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Notes -
Couldn’t you make up similar deep philosophical questions about race? What counts as a race, is race different from ethnicity? All the same questions about marriage would apply, too.
You’re correct to note they didn’t matter, because the important issue was equal protection under the law. Government guarantees on marriage had to be extended in a race-blind manner. But I’d say the same for gay marriage! The civil right of marriage ought to be extended in a sex-blind manner.
It’s trans issues which are the odd one out. They can get married, can use existing infrastructure. They’re staking claims on social prestige rather than securing some otherwise-inaccessible right.
I mean, I had a whole paragraph immediately before that one:
I even said later:
So sure, nowadays, people are trying to ask more deep philosophical questions about race, along the lines of what you're talking about. But I don't think this was so apparent at the time.
I’m not sure how many of those questions were being asked at the time. My instinct is that there were enough people in the conversation for it to include those topics, if only as a status differentiator.
What I’m trying to say is that the gay marriage debate is more similar to that one. The correct response to a white supremacist trying to lifeguard the gene pool was “no, everyone gets equal protection under the law.” Likewise, the response to a fundamentalist trying to defend marriage was “nope, still equal protection.” This was true whether the opposition was making a practical or philosophical argument.
The trans debate hinges more on definitions than either of those cases.
That could have possibly been a response. Again, impossible to find my old comments from legal blogs back at that time, but I have a clear memory of writing a comment where I considered various possible grounds on which the Court could have ruled in favor of Obergefell. I concluded that the one that would have made the least hash out of the law would have been to just drop EPC and be done with it (this would have required a little bit of effort, because of the societal context, but could have been done relatively simply). But that's not what we got. We got a hash. And it's not surprising that we got a hash, because that's where the state of the discourse was at the time. It wasn't just a simple, clear-cut question without any deep philosophical import. It was absolutely considered to be deeply intertwined with these issues of sex, the nature of sexual behavior/orientation, identity, nature/nurture, and the purpose of marriage. I think the easiest and best evidence of this, if you simply disbelieve my recollection, is to read both the majority and dissenting opinions in Obergefell. In contrast, Loving was simple, to the point, and unanimous. The sole concurrence makes the reasoning even more simple and concrete - racial classifications are just bad, mkay.
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