Balkinization: Why the sex discrimination argument failed in California

Why the sex discrimination argument failed in California

Andrew Koppelman

It remains puzzling why the California Supreme Court, in its recent same-sex marriage decision, rejected the most formally powerful argument for its result: the argument that denying licenses to same-sex couples is sex discrimination. The weakness is made clear in this recent column by Steve Chapman, who writes: “while the California Constitution forbids discrimination on the basis of ‘sex, race, creed, color, or national or ethnic origin,’ it does not forbid discrimination on the basis of sexual orientation. The justices somehow found something in the document that the authors thought they omitted.” As I’ve explained earlier, the Court had to work very hard to reject the sex discrimination argument, using tired old arguments that had been used long ago to defend miscegenation laws: since both blacks and whites [both men and women] are equally burdened, there’s no discrimination.

Why did the court reject the cleaner, more theoretically elegant argument in favor of the more convoluted one that the law discriminated on the basis of sexual orientation (which it didn’t; no clerk ever asked applicants their sexual orientation, while they did need to know whether each applicant was male or female)? It insisted that calling the relevant discrimination sexual orientation discrimination was more “accurate” and “realistic.” Why did it do that?

Here’s what the court wrote:

“a statute or policy that treats men and women equally but that accords differential treatment either to a couple based upon whether it consists of persons of the same sex rather than opposite sexes, or to an individual based upon whether he or she generally is sexually attracted to persons of the same gender rather than the opposite gender, is more accurately characterized as involving differential treatment on the basis of sexual orientation rather than an instance of sex discrimination, and properly should be analyzed on the former ground. . . . [I]n realistic terms, a statute or policy that treats same-sex couples differently from opposite-sex couples, or that treats individuals who are sexually attracted to persons of the same gender differently from individuals who are sexually attracted to persons of the opposite gender, does not treat an individual man or an individual woman differently because of his or her gender but rather accords differential treatment because of the individual's sexual orientation.”

In the interracial marriage context, this argument would have sounded very strange. Suppose the Supreme Court, when it struck down laws against interracial marriage in 1967, had adopted this kind of reasoning. Instead of holding that the prohibition was race discrimination, the court would have focused on the group specifically burdened by the law, people who were in interracial couples. Call them “miscegenosexuals.” Now you can see what the reasoning of the California court would look like in this context:

“a statute or policy that treats blacks and whites equally but that accords differential treatment either to a couple based upon whether it consists of persons of different races rather than the same race is more accurately characterized as involving differential treatment on the basis of being a miscegenosexual rather than an instance of race discrimination, and properly should be analyzed on the former ground. . . . [I]n realistic terms, a statute or policy that treats different-race couples differently from same-race couples does not treat an individual man or an individual woman differently because of his or her race but rather accords differential treatment because of the individual's miscegenosexuality.”

The argument would not even have been a bad argument. Certainly members of interracial couples have been subjected to vile and unjust treatment throughout American history. They were prime candidates for judicial protection. But a decision written this way would still have been missing something important.

The difference between the two cases, and the reason the hypothetical is so bizarre, is that everyone understands that the miscegenation prohibition is all about maintaining the structure of racism, so that the idea of a “miscegenosexual” never even occurs to anyone, and indeed strikes most people as weird and racist. I don’t understand the resistance to the idea that the homosexuality taboo is about sexism. Homosexuality and deviation from gender norms (which, of course, are relentlessly hierarchical) are so tightly connected with each other in popular culture that each is normally and easily taken as a marker for the other. A “faggot” or a “dyke” is a person who fails to conform to normal gender norms; the term is routinely applied to people without regard to their sexual behavior.

The court’s reluctance is, I think, evidence that Jack Balkin is right about the dependence of the law on the wider culture in order to determine the crucial question of which arguments are within or outside the bounds of legitimate argumentation. The sex discrimination argument is unfamiliar to people. A few of us have made it in academic journals, but it hasn’t been trumpeted much in the popular culture, and so judges, who one might have expected to be influenced primarily by the soundness of legal argumentation as such, shy away from it. It’s not enough to craft good arguments. You need to be out there, working the media and making these claims repeatedly, thereby making them familiar.

