Bans on same-sex marriage aren't discrimination on the basis of sexual orientation

[kiahzero]

In fact, most so-called "discrimination on the basis of sexual orientation" isn't. It's discrimination on the basis of sex.

Looking at the issue of same-sex marriage clearly displays the issue. A woman and I decide that we want to bind ourselves in legal marriage. There are two cases. In case A, I happen to be male. We are legally allowed to be married. In case B, I happen to be female. We are not legally allowed to be married. The only distinction between the two cases is my sex; therefore, the only discrimination that can be happening is discrimination on the basis of sex. However, courts often argue that this is not the case, that the discrimination is on the basis of sexual orientation. This argument is easily defeated by changing the hypothetical slightly. Let's say that in case A, I happen to be a homosexual male, rather than a male of unspecified sexual orientation (presumably heterosexual). In case A, I am still allowed to get married. Therefore, this cannot be discrimination on the basis of sexual orientation. It must be discrimination on the basis of sex.

This principle runs deeper than just same-sex marriage, however. Most workplace discrimination that is classified as "discrimination on the basis of sexual orientation" is in fact discrimination on the basis of sex. In Price Waterhouse v. Hopkins, the U.S. Supreme Court held that discrimination on the basis of nonconformity with expected gender roles is prohibited under Title VII's prohibition against "discrimination on the basis of sex." In that case, it was held that a firm could not discriminate against a female employee who was seen as too masculine. Given that, it's important next to consider what sexuality means in society. One of the most fundamental gender roles in our society is who you are allowed to love. Men are expected to fall in love with women, and women with men. In our society, anything other than strict heterosexuality is seen as a violation of gender norms. Therefore, discrimination because one is not heterosexual, or even perceived to be not heterosexual, is a form of discrimination on the basis of nonconformity with expected gender roles. As the Supreme Court tells us, that is discrimination on the basis of sex.

This is more than just an academic word game. It explains why men who don't live up to the masculine "ideal" are perceived as gay, and why women who don't live up to the feminine "ideal" are perceived as lesbians. It also plays a part in understanding the fascination with "lipstick lesbians" - it seems as though once you've flouted that fundamental gender role, people expect you to flout all of them.

It also means that in any legal analysis, "discrimination on the basis of sexual orientation" by the government needs to be held against the same level of scrutiny as discrimination on the basis of sex. Bans against same-sex marriage are unconstitutional - any judge who would rule otherwise is doing so out of their own bigotry, not out of a rational legal analysis. It means that "discrimination on the basis of sexual orientation" is already illegal, and the courts can dismiss the tortured reasoning that says that discrimination on the basis of sex is acceptable, so long as you refer to the target as a homosexual while you do it.

[kiahzero]

1. I fail at writing threads that attract interest.

One kick to see if anyone cares.

[mainegreen]

2. Actually, I think because it was well thought out and clear

you failed to elicit controversy.
Not a bad thing at all.

[DemocratSinceBirth]

3. Can't We Have Civil Unions For Everybody

Then if the Court prohibited a same sex couple from getting a civil union they would be in violation of the Fourteenth Amendment which provides due process for everyone...


Defining marriage is a role for the church.

[kiahzero]

11. That'd be outstanding.

Sadly, it'd be much harder to beat the argument that "Marriage is under attack" if we pushed for that. Once again, sound public policy is superceded by soundbites.

[porphyrian]

4. I think that's technically correct, but it isn't really necessary to split that hair.

All Americans should have equal rights within the law.

The problem with using sex in laws(gender may be a better term to use) is that it presumes only two categories - male and female, which does not accurately reflect the reality that gender, and sexual orientation for that matter, is a spectrum. As with the government's arbitrary categories for race, we are in serious need of a modern, more effective way of labeling gender, if it really need labeling at all.

[kiahzero]

10. "Sex" has been determined to include "gender."

I agree that there's a wide spectrum of gender expression. I don't think that there needs to be a way to label the various points along the spectrum, because it shouldn't matter in most cases.

[Orsino]

5. It's not one or the other. It's both.

Otherwise, entirely valid.

[sinkingfeeling]

6. You are correct. The point I like to make is that it shouldn't matter.

All people should have equal rights and it doesn't matter what sex you are, what kind of sexual partners you like, what color your skin is, or whom you choose to worship or not.

[SmokingJacket]

7. I've been saying this for years.

Saying I can't marry a woman, but I *can* marry a man, is just plain sexual discrimination.

Heck, a gay person is allowed to marry -- just not a person of the same sex! :crazy:

There is NO legal justification for the banning of gay marriage -- PERIOD. NJ made the right, and obvious, decision.

[kiahzero]

8. I think three justices made the right decision.

I think four justices in the majority weren't willing to make the right decision, which is why they hedged.

[originalpckelly]

9. Techinally correct, and people should call it that...

it isn't that is it? It is discrimination based upon the sex of a person, not their sexual orientation. Very good catch!

[readmoreoften]

12. To a degree I think that's a bright argument.

For example, my partner is a very butch lesbian who sometimes considers transitioning to a male identity. If she did so, we would be able to get married. However, we would ONLY be able to get married if she had the rare, expensive, and dangerous transsexual surgery of having her vagina removed. Many, many transmen go through hormone therapy (so they can grow facial and body hair and deepen their voice) as well as chest reconstruction surgery to create a masculine chest. Any sort of "bottom surgery" is extremely expensive ($30-100,000), risky, and in most cases useless.

It is sex discrimination and a marriage tax.

[Behind the Aegis]

13. You make some very good points.

I always wondered what would happen if a gay couple tried to get married, then were denied, then sued on the basis of discrimination of sex. I thought about this back in the late 80's when I was starting college. If a man has the right to marry a woman of legal age and not a close relative, shouldn't the same principle apply if he chose to marry a man that fell into the same categories?

[kiahzero]

14. There have been cases where it happened

In the late 1980s, the U.S.S.C. summarily affirmed a lower court case, Baker v. Nelson, "for want of a substantial federal question." Until the Supreme Court is willing to revisit the question, there will be no action in the federal courts on this issue.

However, change has to start somewhere. I'm hoping to write a law review article on this very topic at some point in the near future (if someone hasn't already done it and I just haven't found it), but I think that getting laymen to change the way they frame this issue would be helpful as well.

[Monomorphic]

15. I think its discrimination on the basis of religion

Repukes are discriminating because their religion tells them to. That's discrimination on the basis of religion if i've ever seen it.