Marriage equality and the sex discrimination argument

Guest Blogger

For the Balkinization symposium on William N. Eskridge, Jr., and Christopher Riano, Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020).

 Andrew Koppelman

During the oral argument in Obergefell v. Hodges, Chief Justice Roberts observed:  “I’m not sure it’s necessary to get into sexual orientation to resolve this case.  I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”  He ended up dissenting from the Court’s decision granting the right of same-sex couples to marry, but his dissent did not explain how he could answer the sex discrimination argument.  He evidently didn’t think he needed to address it, because Justice Kennedy’s majority opinion likewise ignored it.  This past term, Roberts joined the majority in Bostock v. Clayton County, which interpreted Title VII to protect gay people on the basis of the identical argument.  Perhaps these positions form a coherent whole, but I don’t understand how they could.

In the debates over same-sex marriage, I’ve had a paternal interest in the sex discrimination argument.  I coauthored an amicus brief in Obergefell, which Roberts evidently was referring to.  I had been saying this for decades.  “If Lucy is permitted to marry Fred, but Ricky may not marry Fred, then (assuming that Fred would be a desirable spouse for either) Ricky is being discriminated against because of his sex.”  Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208 (1994).  Under long-established Equal Protection doctrine, laws that discriminate on the basis of sex are subject to heightened scrutiny, presumptively unconstitutional unless the state can show that they are substantially related to an important government interest.  One did not need to expand the amorphous boundaries of substantive due process.  Nor did one need to claim that sexual orientation is a suspect classification – an argument that isn’t helpful in this context anyway, since marriage laws that exclude same-sex couples discriminate on the basis of sex, not sexual orientation.

Eskridge and Riano’s marvelously comprehensive study shows that the sex discrimination argument is a bit player in this drama, an attendant lord, one that will do to swell a progress, start a scene or two.  It turns up from time to time in the decisions, sometimes very consequential ones.  But litigators hesitated to use it, and in the end the Supreme Court ignored it, relying instead on fuzzy pronouncements about dignity.

The argument, which was already apparent to some of the pioneering writers on gay rights (10), was raised in some of the earliest, unsuccessful marriage cases (Eskridge and Riano, 15, 23).  It first was taken seriously by a judge in 1993, when the Hawaii Supreme Court held that a law restricting marriage to opposite-sex couples came within the scope of the prohibition on sex discrimination in the equal protection clause of the state constitution.  Even in that case, the argument had not been made in the briefs.  The court raised it sua sponte.  (88)  Later lawyers in the various marriage cases shied away from it.  In Vermont the litigators were impressed by it (172), “but that argument bombed at a practice moot.” (180)  Attorneys in California were likewise tempted (297), but again were persuaded that judges would not see it.  Some courts ruled in favor of same-sex couples while expressly rejecting the sex discrimination argument.  (307-08, 346-47) 

Even judges favorably inclined toward same-sex marriage resisted this argument.  Eskridge and Riano report that “one of us participated in a program where even a liberal US Supreme Court justice was unable to understand how discriminating against a gay man treated him differently because of his sex (and not just because of his sexual orientation).”  (297)  Prof. Eskridge tells me that this justice, when the argument was fully explained, responded by saying that it was just a lawyer’s trick.

The resistance to the sex-discrimination argument continues to puzzle me.  Discrimination against gays, we are told, is really about sexual orientation and therefore not about gender. I can make no sense of the preceding sentence. It’s really both.  One can hold both those thoughts in one’s head at the same time.

The homosexuality taboo in American culture is closely intertwined with ideals of gender appropriateness.  Opponents of same-sex marriage, and courts that rejected the sex discrimination argument, inadvertently confirmed it.  Vicious stereotypes of gay people as disgusting perverts, which were ubiquitous in the earliest debates about same-sex marriage, were eventually abandoned in favor of claims about the importance of gender complementarity.  Such claims however depended on the very sex stereotypes that sex discrimination law aims to eradicate – notably the idea that “responsible procreation” by heterosexual couples would somehow be promoted by keeping the institution gendered and excluding same -sex couples (154, 313-14, 320, 322-36, 405, 431).  Eskridge and Riano think that this argument kept being made long after its reliance on gender stereotypes was exposed, because unlike earlier arguments against same-sex marriage, it “did not demonize gay people, couples, or parents.”  (574)  Its proponents somehow managed not to notice its sexism.

In Loving v. Virginia, it was possible to talk about the plight of Richard and Mildred Loving while at the same time declaring that the ban on their interracial marriage was “designed to maintain White Supremacy.”

Suppose, in Loving, commentators almost unanimously objected that the talk of White Supremacy was a lawyer’s trick, and that the law really discriminated against “miscegenosexuals.”  We could then have a conversation about whether miscegenosexuals had a history of discrimination, whether the state had any legitimate basis for singling them out, and so forth, without ever mentioning racism. If anyone did talk about racism, they’d be dismissed as trying to distract everyone from the real issue of antimiscegenosexual prejudice. Wouldn’t that be a weird world?  But that’s the world we’re in, a world that denies what ought to be obvious.

I think that the explanation for our weird world lies in a decision made by the earliest gay rights advocates to push the analogy with racial discrimination and specifically the similarities between the unfair treatment of African Americans and of gays. It was a smart strategy, and it worked. Part of what was attractive about it was precisely that it was unthreatening: equal rights for gay people wouldn’t affect anyone who wasn’t gay. If I’m right, on the other hand, acceptance of gay people will have implications for our broader understandings of the meaning of gender. It was probably politically wise for the movement to stay away from that.

On the other hand, now it can be told.