Marriage Equality and the Sex Discrimination Argument for LGBTQ+ Rights: The Legacy of Ruth Bader Ginsburg

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).

William N. Eskridge Jr. & Christopher R. Riano 

We are honored by the attention paid to our book, Marriage Equality: From Outlaws to In-Laws (Yale Press 2020). Jack Balkin has assembled a diverse array of learned and brilliant commentators who have approached the book from different angles:  they situate the tome in the context of evolving American families and family law (Naomi Cahn, June Carbone, and Doug NeJaime), the legal process and constitutional reasoning (Stuart Delery and Andy Koppelman), critical race and feminist theory (Russell Robinson, as well as Koppelman), and the fraught clashes between religious liberty and equality for sexual and gender minorities (Robin Wilson). 

These intellectuals treat marriage equality for LGBTQ+ persons as an admirable social movement and Obergefell v. Hodges, 576 U.S. 644 (2015) as a landmark to be celebrated—but also to be soberly assessed with regard to the social costs and missed opportunities.  If we are not mistaken, all of these commentators agree with the central argument of the book, that marriage equality emerged from the changing role and status of women in American society and from the sexual revolution.  Lesbians and gay men, and later bisexuals and transgender persons, came out of their closets and gradually gained normative traction in the country.  Delery quotes Judge Shelby on why so many conservative and moderate judges supported marriage equality: “it is not the Constitution that changed, but the knowledge of what it means to be gay or lesbian,” to which we should add transgender, nonbinary, or queer.  Kitchen v. Herbert, 961 F. Supp. 2d. 1181, 1203 (D. Utah 2013).

In Kitchen, Judge Shelby ruled that Utah’s exclusion of same-sex couples from marriage was doubly invalid: it unconstitutionally denied those couples their fundamental right to marry and was an unconstitutional discrimination because of their sexual orientation. In the run-up to Obergefell, most federal judges followed Judge Shelby on both the due process (liberty) and equal protection claims—but few judges addressed the doctrinally simpler argument that limiting marriage to different-sex couples is discrimination because of “sex,” which the Supreme Court treats as a quasi-suspect classification. By analogy to Loving v. Virginia, 388 U.S. 1 (1967), which treated discrimination against different-race couples as race discrimination, scholars and litigators for decades have maintained that discrimination against same-sex couples is sex discrimination.  Koppelman and Robinson lament that the marriage equality movement was not as committed to the sex discrimination argument for same-sex marriage as it might have been.  In this response, we want to situate their lament in the historical context of our book and to suggest how that argument creates opportunities and conflicts that the commentators in this symposium have productively addressed.

In 1971, Jack Baker and Mike McConnell, the first “gay marriage” celebrities, made the sex discrimination argument to the Supreme Court by analogy to Loving, and Michael Withey’s brief for John Singer and Paul Barwick in Washington developed its sociological contours in greater detail.  Not a single judge gave it a second thought in the 1970s, and marriage cases dried up during the early years of AIDS.  When Chief Justice Ron Moon and Justices Steve Levinson and Paula Nakayama of the Hawai‘i Supreme Court did accept the sex discrimination argument in Baehr v. Lewin, 852 P.2d 44, 52 (Haw. 1993), their ruling was ridiculed and abandoned by liberals as well as conservatives, and rejected by an overwhelming popular majority, in the Aloha State. 

Beth Robinson argued the Vermont marriage equality case. A student of Robin West and Catherine MacKinnon, she was devoted to the sex discrimination argument, and Shannon Minter backed her up with a powerful amicus brief from the National Center for Lesbian Rights. But the argument bombed in a moot session and ultimately attracted only the vote of Justice Denise Johnson in Baker v. State, 744 A.2d 864 (Vt. 1999).  In Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003), the advocates successfully emphasized the Baker argument that marriage equality was required even under rational basis review, and the sex discrimination argument earned a shout out only from Justice John Greaney.  In the California Marriage Cases, 183 P.3d 384 (Cal. 2008), Minter prioritized the sex discrimination argument, but his co-counsel Terry Stewart believed that it would not win the case—and she was right.  Chief Justice Ron George wrote for a 4-3 marriage equality majority, yet the sex discrimination argument was the only one he rejected.

