Some of the recent criticisms of the sex discrimination argument for same-sex marriage have come from the left, arguing that the argument does not do justice to the reality of discrimination against lesbians and gay men. The argument in fact does not do it justice, but this is true of legal argument generally. I responded to such arguments in some detail in a 2001 article, responding to criticisms from Edward Stein. In light of the renewed interest in the sex discrimination argument, I'm posting that article onto SSRN. It is here. Here is the abstract:
Edward
Stein’s is only the latest and most systematic of a growing number of
criticisms of the sex discrimination argument, from the left and the
right. Stein’s doctrinal objections to the argument misconceive the
reach of present doctrine, which treats all sex-based classifications
with deep suspicion. His empirical doubts misapprehend both the
argument’s claims and the enduring connections between heterosexism and
sexism. His only persuasive claim is his moral objection, which argues
that the sex discrimination argument ignores, and may render invisible, a
central moral wrong of anti-gay discrimination. This is a profound
moral difficulty, but it is one that is present in almost any legal
argument, and perhaps in language as such. It therefore cannot be an
objection against any particular argument.