Moriarty,
“I’m not sure if you missed the first 4 pages of this thread but the argument as to why gay marriage would be allowed and not bigamy was already presented. It’s very simple. Sex cannot be used as a sole discriminitory factor, the number of people in a group can.”
I see. I shold have narrowed who I was talking about. My point was that what was being discriminated against was not sex, but sexual orientation. Traditional marriage laws are not setting up one set of rules for men and a different set of rules for women - which is the basis of discrimination based on sex.
“That’s not the least bit arbitrary.”
Hmmm.
“That is not arbitrary. It’s not gut instinct. It’s based on classes that are defined as being protected by the constitution. The argument is the gay marriage is gender discrimination. Don’t you see that?”
Absolutely not - and that is my point. Sexual orientation is not a protected class - yet.
“Gender and race have protected status. The size of a group does not have protected status. Familial relation does not have protected status.”
Yes, but in being serious, gay marriage being dressed up as gender discrimination is nothing more than a stalking horse attempting to create a higher threshold of protection. The dividing line on traditional marriage and non-traditional marriage is not based on sex at all. It would be if the law permitted gay men to get married, but not lesbians.
Do you see the difference? Both sexes are treated equally in traditional marriage - both sexes must follow the ‘opposite sex’ rule in order to have a union formally recognized by the state. Our Equal Protection jurisprudence deals with disparity between the sexes - as in, men get a privilege that women don’t, or vice versa. Tell me - which ‘sex’ is being discriminated against in traditional marriage? Men? Or women? I await your answer.
“Again, if you want to argue that gay marriage is not gender discrimination then fine (BB has done so very effectively). The argument has its flaws and may not be sound, but stop pretending like bigamy and incest are fair game under that argument.”
It is fair game. Anyone who thinks that homosexuals should have the same right as heterosexuals and that a disparity between these two groups in marriage is an Equal Protection problem - which, undoubtedly, this is, not an issue of sex - then they must explain, why under Rational Basis, homsexuals should enjoy the privilege but not other forms of non-traditional relationships. If, as a non-sex based discrimination, traditional marriage fails the Rational Basis test, I merely want to know why other non-traditional ones would pass.
But, Boston makes a great point - judges could conceivably create a new suspect class and all this is academic. But as of right now, since they have not, we debate the concept as is.
“The only way bigamy would be fair game (under the gender discimination argument)”
I never remotely suggested that bigamy is comparable to the gender discrimination argument. I think the gender argument awfully attenuated, and I said so previously. I was referring to this issue being handled at the Rational Basis level without protected classes.
“I agree with you that “everyone has a right to happiness” and “it doesn’t hurt anybody” arguments do make bigamy and incest fair game (and generally don’t make sense in and of themselves), but don’t act like those are the only arguments being presented here.”
Perhaps I shouldn’t have said ‘everyone’, but my gist was to debate with the people that were offering ‘same rights for homosexuals’ as their reason for gay marriage, rather than the ‘traditional marriage discriminates based on sex’ defense.