All of this is in the book, and it demonstrates why one of us in 1996 felt that the sex discrimination argument was logically valid and normatively compelling—but that it would not be the winning constitutional argument, as it was incomprehensible to non-feminist judges and did not reflect the priorities of most sexual minorities.  Almost all uncloseted gay men and lesbians felt that sexual orientation discrimination was wrong, but only a minority believed they were also being discriminated against because of sex.  They were not alone.  What the book also demonstrates is that mainstream judges in the late twentieth century viewed gay people through the lens of sexuality and not through the lens of gender.  (In 1997, one of us [Eskridge] teamed up with Nan Hunter to publish a casebook to undermine this idea:  Sexuality, Gender, and the Law.)

From Outlaws to In-Laws also provides an inside story of how the U. S. Supreme Court gradually came to accept this line of thinking, and we shall now elaborate on that behind-the-curtain account—not to say that the sex discrimination argument was anything but an excellent argument, but to demonstrate the complexities of securing rights through constitutional litigation.

In or around 1998, one of us collaborated with Justice Frank Iacobucci of the Supreme Court of Canada to present materials on rights for gay people for a conference of judges from all around the world.  We highlighted the marriage as well as consensual sodomy issues being discussed in Canada, the United States, and other constitutional democracies.  Iacobucci and Eskridge presented materials on the sex discrimination argument for gay rights.  In our oral presentation to the judges, our focus was the sex discrimination argument.  Aside from Iacobucci, few of the judges “got it,” but they listened politely.  A U.S. Supreme Court Justice wondered why discriminating against a gay couple for marriage purposes was not just “sexual orientation” discrimination, and not “sex” discrimination? 

Inspired by Koppelman’s work, Eskridge explained the Loving analogy:  if it is race discrimination to bar a white man from marrying a black woman (while allowing him to marry a white woman), then it is sex discrimination to bar a man from marrying a man (while allowing him to marry a woman).  The American judge still didn’t get it—the first is racism and white supremacy, the second is homophobia and not sexism.  So, it’s apples and oranges, sighed the exasperated jurist. Eskridge tried one more time:  Steve can marry Cathy but not Carl.  If Steve were Susan, she could marry Carl. “Oh, I get it,” exclaimed the American jurist, “well no one is every going to buy that argument.”  

Being a Canadian intellectual, Iacobucci was stunned, but Eskridge was not too surprised.  It was a matter of framing.  In the United States at the end of the millennium, even liberals with gay friends viewed the social group through the lens of sexuality.  Sure, they understood that you can’t say “gay” without saying “sex,” and some liberals understood lesbians through the lens of gender as well as sexuality.  But the lives and identities of gay and bisexual men were filtered through the lens of sodomy (acts) and not the identity of their sexual partners. Some younger judges like Denise Johnson, Steve Levinson, and Paula Nakayama understood the pervasive interconnection among sexuality, gender, and the law—but they were a minority.

When the U.S. Supreme Court overturned the Texas Homosexual Sodomy Law in Lawrence v. Texas, 539 U.S. 558 (2003), the Justices were aware that two Texas state judges had declared the law an unconstitutional sex discrimination and that the Texas judiciary had immediately rebuked them. See Lawrence v. Texas, 41 S.W.3d 349, 357-59 (Tex. App. en banc 2001), superseding 2000 WL 729417 (Tex. App. 2000) (opinion withdrawn, but its author dissented from the en banc for this reason, 41 S.W.3d at 366-75 [Anderson, J.]).  The sex discrimination argument went nowhere with the U.S. Supreme Court, and not just because advocates gave it little emphasis. Since the early 1990s, Justice Anthony Kennedy had been determined to overrule the Court’s infamous sodomy law opinion in Bowers v. Hardwick (1986), and he, like concurring Justice Sandra Day O’Connor, viewed the law as implicating sexual acts and sexuality-based identities (i.e., “homosexuals”), not as implicating sex- or gender-based identities.  Briefs supporting the challengers, including Eskridge’s Cato amicus brief, emphasized the liberty argument over the sex discrimination argument because a freedom-of-choice holding would sweep away all consensual sodomy laws, not just the ones that discriminated because of sex or sexual orientation.

In 2003, Justice Ruth Bader Ginsburg understood and, we think, agreed with the sex discrimination argument for gay rights, because she (alone on the Court) understood the normative underpinnings of the argument:  anti-homosexual measures advanced the historical entrenchment of rigid gender roles—the patriarchal ideology she had condemned in the VMI Case, United States v. Virginia, 518 U.S. 515 (1996).  In short, RBG comprehended how homophobia was an instrument of sexism.  Yet she joined the Kennedy opinion, which she enriched by encouraging him to include equal protection analysis that complemented his liberty claims.

