Ilya Somin continues with this ridiculous and farcical “sex discrimination” argument. And he’s not the only one. How can these people even get a job, let alone keep one in any institution that thinks of calling itself a higher education body?


5:01 AM GMT+0200

[moved to correct VC post] I would reject both the Loving and Craig analogies here as very weak support for a pro-gay marriage holding based on sex discrimination. Loving is based on extending bans on asymmetric race classifications (“blacks can’t vote”) to include symmetric race restrictions (“no interracial marriage”). Loving as race discrimination law stands for a “look-through” principle against symmetric race formulations because of a bias against a race. The Loving analogy for sex discrimination law would be a look-through principle against symmetric sex formulations because of a bias against—a *sex*. NOT against a sexual orientation. The idea that anti-gay marriage laws are a way to keep down women, or men, is ludicrous, but that is what would be needed for a Loving analogy to sex discrimination. A look-through sex principle can only remedy bias re sex, not sexual orientation (unless you assume sexual orientation is a protected class, in which case using a sex discimination approach is redundant).

Similarly, the Craig v Boren analogy is weak. That case involved an asymmetric sex classification (“young men can’t buy beer”). In fact *all* previous cases have involved asymmetric sex classifications! There has never been a case finding a principle against symmetric sex classifications. For Shapiro to say “it is obviously wrong” that symmetric sex classifications might deserve a lower form of scrutiny is inane—because under current law they don’t deserve any scrutiny at all!

Even worse, Loving and Craig aren’t arguments *for* a symmetric sex look-through principle—they are helpful analogies for describing what the law would look like if there *were* such a principle. To invoke them is to point to a gap and say, “look here, shouldn’t we put something here?” It is to beg the question.

This case is clearly about sexual orientation, not sex. Gay marriage bans are not about keeping one sex down. The court should decide if bias against gays should be illegal.

Charlie Feather

6:36 AM GMT+0200

This case is really about sanity and nothing else. Why gay marriage is even being taken seriously says something very troubling about the state of mind of America.

Fyodor II

5/1/2015 8:34 PM GMT+0200

“I think it is actually Whelan who is engaging in “word games” here, not the defenders of the sex discrimination argument.”

ROFL. A lawyer having the audacity of accusing others of engaging in “word games”. The very fact that the SCOTUS has reached logically contradictory positions over matters such as segregation PROVES it is not using the Constitution and well-established interpretive principles as a basis in at least some of its decisions. And, when you consider that it has construed the word “speech” to mean – among other things – disrobing, then it is laughable to see how seriously people like Ilya take SCOTUS cases. What is the upshot of upshot of this latter construction by the court? To sustain its fragile pretzel logic, it is forced to conclude that computer generated child pornography (which will soon be indistinguishable from the real thing) is protected “speech”.

All I can say is that if Jonathan Swift were alive today, he would be pillorying the lot of constitutional lawyers with biting and humiliating satire. They are like the “learned” professors at the Grand Academy of Lagado, learning how to mix paint by smell and soften marble for use in pillows. 

The SCOTUS has NO constitutional authority to MAKE law. And yet, by presuming to answer questions which often cannot be answered by the Constitution (instead of referring the matter to the Congress), it makes de facto law – as it did when it created a generalized right of privacy from the “emanations” and “penumbras” of that document. Try getting a less “august” court to amend your mortgage contract with a bank citing “emanations” and “penumbras” and see if you don’t get laughed out of the building.


5/1/2015 8:39 PM GMT+0200

” A lawyer having the audacity of accusing others of engaging in “word games””

Do you know who Ed Whelan is? Well, calling him “other” is probably the nicest thing most people say about him in public (there’s a reason the most pleasant nickname for him is “stopped clock” if you know what I mean)… but still, he’s an attorney. And a big boy.

“Try getting a less “august” court to amend your mortgage contract with a bank”

Oh…. I see. Next time, Fyodor, spend more time working to make those mortgage payments, less time making bad internet comments, and then those nasty bank attorneys won’t have to foreclose on you.

Fyodor II

5/1/2015 8:41 PM GMT+0200 [Edited]

“Next time, Fyodor, spend more time working to make those mortgage payments, less time making bad internet comments, and then those nasty bank attorneys won’t have to foreclose on you. ”

ROFL. Yeah, I remember when I had my first beer.

Charlie Feather

5/1/2015 7:47 PM GMT+0200

If sex discrimination is not permitted where it concerns marriage, does this mean that close family members might now be able to marry? Let us consider persons A and B who wish to marry. Is it rational to deny them marriage if they were siblings? Why? Because of the risk of birth defects? But what if the persons are two brothers or two sisters? There is no risk of birth defects in these cases, so how would it be rational to deny them marriage? The law would either have to presume that person A and B are male and female, which would impermissibly discriminate on the basis of sex, or allow A and B to marry even if they were brother and sister. Such are the logical implications of eliminating the gender classification.