In the end, it may not matter, except for a few law geeks who care about the details of legal argumentation, whether the court uses the best arguments or not. The argument the Court did use, that discrimination against gays is inherently suspect, is good enough. Almost no one reads judicial opinions anyway. If the taboo in question really functions to reinforce sexism, then relaxing the taboo will weaken at least the existing forms of sexism whether courts realize it or not. If the Supreme Court had referred to “miscegenosexuals” in its reasoning in 1967, the taboo on interracial marriage would still have been fatally weakened. On the other hand, today the opinion would look a little silly, and we’d think that it had missed the most important point. That’s not the worst thing in the world, but it’s not a flattering reflection on the court.

Posted 2:05 PM by Andrew Koppelman [link]

Comments:

Because the court never said that people should have the same rights with a woman that they do with a man. It's entirely appropriate for people to have the right to conceive with someone of the opposite sex but not with someone of the same sex.

# posted by

John Howard : 2:36 PM

John:

That reasoning would be relevant if the law at issue were one that prohibited a man from conceiving a baby using the eggs of another man.

But since the law at issue prohibits two men from getting married, and says nothing one way or the other about conceiving children, your argument is irrelevant.

# posted by

Dilan : 3:31 PM

I, as a gay libertarian, have always found the "it's not sex discrimination" thesis to be the one and only talking point against gay marriage that is totally reasonable and utterly inoffensive.

Straight men and straight women are treated equally (i.e., better than gays). Gay men and gay women are treated equally (i.e., worse than straights). That is simply not sex discrimination.

Meanwhile, note that California's anti-miscegenation law did NOT treat the races equally: Blacks could marry, e.g., Asians, Hispanics and American Indians. Whites could only marry other whites (see Page 86 of the decision).

If you (correctly) rephrase the anti-miscegenation law as "no white may marry a non-white," then the fallacy of the "symmetry" argument becomes self-apparent.

That is another reason why gay marriage is better rooted in the anti-miscegenation invalidations than in sex discrimination claims.

# posted by

KipEsquire : 3:36 PM

Right Dilan, but the court is leaving open the possibility that such a law could be written. Conceiving children is one of the rights of marriage, so a law like that would be incompatible. Also, the court doesn't want to say that same-sex couples should have equal rights to a man and a woman, even if the right in question has nothing to do with marriage. Like maybe it has to do with public bathrooms or health clubs or social clubs, which are based on the right to do something in the presence of other people being distinct depending on the sex of the other people present. If there are no other people present, it wouldn't be an issue what sex you were.

# posted by

John Howard : 4:14 PM

Next time, I won't attempt snark. It obviously is lost on some.

# posted by

Dilan : 6:07 PM

Professor Koppelman,

I think this has a lot to do with the politics of recognition. As you and others have persuasively pointed out, anti-gay discrimination is sex discrimination. With marriage restrictions, where A could marry B but for A's sex, that's just more obvious than usual. But that route to recognition suffers not only from being 'unfamiliar,' as you note, but also from seeming to many gay people to fail to acknowledge their group as an equally important, separate, distinctive group, with its own growing social movement, deserving of its own special category of protection like race and sex, not via sex.

I think that a lot of what is going on here is that the court is trying to formulate the core logic of the decision in such a way that it focuses on recognition for the group, and the social movement, whose push for equality is what got us here. (Of course, why so many gay people believe, wrongly in my view, that their struggle has nothing to do with sex discrimination, would take a much longer discussion! I would love to hear your thoughts on it.)

# posted by

Joseph Fishkin : 6:24 PM

In the world I live in, whether a man can conceive a child with another man simply isn't an issue of law or constitutional rights.

# posted by

Champ : 6:36 PM

where was the snark? Did you think "eggs from another man" was a joke? If only! Dude - google "female sperm" or "same-sex conception" and then re-read the CA decision in light of the question of whether to allow that or not.