As Ginsburg told us before her death, the main reason she joined the Kennedy opinion was that she, together with John Paul Stevens, David Souter, and Steve Breyer, had an informal agreement to let Tony Kennedy (a Catholic Republican) speak for all of them in gay rights cases, without special concurring opinions.  They wanted him to have pride of authorship for written work they knew would bring him great praise from the media and from academics such as us.  But a secondary reason for her acquiescence was that an opinion (majority or concurring) bringing the sex discrimination argument “out of the closet” would play into Nino Scalia’s hands, because all anti-gay laws would become immediately suspect, à la the VMI Case.  Sounding the alarm to his Fox News and Federalist Society base, Scalia announced in Lawrence that once “homosexuals” were no longer outlaws and criminals, their taste for equal treatment would not be satiated until they had marriage rights, which was way too much for the country to swallow.  (Cassandra-like, he was right about that.  Iacobucci and his colleagues were in 2003 pressing Canada toward nationwide marriage equality.) 

As she had demonstrated in her work on sex discrimination in the 1970s, RBG was committed to full equality but pragmatically believed that equality came on cat’s feet and not overnight.  In 2003, the country had largely been persuaded not to attribute mental illness or criminality to lesbians, gay men, and bisexuals, but overwhelming majorities did not consider them marriage material. Thus, the sex discrimination argument went too far in 2003 and for years later.  Like presidential candidate Barack Obama as late as 2008, Ruth Ginsburg felt the country needed a period of equality practice before the sex discrimination argument could assume its legitimate place in constitutional advocacy.

On the strength of arguments grounded in the fundamental right to marry and the irrationality of anti-gay discrimination, equality practice proceeded apace between 2003 and 2015.  Marriage equality progressed from one state to all 50 in a dozen years.  The value of state-by-state equality practice was to bring committed same-sex couples, many raising children, to the public’s attention; attention to the truth and consequences of their lives confounded longstanding anti-gay stereotypes and put marriage equality skeptics on the defensive. Every time people saw that gay marriage did not torpedo the institution—not a single “traditional” marriage fell apart because of Goodridge—the doomsday scenarios outlined by skeptics took a hit. 

Importantly, a central feature of the post-2003 marriage debate was the steady rise of gender and complementarity, and the corresponding eclipse of sexuality and deviance, as its focus.  Marriage equality opponents read the tea leaves (precisely quantified by polls):  they would lose moderates if they depicted lesbian and gay Americans as sexualized monsters or depraved child molesters, as almost everyone knew normal “homosexuals.”  Respectable intellectuals such as Maggie Gallagher and David Blankenhorn replaced homophobic zealots such as Alan Sears and Robert Knight as the intellectual leaders of the opposition, and the new messaging was that gays were great, but they didn’t fit the gendered institution of marriage. 

By 2003, the main argument emerging among “traditional family values” litigators and with conservative judges was that rascally heterosexuals needed marriage because they were so irresponsible that their child-producing intercourse had to be channeled toward legal commitments; because “the gays” planned their children and so didn’t need marriage so much, it was okay to limit the institution to those most in need for its discipline.  We thought this was a very odd argument, but we appreciated that it was way nicer to our kind than the “depraved, diseased, and predatory sex criminals” arguments of the 1990s.  Unfortunately, the responsible procreation argument was often accompanied by an argument that was even more clearly gendered:  every child needed a father, as the claim was usually expressed, because every child benefitted from role models of both sexes.  Some versions of the role model argument did dismiss lesbian and gay couples as “bad parents,” but this claim was lambasted by scientists and falsified by examples of good parenting that people could see with their own eyes.  

At the same time the marriage equality skeptics were falling back on gender role and complementarity as their Maginot Line, the marriage equality advocates saw their task as not only reframing the public’s understanding of sexual minorities, but as reframing the purpose of marriage.  Pioneered by the Vermont, Massachusetts, and Connecticut advocates, the mantra was “Love Makes a Family” (the formal name taken by Ann Stanback’s Connecticut group in 1999).  The point of marriage is not biological procreation—children can be adopted or created by assisted reproductive technologies NeJaime discusses—but is rather interpersonal commitment.  Same-sex couples are just as interested in that as straight couples, and they raise children capably as well. 

