Pope Benedict XVI recently issued two important messages, one on the occasion of Christmas and the other in celebration of World Peace Day.  Both messages concentrated on the serious threats “to justice and peace” confronting society in the twenty-first century, including, most prominently, the threat of same-sex marriage.

The Pope warned that, although lamentable in and of itself, the spread of same-sex marriage was symptomatic of a deeper “crisis” in the modern world: namely, the dissolution of traditional sex roles and the rise of feminist ideology.  Before there was same-sex marriage, the Pope asserted, there was Simone de Beauvoir, who paved the way for same-sex marriage by suggesting that sex roles are a product of culture, rather than nature, and that one’s life path ought not to be determined by his or her biological sex.  The Pope called on people of all faiths to resist this feminist “attack” on traditional sex and family roles, and to pursue social policies that reflect and reinforce “gender complementarity,” in marriage and all other walks of life.

            The Pope may not have been aware, when he issued these messages, that he was taking sides in longstanding debate among legal scholars and gay rights advocates about whether discrimination against gays and lesbians should be understood as a form of sex discrimination.  But he was.  Ironically, the Pope’s position in this debate aligns him most closely with feminist scholars, who have argued that much of the disapprobation of homosexuality is a reaction to the way in which it violates gender norms, and that opposition to same-sex marriage is fueled in significant part by a desire to preserve traditional conceptions of men’s and women’s roles. 

If courts were to accept the argument that discrimination against gays and lesbians is a form of sex discrimination, they would almost certainly find such discrimination unconstitutional.  Sex discrimination is subject to heightened scrutiny, and sex-based equal protection law is particularly skeptical of state action that reflects and reinforces stereotyped conceptions of sex and family roles.  But courts have not accepted this argument.  They have almost uniformly rejected it.  Even courts that have sided with gay couples in marriage cases have almost all agreed with the California Supreme Court “that discrimination on the basis of sexual orientation cannot appropriately be viewed as a subset of, or subsumed within, discrimination on the basis of sex.”  The notion that the sex classification in marriage has to do with preservation of traditional gender norms garners support in some high places—but in court, it’s been a pretty clear loser.

            I think, however, that all of the attention devoted to debating whether orientation-based discrimination is a form of sex discrimination has obscured a different and increasingly important relationship between these two forms of discrimination.  Although courts have rejected the argument that discrimination against gays and lesbians is sex discrimination, they have increasingly borrowed—and adapted—constitutional doctrine developed in the context of sex-based equal protection law to explain why discrimination against sexual minorities violates the Fourteenth Amendment. 

Constitutional sex discrimination law rests on an anti-stereotyping principle, which bars the state acting in ways that reflect and reinforce traditional conceptions of men’s and women’s sex and family roles.  Courts have rejected the argument that discrimination against gays and lesbians runs afoul of this principle.  But in recent years, courts have begun to hold that orientation discrimination reflects and reinforces a related set of stereotypes about sexual minorities, also centering on children and families: namely, that they are sexual perverts, that they have no place in, or have a deleterious effect on, family life, and that they present a threat to the nation’s children, through predation, recruitment, or role-modeling. 

Although these stereotypes are not the same as those targeted by sex-based equal protection law, they are frequently complementary; indeed, many of the threats gays and lesbians have historically been understood to pose to children have to do with the proper performance of gender.  Thus, although courts have resisted the notion that discrimination against gays and lesbians is discrimination on the basis of sex, orientation-based equal protection law is developing in a way that is far more symbiotic with sex-based equal protection law than courts’ near-universal rejection of the sex discrimination argument for gay rights would suggest.  Courts have begun to develop, in the context of sexual orientation law, an anti-stereotyping doctrine that is closely akin to the anti-stereotyping doctrine in the context of sex—but that takes aim at a different set of stereotypes.

            I don’t have space in this post to trace the emergence of this new anti-stereotyping doctrine or to demonstrate the growing role it plays in many areas of gay rights law.  Nor do I have space to discuss all of its implications for current litigation, particularly same-sex marriage litigation.  But I want to mention one implication—and it has to do with how we think about the marriage cases.  There is a longstanding debate in the gay rights movement between those who supported the prioritization of marriage and those who feared it would further cement the notion that marriage is special—that it tells us who is worthy of dignity and who is not, that it confers moral legitimacy on relationships and families that otherwise lack this quality, and that its participants are rightly entitled to a host of government benefits of which the unmarried are deprived.  The growing prominence of the anti-stereotyping principle in gay rights law is important because it suggests that gays and lesbians are winning marriage rights not because marriage is special, but because it is not.  Courts have grown increasingly skeptical of the exclusion of gays and lesbians from marriage not because marriage is unique, but because—like discrimination in the context of the military, adoption, child custody, and employment—policies and practices that once seemed natural and innocuous now seem to perpetuate stereotypes about sexual minorities in constitutionally illicit ways.  In invalidating exclusionary marriage laws, courts have begun to recognize not only gays’ and lesbians’ right to equality, but also their right to a certain kind of liberty: the right to be free from state action based on outmoded stereotypes and to shape their lives according to their “own conception of [their] spiritual imperatives and . . . place in society.” (Planned Parenthood v. Casey, 505 U.S. 833, 852 (1992)).