# posted by

John Howard : 6:40 PM

Why is it "puzzling" that CA, as was the case in various court rulings and civil rights laws ... and general societal understanding ... focused on the more well recognized/accepted route?

The comparison to Loving only takes one so far. There is clearly a "homosexual" group here, right? Formulating some group of those (by birth? etc.) attracted to the opposite race is less sensible, if possible.

Again, why exactly is this so confusing? Now, I realize the force of the gender discrimination argument. But, like those who wanted Roe to go that route, it really isn't currently a realistic path given the situation.

The force of the argument makes the dismissal in that part of the opinion messy. Lawrence suggested equality might be a route, but argued it was prudent to take due process. Other rulings ignore secondary arguments as not necessary, given they were decided on other grounds.

I'm not sure why CA felt obligated to (messily) dismiss the gender route. But, I'm not "puzzled" why it focused elsewhere.

[btw, even if Virginia was consistent and didn't allow Asians to marry blacks, or whatever, the law would be unconstitutional; but that wrinkle does complicate things]

# posted by

Joe : 10:33 PM

# posted by

Larry Fafarman : 5:18 PM

Laws against same-sex marriage prohibit both homosexuals and heterosexuals from marrying a person of the same sex. Hence these laws treat homosexuals and heterosexuals equally and hence do not discriminate on the basis of sexual orientation.

Likewise, laws against polygamy prohibit both monogamists and polygamists from practicing polygamy. Hence these laws treat monogamists and polygamists equally and hence do not discriminate on the basis of marital status.

I hope you were either joking or drinking when you came up with this bulletproof logic.

# posted by

PMS_CC : 10:42 PM

It seems pretty natural to argue that a ban on miscegenation did not provide substantive racial equality, but that the "mandatory miscegenation" of different-sex marriage laws does. The best argument would be that the inequality in this case is purely formal, which doesn't seem that unreasonable to me. You can find a few feminist theorists somewhere who will argue that different-sex-only marriage is really about keeping women down but this is very much a fringe view and it's not surprising the courts aren't interested in going for it.

You are, of course, entirely right about discrimination against gays and lesbians being about gender norms, but the courts haven't been terribly interested in finding that requiring people to adhere to gender norms is impermissible sex discrimination. Price Waterhouse v. Hopkins did go for the plaintiff, but my understanding is that it hasn't been much expanded. Different dress expectations for men and women are still legal and their constitutionality is not in doubt.

# posted by

Unknown : 1:36 AM

men keeping women down or women keeping men down, but sexual reproduction keeping the genetic engineers down. And yes, sexual reproduction, in our species, does divide humanity into humans with wombs that get pregnant and humans that don't have wombs that impregnate them.

The question is, do we preserve that system to preserve male superiority or female superiority or because it is a pretty good efficient system with a lot going for it, and much better than the alternatives? The alternatives are expensive and require lots of regulation and government and will become huge entitlements, even requirements. They won't even guarantee that men and women will be more equal, not with women only able to produce girls and men not having wombs of their own. Perhaps not needing each other to reproduce will make things worse rather than better. And anyway, at a time when millions of people are without adequate nutrition and basic health care and our energy use is obscenely excessive, pursuing alternatives to sexual reproduction are also unethical. Plus, pursuing them will change the way we view children and equality and the other sex. It is good that we all have to cooperate with someone of the other sex to reproduce. It is good that it doesn't use any electricity to do it. It is good that the process causes us to view all people as equals because we were all created the same way, by a man's sperm fertilizing a woman's egg, without any tinkering.

# posted by

John Howard : 7:39 PM

"They won't even guarantee that men and women will be more equal, not with women only able to produce girls and men not having wombs of their own."

I rather doubt that women who are determined not even to use sperm donors are going to be too put out over not being able to give birth to males. And I fully expect we'll have artificial wombs within a decade or so. So the men WILL have wombs of their own, they'll buy them out of a catalog! (Just like many of the women, once they're proven out.)

