A Stitch in Haste

A noteworthy blawger wonders why the "gay marriage bans are sex discrimination" argument never, ever works, not even in California:

It remains puzzling why the California Supreme Court, in its recent same-sex marriage decision, rejected the most formally powerful argument for its result: the argument that denying licenses to same-sex couples is sex discrimination. ... [T]he Court had to work very hard to reject the sex discrimination argument, using tired old arguments that had been used long ago to defend miscegenation laws: since both blacks and whites [both men and women] are equally burdened, there's no discrimination.

As I noted in a (slightly revised) comment there:

I, as a gay libertarian, have always found the "it's not sex discrimination" thesis to be the one and only talking point against gay marriage that is totally reasonable and utterly inoffensive.

Straight men and straight women are treated equally (i.e., better than gays). Gay men and gay women are treated equally (i.e., worse than straights). That is simply not "sex discrimination."

Meanwhile, note that California's anti-miscegenation law (like the Virginia version struck down in Loving*) did NOT treat the races equally: Blacks could marry, e.g., Asians, Hispanics and American Indians. Whites could only marry other whites (see Page 86 of In re Marriage Cases**).

If you (correctly) rephrase the anti-miscegenation law as "a non-white may marry outside his race, but a white may not marry outside his race" then the fallacy of the "racial symmetry" argument becomes self-apparent.

That is yet another reason why the right to gay marriage is better rooted in the anti-miscegenation invalidations than in sex discrimination claims.

That's my ruling -- any dissents?

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*Loving v. Virginia, 388 U.S. 1 (1967)
**In re Marriage Cases, No. S147999 (Supr. Ct. Cal., May 15, 2008) (PDF - 172 pages)