Monday, May 04, 2015

Defending the sex discrimination argument from the left

Andrew Koppelman

Some of the recent criticisms of the sex discrimination argument for same-sex marriage have come from the left, arguing that the argument does not do justice to the reality of discrimination against lesbians and gay men.  The argument in fact does not do it justice, but this is true of legal argument generally.  I responded to such arguments in some detail in a 2001 article, responding to criticisms from Edward Stein.  In light of the renewed interest in the sex discrimination argument, I'm posting that article onto SSRN.  It is here.  Here is the abstract:

Edward Stein’s is only the latest and most systematic of a growing number of criticisms of the sex discrimination argument, from the left and the right. Stein’s doctrinal objections to the argument misconceive the reach of present doctrine, which treats all sex-based classifications with deep suspicion. His empirical doubts misapprehend both the argument’s claims and the enduring connections between heterosexism and sexism. His only persuasive claim is his moral objection, which argues that the sex discrimination argument ignores, and may render invisible, a central moral wrong of anti-gay discrimination. This is a profound moral difficulty, but it is one that is present in almost any legal argument, and perhaps in language as such. It therefore cannot be an objection against any particular argument.

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