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33 Comments Wednesday, July 13, 2005 [Eugene Volokh, July 13, 2005 at 7:26pm] 0 Trackbacks / Possibly More Trackbacks Would Recognition of Same-Sex Marriage Also Mean a Ban on Private Discrimination, if the made in japan theory is that sexual orientation discrimination made in japan is a form of sex discrimnation? Many proponents of same-sex marriage rely (at least in part) on made in japan this theory, and at least one judge has accepted it. If Jane is barred from marrying Kate but is allowed to marry Larry, the argument goes, that’s sex discrimination -- the law is considering Jane’s, Kate’s, and Larry’s sex in deciding whom they may marry. Under similar circumstances, bans on interracial marriage are treated as race discrimination; therefore, bans on same-sex marriage should be treated as sex discrimination. Let’s assume that this argument is indeed accepted, and courts hold that traditional marriage rules violate the Equal Protection Clause (or a state Equal Rights Amendment).
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