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The Gay Rights Question in Contemporary American Law$
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Andrew Koppelman

Print publication date: 2002

Print ISBN-13: 9780226451008

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226451039.001.0001

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The Sex Discrimination Argument, and Objections

The Sex Discrimination Argument, and Objections

Chapter:
(p.53) Chapter Three The Sex Discrimination Argument, and Objections
Source:
The Gay Rights Question in Contemporary American Law
Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226451039.003.0004

The sex discrimination argument has usually been rejected by the courts, but this does not distinguish it from any other argument that has been made on behalf of gays. The rule of law is always an aspiration, never perfectly realized. Courts have for a long time been predisposed to reject claims made by gay people regardless of their merits. The sex discrimination argument has an important analytic strength, particularly when one compares it to the other arguments that are available. The equal protection argument for judicial protection of gays as such is supported by the long history of anti-gay discrimination, but the indeterminacy of equal protection doctrine makes this strategy an uncertain one. The privacy argument is even less certain, since it is most unclear how we can determine whether any particular conduct is protected by it.

Keywords:   sex discrimination, gays, anti-gay discrimination, equal protection doctrine, privacy argument

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