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Good Piece on the Lasting Effects of Lawrence v. Texas - Mo's Journal
June 20th, 2008
12:43 pm

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Good Piece on the Lasting Effects of Lawrence v. Texas
after five years, in the Slate Jurisprudence column, at http://www.slate.com/id/2193935/.


In critiquing Scalia's prediction that Lawrence would inevitably result in the the legalization of same-sex marriage, the authors have this to say:

"But if premature as a legal matter, Justice Scalia's jump from sodomy to marriage contained a great insight. Once a despised social group has achieved constitutional protection against harmful discrimination — sodomy laws for gay people, Jim Crow laws for people of color — the group will aspire toward full constitutional equality, including recognition of its members' relationships and families. The civil rights movement attacked the segregated schools and facilities of the South before it went after laws barring interracial marriages; indeed, the court did not sweep away anti-miscegenation laws until 1967."

The whole article is worth reading.

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From:kestrelsparhawk
Date:June 20th, 2008 07:54 pm (UTC)
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Thanks for the steer! I was pretty horrified at the mention near the end that attorneys objected to the comparison with miscegenation law because sexual orientation is not immutable. Excuse me? The point of it being wrong to single out a class is NOT that it's immutable -- after all, even race is a socially constructed category.
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From:sabra_n
Date:June 20th, 2008 08:18 pm (UTC)
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Immutability or perceived immutability is one of the categories that make a classification more likely to be considered suspect by the Court, and it is/was a consideration in making race such a classification.

-blue
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From:kestrelsparhawk
Date:June 20th, 2008 08:43 pm (UTC)
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Eeep. Interesting -- does that mean religion is LESS of a protected class than race? (for other reactions, see my reply to Mo, below, but I hadn't heard this. I see now that "perceived immutability" was the other part, which greatly lessens my point that race is culturally constructed.)
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From:sabra_n
Date:June 20th, 2008 09:55 pm (UTC)
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Religious practice gets plenty of protection from the First Amendment, so I don't classify it in my brain with race/nationality classifications- it doesn't work the same way.

Immutability is a factor that goes into determining what makes a class suspect, but it's not the only factor. Another biggie is whether the classification is actually meaningful as to the merit of the people being classified. For race, there's no relation to merit, so it gets strict scrutiny. There are biological differences between the sexes, which is used to justify it getting only intermediate scrutiny. But really, there's no coherent philosophy of equal protection IIRC.

-blue
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From:mofic
Date:June 20th, 2008 08:28 pm (UTC)
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I hate that whole immutable argument whether it's being used for legal or other contexts. I mean, it's basically saying, "Don't discriminate against us - we can't help being gay." Which presupposes that it's better not to be. It's buying into the heterosexist world view.

It reminds me a bit of how I hate it when gay parenting activists respond to the "Don't let them be parents because their kids will be gay" argument with stats showing our kids are majority heterosexual, just like the kids of straight parents. Ummm, we're good parents because our kids aren't gay? Is that really the message you want to give?

And since we're talking immutability, I'll use an icon of a mutant :-).
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From:kestrelsparhawk
Date:June 20th, 2008 08:42 pm (UTC)
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Good choice of icon! I agree totally. S came up with a good soundbite -- "I can't help it" is NOT a moral argument." That also fits what appears to be the difference in discourse between law and society -- Apparently under law, "I can't help it gets higher status? (referring back to blue's comment).

Believe me, anybody respectable who studies race would agree that race is a culturally constructed category, and be able to point at different definitions in each culture to prove it. If it's a contstruct, surely it is therefore by definition not immutable. Wouldn't it be fun to carry that one to the courts?

As a rhetorician, I am in sympathy with the people who get distracted by the "truth" of a point instead of its underlying assumptions, but it's terribly shortsighted.
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