# posted by

Brett : 8:16 AM

right, already, lesbian couples overwhelmingly choose to have girls when sex selection is available, so most will not mind that they will only be able to have girls. Artificial wombs might indeed make men and women more equal, but that couldn't be achieved until all babies were born from them, and no women still had their own wombs, and even then, it still might not be achieved, there still might be inequalities that remain or that even are heightened.

My point remains: as a method to achieve equality of men and women and eliminate any "system of supremacy" for either sex or orientation, the idea of same-sex conception is really dubious and dumb. Postgenderist" Feminists have implied that women won't be free until women are free from their biological role as mothers, but again, we don't know that it will work, and there are other ways to achieve a better result.
Marriage is the better way to achieve a better result, where one male and one female pair up for life and spiritually and legally become one flesh, for life, sharing bed and hearth. (note the argument against polygamy inherent in this reason for marriage).

# posted by

John Howard : 2:49 PM

@ PMS_Chicago:

[Larry Fafarman]: Laws against same-sex marriage prohibit both homosexuals and heterosexuals from marrying a person of the same sex. Hence these laws treat homosexuals and heterosexuals equally and hence do not discriminate on the basis of sexual orientation.

Likewise, laws against polygamy prohibit both monogamists and polygamists from practicing polygamy. Hence these laws treat monogamists and polygamists equally and hence do not discriminate on the basis of marital status.

Likewise, laws against miscegenation prohibit both blacks and whites from marrying someone of the other race. Both races are perfectly free to marry; they may marry someone of their own race, but are equally prohibited from marrying someone of the opposite race. Neither race is disadvantaged.

That argument went over well in Loving....

Cheers,

# posted by

Arne Langsetmo : 3:03 PM

John, being a libertarian rather than an egalitarian, I'm not particularly concerned with making men and women more "equal", I'd rather just make both more free.

# posted by

Brett : 4:47 PM

well, Brett, allowing same-sex conception won't even make people more free. First of all, same-sex couples will feel coerced to use it as soon as it is offered. It'll just be a question of if they can afford it. And then, because it would open the door to allowing all forms of genetic modification, it would lead to all people feeling coerced to use enhanced or at least screened gametes, because it will be seen as unethical to use natural gametes. It won't be too long before people are not allowed to use natural gametes, it could actually be a crime. At first it will seem like a new option is being offered, but look further down that road and you'll see that it isn't freedom at all.

# posted by

John Howard : 1:28 PM

"First of all, same-sex couples will feel coerced to use it as soon as it is offered."

Being a libertarian, I also have little interest in arguments that people are coerced by having more options, so we ought to 'free' them by restricting the options available to them. Sorry, that's at best nonsense.

You can claim that we'll inevitably lose our reproductive liberty as a result of genetic engineering being used on humans, but the only person I see attacking that liberty right now is YOU.

# posted by

Brett : 2:42 PM

There's a principle called "procreative beneficence" that operates on everyone's moral beliefs which causes people to choose everything offered to them in order to have the "best possible child". It is almost like not having a choice at all. It's like having the choice to drink during pregnancy, sure, some will choose to, but most people feel obligated to quit drinking, and people get mighty upset at anyone they see drinking while pregnant.
And it's not only me, most other countries have banned germline GE, it's only a few psycho countries that are pursuing it. I don't know what is so wrong with the US that so many people here think we should be intervening in the process of people having babies, I think it is a form of guilt.

# posted by

John Howard : 5:56 PM

This reminds me of an old joke.

Three men walk into a bar. The bartender asks the first man, "What'll you have?" The guy responds, "I'll have a beer." The bartender nods and gets the guy a beer.

He turns to the second guy. "What about you, buddy?" The second guy thinks for a second and says, "I'll have a shot of whiskey." "You bet," says the bartender, and he gives the guy a shot of whiskey.

"And you? What's your poison?" the bartender asked the third guy. Without batting an eye, the guy responds, "It won't be too long before people are not allowed to use natural gametes; it could actually be a crime!"

# posted by

PMS_CC : 3:10 AM