{"id":1387,"date":"2005-03-02T00:25:45","date_gmt":"2005-03-02T08:25:45","guid":{"rendered":"http:\/\/www.amptoons.com\/blog\/archives\/2005\/03\/02\/galios-sex-discrimination-and-sexual-orientation-discrimination-are-the-same-thing\/"},"modified":"2005-03-02T00:25:45","modified_gmt":"2005-03-02T08:25:45","slug":"galios-sex-discrimination-and-sexual-orientation-discrimination-are-the-same-thing","status":"publish","type":"post","link":"https:\/\/amptoons.com\/blog\/?p=1387","title":{"rendered":"Galios: Sex Discrimination and Sexual-Orientation Discrimination Are The Same Thing"},"content":{"rendered":"

Towards the beginning of this month, Jack Balkin outlined five theories <\/a>the high court of New York State could use, if they legalize same-sex marriage. Here’s the first theory Jack mentions:<\/p>\n

(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.<\/p>\n

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.<\/p><\/blockquote>\n

On Galios – which is, bar none, the blog with the best analysis of same-sex marriage issues – Gabriel disagreed<\/a> (emphasis added by Amp):<\/p>\n

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. <\/strong><\/p><\/blockquote>\n

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:<\/p>\n

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.<\/p><\/blockquote>\n

Gabriel’s post<\/a> has much more.<\/p>\n

While I’m at it, I can’t recommend highly enough his most recent post, Discrimination and Intent<\/a>, 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

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 … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[31,112],"tags":[],"class_list":["post-1387","post","type-post","status-publish","format-standard","hentry","category-feminism-sexism-etc","category-same-sex-marriage"],"_links":{"self":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/1387","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1387"}],"version-history":[{"count":0,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/1387\/revisions"}],"wp:attachment":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1387"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1387"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1387"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}