Between 1971 and 2015, the audience for this Love Makes a Family understanding of marriage expanded almost every year.  And it expanded for Ginsburgian reasons:  women with jobs and careers were not so willing to assume traditional gender roles, and men were giving some ground; women were also having fewer children, having them later, using assisted reproductive technologies, and were increasingly raising kids with whom they had no biological connection.  At the same time gay families were looking more like “traditional” nuclear families with children, straight families were looking more like gay “families we choose” (Kath Weston’s term).

For these reasons, as RBG and Obama predicted, public opinion was swiftly pivoting in favor of marriage equality by 2009.  Appreciation for gender variety helped pave the way for Obergefell and ensured greater cogency for the sex discrimination argument.  Chief Justice Roberts treated it as a serious point during the Obergefell oral argument, and Justice Kennedy had raised it during the oral argument in Hollingsworth v. Perry, 570 U.S. 693 (2013).  Justice Breyer was on board, and the younger Justices, Sonia Sotomayor and Elena Kagan, thoroughly understood the sex discrimination argument for marriage equality.

So why did that argument not carry the day in Obergefell?  For better or for worse, the answer lies in the idiosyncratic nature of judicial review, whose contours are influenced by the particular commitments and frameworks for the nine people who happen to sit on the Supreme Court at any given time.  At the Obergefell conference, four Justices did not think marriage equality was required by the Constitution, four thought it required by the Equal Protection Clause, and one (Tony Kennedy, of course) focused only on his libertarian reading of the Due Process Clause.  Because the implicit bargain within the pro-gay block meant that Kennedy would write the opinion for the Court, it meant the liberals were stuck with a liberty-loving and marriage-celebrating majority opinion. RBG substantially wrote the equal protection paragraphs and sold them to the Kennedy chambers.

We know from Court insiders that none of the Justices was pushing the sex discrimination argument in Obergefell.  For Koppelman-Robinson reasons, we were surprised, but Justice Ginsburg solved the riddle in a conversation with Eskridge:  they all knew the Title VII and Title IX cases with LGBT plaintiffs making the sex discrimination argument were percolating up through the federal courts all over the country, and the Justices were reluctant to predetermine the results in those cases without thorough briefing and deliberation.  Roberts, Kennedy, and Ginsburg were all Harvard-educated legal process institutionalists and loath for the Court to address constitutional issues that were not “ripe” (an idea that Harvard-educated Felix Frankfurter and Alex Bickel made famous in legal circles).

As RBG anticipated, the issue did arrive at the Court in Clayton County v. Bostock, 140 S. Ct. 1731 (2020), where the Ginsburg liberals were joined by Roberts and an arch-textualist newcomer, Neil Gorsuch, who inherited the Kennedy role as the Republican author of a sweeping LGBTQ+ rights opinion.  Bostock held that Title VII’s bar to job discrimination “because of sex” protects lesbian, gay, and transgender employees from discrimination because of the sex of their partners or their gender identities. 

Advertised as an exercise in original public meaning, Gorsuch’s opinion for the 6-3 Court started with a mechanical cut-and-paste approach to text, which in this case did benefit the plaintiffs.  But halfway through the opinion, Gorsuch revealed that he understood the Ginsburg-Koppelman reading of the marriage cases, that rigid gender roles are at the heart of both sex discrimination jurisprudence and the disadvantages suffered by gender and sexual minorities.  (The turning point in the majority opinion was its analysis of Bob and Hannah, hypothetical workers penalized because they were not sufficiently masculine and feminine, respectively.)  Both the formal and the conceptual claims adopted in Gorsuch’s opinion struck the dissenters and most academics as applicable to Title IX and other sex discrimination statutes, not to mention the Equal Protection Clause.  (In the dying days of the Trump Administration, its Department of Justice produced an internal memorandum bemoaning Bostock and offering a narrow view of its logical implications.)

As Eskridge and Koppelman argued in their amicus brief, Bostock was an analytical and social sequel to the marriage equality litigation. Sexuality, gender, and the law have been inevitably wedded together by the marriage equality debate.  The rights of LGBTQ+ people are linked to the rights of women, and vice-versa.  This partial convergence creates or solidifies all sorts of linkages that have previously been obscure or marginalized (by us as well as others).  Consider a few that are especially important for ongoing debates.  