The fact is that the same presumptions concerning opposite-sex relationships and same-sex relationship cannot be equally applied. That is where one must look: what are we presuming or assuming about the respective relationships such that one legal situation might apply to both? Evidently, one cannot presume procreation for both types of relationships. Might it be love? But the law has no business with the love lives of people. Might it be that both want to benefit from the legal advantages of marriage? Then marriage exists as a subsidy for couples. Might other domestic relationships not also have a right to these legal advantages as well? And why should government provide these subsidies at all?

Same-sex marriage will open a can of snakes that will quickly become unmanageable, which will be ascribed as a failure of government to maintain an orderly and well regulated society.

Sam Gompers

5/1/2015 7:52 PM GMT+0200

Not to worry, our betters in black will be able to gerrymander their reasoning around their desired and undesired outcomes.

Thats the great thing about concluding your outcome them working backwards on a justification.


5/1/2015 7:55 PM GMT+0200

I would presume that laws forbidding incest would still hold regardless of the gender of the siblings, on the basis that the state is not required to narrowly tailor the incest statutes, and that post-Lawrence jurisprudence provides no constitutional cover for differential criminalization based on the sexual orientation of the participants.

Sam Gompers

5/1/2015 7:56 PM GMT+0200 [Edited]

There is no harm in two gay brothers having gay sex or getting gay married. 
In fact doesn’t it harm their dignity to declare their love lesser than everyone else’s?


5/1/2015 7:59 PM GMT+0200 [Edited]

But I think the argument is, if same-sex marriage is constitutional right, what is the rational basis for an incest statute that prohibits two brothers (or a father and son) from marrying?

(Or, if the Court embraces a substantive due process rationale, why are relatives entitled to any less?)


5/1/2015 8:11 PM GMT+0200

Not to mention that they’ve been screaming all along that marriage has nothing to do with sex. At the core, their arguments are intellectually dishonest. They’re just like the global warming crowd.


5/1/2015 8:13 PM GMT+0200


“But I think the argument is, if same-sex marriage is constitutional right, what is the rational basis for an incest statute that prohibits two brothers (or a father and son) from marrying?”

Concerns about consent.

Charlie Feather

5/1/2015 7:32 PM GMT+0200

“To the contrary, people who are sterile or unable to engage in biological reproduction because of age have always been permitted to marry.”

The legislative presumption is that opposite-sex couples are fertile and will procreate. There is no inquiry into the fertility of opposite-sex couples or about their intentions to have children, nor does the law set an upper limit on age. That is why older opposite-sex couples or infertile ones or those with no intention of having children are also permitted to marry. It all has to do with what is being generally presumed about opposite-sex couples. This general presumption, of course, cannot be rationally applied to same-sex couples.
L Pseudonymous

5/1/2015 7:39 PM GMT+0200

Why can that presumption be rationally applied to an 80-year-old couple (or any couple one of whose members is an 80-year-old woman)? Is an 80-year-old woman any more likely to bear children to her husband than a 30-year-old woman to her wife? The law can presume fictions–that’s why the “Fertile Octogenarian” is a thing. If the law can presume fictions, why not the “Fertile Lesbian”?


5/1/2015 7:48 PM GMT+0200 [Edited]

Do you really not see the difference (as it relates to reproduction) between a 50-year old woman having sex with a man and a lesbian doing whatever she does with another woman?


5/1/2015 7:55 PM GMT+0200

“whatever she does”

Language tip: “having sex” still applies in this case.

Sam Gompers

5/1/2015 7:58 PM GMT+0200

Not to worry Paul, for soon we will have to declare the sex between two men as procreative and heterosexual if one of them sincerely believes themselves to be a woman.


5/1/2015 10:19 PM GMT+0200

Sam Gompers: 
Excellent point! 
We have now descended into the rabbit hole when it comes to sex, marriage, and who would like to be what! 
I’m late, I’m late for a very important date…

Sam Gompers

2:55 AM GMT+0200

It would be nice if these crazed disorders didn’t affect anyone else, but they do.

Sam Gompers

5/1/2015 5:11 PM GMT+0200

Point of correction. Gay marriages are not banned. Any two people can declare themselves gay married and no one will be fined or jailed.

Polygamous marriages ARE banned. A polygamous marriage will result in fines and or jail time.

Gay marriages are not recognized. This isn’t about a right to marry your lover, its about the right to have the state recognize and sanction it. Marriages existed long before a license was granted.

Its important to note that no police will enter into a home a gay married couple and arrest them for living as a gay married couple.

Rev. Arthur Kirkland

5/1/2015 5:14 PM GMT+0200

Its important to note that no police will enter into a home a gay married couple and arrest them for living as a gay married couple.

Not for lack of trying.

Sam Gompers

5/1/2015 5:16 PM GMT+0200

Did you get arrested? Is that where your anecdote comes from?


5/1/2015 5:25 PM GMT+0200

John Lawrence was.

Sam Gompers

5/1/2015 5:27 PM GMT+0200

Lawrence was arrested for declaring himself gay married?


5/1/2015 5:32 PM GMT+0200

No, you’re right. John Lawrence was only arrested for engaging in gay sex.

