Justice Roberts revives an old argument that could save gay marriage

Yahoo Politics ^ | April 28, 2015 | Liz Goodwin

[murron]

The gay rights movement has spent years trying to convince judges across the country that prohibiting same-sex marriage discriminates against gays and lesbians solely because of their sexual orientation.

But on Tuesday, a surprising question from Chief Justice John Roberts revived a very different legal strategy that the gay rights movement had all but abandoned.

[Eagles6]

Mutual masturbation does not equal marriage.

[tallyhoe]

Ok!

[FredZarguna]

It's a weak argument. You are not being denied the license because you are female. You are still free to marry any male who will have you. You are being denied a licence to "marry" another female -- because of her gender and yours, and not merely yours alone. Furthermore, since men face the same restrictions [mutatis mutandis] You cannot argue that the restriction is being applied to a specific class. That is a requirement of Fourteenth Amendment tests.

[Steve_Seattle]

“I have been denied a marriage license because I am female”

Would be a strong complaint for a female denied the license to marry another female, imo."

Not if other (heterosexual) females are allowed to marry.

What this comes down to is a claim that there is no rational basis for making a distinction between male and female in ANY context. If applied consistently, this would require abolishing all female-only athletic teams. If gender means nothing, it means nothing. I wonder if anyone will raise this argument in the gay marriage debate.

[FredZarguna]

As of when?

[ltc8k6]

I still think it’s a good court argument for males or females. Don’t mention sexual orientation in the complaint. Just say the denial is because of your gender, and that’s illegal.

At any rate, I think the horse has left the barn, and gay marriage is here to stay.

[FredZarguna]

You're not being denied the license because of your gender.

[ltc8k6]

That’s a pretty good point.

[tallyhoe]

As of when what? Ginsburg and Sotomeyer? Last week it came out that they had performed Gay marriages and Recused them selves..

[Yaelle]

By that argument, couldn’t all men use the Women rest room?

[ltc8k6]

That is certainly one opinion, of course.

I think it will not be the opinion of the SC, though. :-)

[who_would_fardels_bear]

One of the arguments that Phyllis Schlafly made against the Equal Rights Amendment is that if a man and woman are considered identically equal before the law, then a man marrying a man is no different than a man marrying a woman.

When the Hawaii case came up, she was quick to point out that Hawaii's Equal Rights Amendment had led to a decision at that state's level that she had feared at the national level.

It took legislation to prevent gay marriage from becoming law in Hawaii by judicial fiat.

So whether we like it or not, this is not a completely shocking or unexpected development.

I would point out that Americans rejected the Equal Rights Amendment so it is not the case that men and women are identical under the law.

So this line of reasoning should ultimately fail, unless as has been the case time-and-time again the American peoples' previous decisions have been overturned by activist judges or somnolent congresses.

[Yaelle]

I think that’s him on the left.

[tallyhoe]

My mistake I guess I’m wrong.. But they should!!!

[who_would_fardels_bear]

See my post #52

[who_would_fardels_bear]

See my post #52

[Yaelle]

Why did they both recuse themselves? Are they both gay?

[ltc8k6]

The Hawaii case is mentioned in the article.

[wardaddy]

They have not and will not recuse themselves

They should but they won’t

The left never does the right thing

[ltc8k6]

I wonder if times have changed?

More and more we are hearing about equality of men and women.

Most recently with the Ranger school stories.