To begin with the most important point, made in the past by Derrick Bell Jr. and Catherine MacKinnon, formal equality rests upon and papers over a social foundation of gross inequality.  As Cahn and Carbone have documented in Red Families v. Blue Families (2010) and subsequent work, marriage has increasingly become a preserve for the well-to-do.  In our book, Paula Ettelbrick was the prophet who foresaw, in the 1980s, that marriage equality would not benefit many lesbians, gays of color, and working class or poor sexual and gender minorities.  The family law pluralism NeJaime advances might have similar limitations, as second-parent adoption and assisted reproductive technologies are more easily utilized by well-to-do LGBTQ+ persons than by those without resources.  One of the great laments in our book is that more states have not adopted Colorado’s 2009 designated beneficiaries law, which creates an inexpensive, easy-to-use menu for unmarried couples of all orientations to have some of the safety-net benefits of marriage. 

Cahn and Carbone astutely observe that the marriage equality debate allowed conservatives to “blame the gays” for the decline of marriage, and thereby to deflect attention away from income inequality as the culprit.  Many Americans are too poor to get married.  David Blankenhorn, once a leading critic of marriage equality, agrees with Cahn and Carbone and advocates safety net reform and income redistribution.  These are the best government programs to actually revive marriage—but Blankenhorn has been shunned by most religious groups and virtually the entire conservative establishment because of his abandonment of the campaign against marriage equality and his insufficient interest in preserving traditional gender roles.

Another intersection of feminism and gaylaw involves the interaction of acts, identities, and self-expression.  As Simone de Beauvoir famously wrote, one is not born a woman, it is what one becomes.[1]  Transgender women illustrate this proposition most dramatically, but it applies just as much to cisgender, bisexual, and lesbian women—and the general idea of gender construction applies to gay men, bisexuals, transgender men, nonbinary persons, and queers.  Following Beauvoir and American pioneers such as Elizabeth Cady Stanton and Margaret Sanger, most feminists today understand the linkage among reproductive freedom, nondiscrimination because of gender role as well as biological sex, and consciousness-raising and expression of independence.  Following Frank Kameny, Del Martin, Phyllis Lyon, and Phyllis Frye, most LGBTQ+ persons today understand the linkage among sexual liberty, nondiscrimination because of gender role (including sexual orientation), and freedom to express themselves by coming out and by their attire. 

The flip side of the connection among acts, identity, and self-expression is that many Americans identify with gendered religious traditions, the expression of which (from their point of view) requires dissociating from nonprocreative marriages, abortion choice, and even contraceptives.  The religious liberty of these Americans and their institutions often runs up against equal treatment of women and LGBTQ+ Americans; freedoms for gender and sexual minorities may come at the cost of equality for religious persons.  These are the famous liberty-equality clashes that NeJaime and Wilson explore in their influential scholarship—but from largely opposing viewpoints.  NeJaime argues against most religion-based discrimination impinging on women’s reproductive freedom and gay people’s workplace and marriage equality. Wilson argues in favor of religious allowances on the face of anti-discrimination laws, similar to the ones we describe for New York’s Marriage Equality Act of 2011. 

With NeJaime, we strongly oppose sex discrimination of any sort in government programs, including the foster care state program before the Supreme Court in Fulton v. City of Philadelphia (decision expected 2021).  With Wilson, we favor religious allowances that permit behind-the-scenes opting out, such as Utah’s allowing county clerk employees to hand off same-sex marriage applications to co-workers, so long as such applications were handled as seamlessly as all others.  Eminent First Amendment scholars are divided on the legal resolution of the wedding vendor cases, abortion and contraception provisions in employer health plans, and adoption placements by agencies licensed by the state (but not contract parties paid by the state to be agencies in government programs). 

Our book advocates legislation, like the famous 2015 Utah anti-discrimination and religious liberty law, a “statute of principles,” to address these issues.  We have little confidence that unelected, unaccountable judges framing these issues through normative rather than neutral lenses are the best officials to strike the balance—and we have no more faith that law professors are any better, and they may be worse because they are even less accountable.  For years, we have joined Wilson in urging state legislatures to replicate Utah’s deliberative process (bringing together religious groups, LGBTQ+ organizations, and businesses to work out principled accommodations), and we urge the Biden Administration to support legislation at the federal level.  Although Title VII now protects gender and sexual minorities from discrimination, Gorsuch’s opinion for the Court said that faith-based allowances would be evaluated in light of the Religious Freedom Restoration Act of 1993, which protects at least some religious employers that would deny some benefits and perhaps even employment to their LGBTQ+ workers.  Hence, there ought to be incentives on all sides of the debate to work on measures that accommodate religious liberty while recognizing or expanding equality for sexual and gender minorities.