Sam Gompers

5/1/2015 5:48 PM GMT+0200

I knew a guy once who was arrested for doing stuff too.


5/1/2015 6:31 PM GMT+0200

As he should have been. Anal sex should be illegal for everyone, homosexual and heterosexual.


5/1/2015 6:34 PM GMT+0200

That’s quite a statist thing to say, for someone who isn’t a communist!


5/1/2015 6:36 PM GMT+0200

Communists believe in using the state to regulate the economy, which shouldn’t be regulated. A filthy, perverted, sexual practice that damages society, spreads disease, and mocks our culture and tradition is an appropriate thing for the state to be regulating.


5/1/2015 4:50 PM GMT+0200

@NALWC: That sincere belief isn’t based on whether the APA classifies homosexuality as a disorder or not; it’s based on direct observation of gays and lesbians in our communities. Evidence, not authority.


5/1/2015 4:52 PM GMT+0200

You mean like the people dancing half naked at the parades? Or do you refer to people like David Mangum who had sex with 300 men while infected with HIV? Or maybe you’re referring to the fact that the 1-2% of the population who are homosexual males make up 75% of new HIV cases?


5/1/2015 4:56 PM GMT+0200


I can’t speak for Scott_MI, but the reason I think we should treat gays and lesbians as human beings is based on my observation that they are human beings.


5/1/2015 4:59 PM GMT+0200

Of course, and we should treat people with Down Syndrome like human being too. That’s not the same as to say that we should validate that it’s such a great thing to have Down Syndrome.


5/1/2015 5:02 PM GMT+0200

I have never interpreted laws that allow schizophrenics to marry, as validating that it’s a great thing to be schizophrenic. Rather, that’s just part of treating schizophrenics like human beings.

You didn’t think this one through.


5/1/2015 5:05 PM GMT+0200

Schizophrenics may marry in accordance with marriage laws in their states. So may people who identify as homosexuals.

You didn’t think this one through.


5/1/2015 5:06 PM GMT+0200

Paul_revere already said it. You completely ignore the fact that homosexuals are not affected by traditional marriage laws except under a “disparate impact” argument.


5/1/2015 4:22 PM GMT+0200

“I think opponents of SSM as a Constitutional right (please note that I do not say they are opposed as a matter of public policy) are OK with the argument that SSM bans discriminate based on sexual orientation (because that is what it is)”

I disagree with this, Terp. I think it is plain that marriage statutes don’t discriminate on the basis of sexual orientation.

The “fundamental right” theory is the only one that makes any sense. (Of course, it only makes sense if your framework for interpreting the Constitution is very fluid.)

Josh Rosenbluth

5/1/2015 4:24 PM GMT+0200

paul_revere: I think it is plain that marriage statutes don’t discriminate on the basis of sexual orientation

You believe this even though a gay person can’t marry her lover and a straight person can?


5/1/2015 4:34 PM GMT+0200

Paul – I appreciate the honesty, but I can’t get my head around that idea. SSM bans discriminate against SS unions and the only people who want them are people with same sex sexual orientation.
I am OK with that in a Constitutional sense because discrimination is fine, its what most law is about. If we as a society think discrimination based on sexual orientation is a bad or unproductive thing, we can pass laws prohibiting it, but its not part of the Constitution (yet).


5/1/2015 4:39 PM GMT+0200 [Edited]

Josh (and Terp): Per Ilya’s logic, that framing is totally wrong-headed. The question should be posed as follows:

Ed is gay. Jim is straight. Ed and Jim can both marry Sarah. Neither Ed nor Jim can marry Tom. Hence, no sexual orientation discrimination.

(That is consistent with my approach because nobody has a categorically right to marry “whoever they want.” Incidentally, I also think it would be difficult to allege sexual orientation discrimination when sexual orientation is a self-determined identity–in the sense that how can you say I am discriminating against you on the basis of your sexual orientation when I don’t (and can’t) in any meaningful sense know your sexual orientation? All I can know is your sexual behavior.)


5/1/2015 4:43 PM GMT+0200

If there were a law that permitted homosexuals to marry, but banned heterosexual marriage, I would correctly conclude that someone was attempting to discriminate against me.


5/1/2015 4:52 PM GMT+0200

“Thus, I see both sides agreeing that SSM bans discriminate based upon sexual orientation so the resolution of the case should reflect that reality.”

Um, no. I have seen all sorts of arguments from opponents of SSM, including the whole “Gay people can marry anyone of the opposite sex they want.”

IOW, you are completely missing the point. There is very little legal analysis going on. Instead, it a result in search of analysis. And on this, I give props to Somin. When he first proposed the gender discrimination argument, I was skeptical; but, like Roberts, I have warmed to it from a legal point of view.


5/1/2015 4:55 PM GMT+0200

But Somin’s argument is no less nakedly “a result in search of analysis” than anything else.

In fact, considering that the Constitution has existed for a long time without anybody thinking that it prohibited traditional marriage laws, I would humbly suggest that the pro-SSM side is much more in the business of “a result in search of analysis” than the traditional marriage side.