Friday, May 01, 2015

The sex discrimination argument for same-sex marriage, in full

Andrew Koppelman

At the oral argument in the Supreme Court's same-sex marriage case this week, Chief Justice John Roberts asked:  “if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t.  And the difference is based on their different sex.  Why isn’t that a straightforward question of sex discrimination?” That question has generated renewed attention to the sex discrimination argument.  Ilya Somin reviews some of what's been written in the past few days, and capably responds to it, here.

All of the argumentative moves that are being made now, and others that people will probably think of in the next few weeks, are considered in an overlong article I wrote in 1994.  It is available here.  A critical response to the resistance of lower courts to the argument is also available, here.

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