LGBT
In reply to the discussion: Elena Kagan says: [View all]JDPriestly
(57,936 posts)In other words, race is an immutable condition, therefore you cannot be deprived of a right based on that immutable condition.
Similarly, your gender is an immutable condition. You can change it through surgery, but you are born with it and it is a condition that can only be changed with great difficulty. It is immutable.
If the right to marry cannot be denied based on race because race is an immutable condition, then it cannot be denied based on gender which is also an immutable condition.
Denying marriage to two men or to two women is denying it based on gender.
This is confused by the fact that so many GLBTs have thought of their right to marry as same sex marriage as opposed to heterosexual marriage. In every marriage relationship there are two people who decide to marry. That is the essence of marriage. If you cannot discriminate based on gender, then you cannot discriminate because the two fiances are men or women. That's how I see it.
But Loving v. Virginia has been interpreted for generations of lawyers to mean that marriage is a fundamental right. To say otherwise is to overturn some pretty basic law. This is first year law school stuff.