View Full Version : SS marriage in NY?

02-04-2005, 11:18 PM
http://www.lambdalegal.org/binary-data/LAMBDA_PDF/pdf/378.pdf (pdf of the case)
http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1634 (not a pdf, not the case)

Well, another ruling that same sex marriage should be. Rather than hash over the entire issue again, the issue that interested me most is rather narrow, nay, pedantic even.

In the case, it is mentionedPlaintiffs argue that their exclusion from marriage to each other constitutes discrimination on the basis of sex, because each of them, were he or she of the other sex, would be free to marry his or her partner.And yet, Plaintiffs acknowledge, however, that the exclusion of same-sex marriage treats men and women in exactly the same way.I could not help but grin when I came across this in the decision, and I would love to hear dopers put their minds to this.

On one hand, the Plaintiffs suggest a rather interesting notion regarding whether or not a law discriminates based on sex. The test here would be that if the application of the law changes when the gender of a party changes, then the law is discriminatory. Indeed, outside the context of gay marriage, I find it very hard to see how anyone at all could disagree with such a functional interpretation of "discriminating on the basis of sex."

On the other hand, everyone, plaintiffs included, acknowledge that the law applies to every sex equally in that every woman is able to marry a man, and every man is able to marry a woman. This is another kind of equality we might suggest: "That the law apply equally to all sexes." By that phrasing, discriminating against homosexual marriages is still a non-discriminatory law wrt sex.

Which interpretation seems most sound to you, and why? And though this came to light because of SSM, please frame your arguments in such a way that do not depend on it if you can. This is really an interesting kind of paradox in that both definitions of "non-discriminatory" seem plausible, but SSM shows us that they cannot both be true. One must prevail.

To me, if a law does not discriminate on the basis of sex, then clearly we may change the sex of any or all parties involved and the law's should not change. I find this to be a very strong claim of non-discrimination in that it is truly blind to sex if any and all parties may have any sex (male, female, blue, or whatever) and still have the law apply. Indeed, I can think of no other way to soundly suggest a lack of sexual discrimination except to demonstrate that the effects of a law are not a function of the sex of the parties involved. Lady Justice is truly blindfolded.

Note I'm not trying to discuss the legal issue as such (though I am neither going to request that it not be discussed) but rather the rather narrow issue of which interpretation seems most in line with "not discriminating on the basis of sex" to you, and why.

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