguing a “compelling state interest” when its laws do not really reflect that interest. (You are familiar with the meaning of the phrase “narrowly drawn,” I assume.)
(You know, my young son does this same thing–when you tell him to do something he doesn’t like, he says “What did you say?” as though he didn’t quite catch it. Nevertheless, I repeat myself.)
SSM cannot procreate by definition.
Can you please explain why it is OK to allow infertile couples to marry (because it prevents them from taking a fertile person out of the system) but same-sex couples? Neither are intrafertile. Why permit one sort of marriage but not the other?
I’ve been arguing that there is no classification because both genders are not allowed to do the exact same thing: marry a member of their own sex.
And for the zillionth time: this line of reason was explicitly, flat-out rejected by the Supreme Court in Loving v. Virginia. The State of Virginia made the argument that both races are not allowed to do the exact same thing. It didn’t fly. I can only conclude that you have not read Loving and don’t wish to, on the off chance that it might say something you don’t like.
A court that “chooses” to say there is no gender classification is, bluntly, engaging in judicial activism. The law, on its face, makes a distinction based on a protected class. Per Loving, this is prima facie discrimination, whether or not one group is disadvantaged.
I know you would really, really like to push this under sexual orientation, because that drops the standard to rational basis. You can’t really get around the fact that the law refers to gender, not sexual orientation. Marriage laws do not say “No gay man may marry another gay man.”
I don’t mean to be patronizing, but as a law student, you really need to master the concept of applying legal reasoning to different issues, even if you don’t like the results, even if the subject matter does not at first glance seem to be the same.
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I am not a lawyer, and not much of an historian, but as I understood it, the historical origins of marriage law were concerned with property rights.
When I first started hearing about the issue of SSM, it was in the 90s, and most of the discussion was about how the life partners of individuals dying from AIDS couldn’t oversee their partners’ medical care, and were often barred by relatives from even visiting their partners in hospitals. Had they been married, this wouldn’t have been the case — not legally, anyway. Inheritance laws came up in those discussions occasionally as well, as other matters about joint property.
As for procreation: marriage isn’t necessary for conceiving a child, nor is intercourse needed; heterosexuality isn’t necessary for childrearing; and it’s not necessary for a child’s caregivers to be close relatives. The nuclear family isn’t the only possible family structure.