Gabriel responded to my classification argument, but I do not believe he added anything new to the discussion. It seems that we are just running around in circles on this issue, so I will try to rephrase my argument more clearly.
The basic gist of my argument is that whether there is a classification is up to the judge to determine. To be a classification, the law must in some way place the different groups into classes. Those classes must be made up of individuals or groups that have different obligations or rights. If they have the exact same rights or obligations, then there are no classes and hence no classification.
In the case of SSM, we have two distinct ways of looking at the problem. Either the law requires men to marry women and women to marry men and therefore classifies, or it requires both women and men to marry members of the opposite gender and therefore does not classify. Gabriel believes the former while I the latter.
In other words, we can frame the law in two different ways. And how frame it has important ramifications as to whether there's a classification or not.
Gabriel defines classification as "the placement of individuals into two or more different classes based upon some characteristic." I don't disagree. The only question is what are the two classes he is referring to. He obviously believes that we have men in one class, in that they can only marry women, and women in the other because they can only marry men. I argued that we only have one class -- one where everyone can only marry people of the opposite gender.
Judges have discretion to determine if a classification exists or not. This idea is similar to where a judge has to determine the level of abstraction or what legal rule to apply. I believe they should base that determination on whether there was an intention to classify. If the lawmakers wanted to classify (for whatever reason), the judge should find a classification. If not, she shouldn't.
Gabriel argues that this analysis is wrong because there is either a classification or there isn't. I believe this statement is true when the judge a priori finds a classification. Yeah, if the judge believes there is a classification, then whether there was an intended classification is irrelevant. But my whole argument is that whether there is a classification is dependant on how we view the law.
Gabriel believes "the marriage laws classify based on gender is obvious." I disagree. His proof is that whether a transsexual was a male or female had practical ramifications on whether the person had parentage rights. I don't really see how this case is any more illustrative then the standard "Jack can marry Julie but Cindy can't" argument.
In both situations the person cannot marry a member of the same sex. The question of Sterling's sex is relevant because it is determinative of which sex he can marry. If he was female he could not marry a member of the same sex. If he was male, he could not marry a member of the same sex. The question is simply what is the same sex that he cannot marry.
I argued that most marriage laws are designed to classify. I used the term "goal" when I probably should have said "intention" or "purpose." Obviously no law is created for the sole purpose of classification. A law that is created to classify generally classifies for a reason. My point was that the marriage laws of majority of the states were designed to classify based on sexual orientation and therefore we should construe the law in that vein.
Let me make a point about how Loving and McLaughlin are distinguishable from the present case. In the race cases, there clearly was an intention to classify based on race. Although the Courts could have found no classification, that construction would have made no sense. Why pass a law that uses racial language if there's no intention to classify? Obviously the point of the law was to create two classes: Whites who could not marry Blacks and Blacks who could not marry Whites.
In the case of SSM, the law is not designed to classify based on gender; it is designed to classify based on sexual orientation. Therefore the judge should find the law classifies based on the intended classification.
The classification in this case is only sexual orientation because the union is not recognized while a heterosexual union is recognized. Gabriel argues that this logic is wrong for two reasons.
First, it implies that finding one classification precludes the finding of another. I don't deny that the courts could find a classification based on gender and orientation. What I am asking is why they should. They could just as easily find only one.
Second, he points out that we are required to look at the situation from the individual's viewpoint, not the group. This argument maintains that we must look at the members of the union to see if they there is a classification. I don't agree with this statement either. In any given situation a person is treated the exact same way as a member of the opposite gender. If a male tries to marry a male, he cannot. He is treated the exact same way as a person in the exact same situation; that is the law treats him the same way it would treat any person who wanted to marry a member of the same sex.
Gabriel finishes with a few questions:
"If a law required everyone to use an opposite sex doctor, would he "choose" to view that law as using gender classifications?"
Yes, because the intention of the lawmakers was to classify based on gender.
"If the law mandated stiffer penalties for mugging an opposite sex victim, would he "choose" to view that law as using a gender classification?"
Yes, because the intention of the lawmakers was to classify based on gender.
"If the law refused to recognize interfaith marriages would he "choose" to view that law as using a religious classification?"
Yes, because the intention of the lawmakers was to classify based on religion.
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