Marriage Equality and the Gayocracy

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).

 Russell K. Robinson

William N. Eskridge Jr. and Christopher Riano’s Marriage Equality: from Outlaws to In-laws is sweeping and daunting in scope at 1026 pages. They skillfully bring to life the stories of the many hopeful couples and colorful lawyers who fought the epic constitutional battle for marriage equality. Their book builds on Professor Eskridge’s deep and impressive body of scholarship on sexual orientation and the law generally, and marriage equality in particular. Eskridge and Riano identify the following as “a central theme of this book:” “[T]he key variable driving the marriage debate has been the changing social status and roles of woman. As women have secured more educational, employment, political, financial, and other opportunities, they have made different decisions about family, marriage, and children—and those decisions have eroded the sexual division of labor on which traditional marriage was founded. At the same time, the evolution of women’s status opened doors for lesbians as well as straight and bisexual women—and for gay men, whose deviation from traditional gender roles grew more acceptable as those roles were considered more flexible.”[1] (p.416) Professor Eskridge has also written powerful law review articles that argue that, in the Title VII context, sexual orientation discrimination is a form of sex discrimination.[2] Although one might think of marriage equality and Title VII as analytically distinct, Eskridge’s work displays formidable synergy between these contexts. For instance, he argues persuasively that interpreting Title VII to exclude discrimination claims by gays and lesbians would violate equal protection under Romer v. Evans’ logic.

On the surface, Eskridge and Riano’s claim about fusion between advances in women’s equality and gay and lesbian rights may seem unobjectionable. They suggest that gay men and lesbians stood on the shoulders of feminists, such as the late Ruth Bader Ginsburg, who fought to strip marriage and family law of longstanding gender stereotypes. Yet once we unpack the claim, we find that it may function to conceal the reality that leading marriage equality lawyers were averse to the sex discrimination argument and tethering gay men’s rights to women’s rights. Eskridge and Riano’s statement suggests a completeness to the effort to free the family from the strictures of rigid gender roles that is belied by empirical data and on-going legal battles. Women continue to be paid less than men, to perform a disproportionate amount of child-rearing work, and to face exclusion from the most elite positions. Moreover, women are fighting tooth and nail to preserve earlier Supreme Court victories, including the right to choose an abortion and the right of access to contraception. In recent years, the Supreme Court has consistently sided with corporations asserting religious freedom rights and permitted them to refuse to subsidize contraception for their female employees. The Court has spent decades whittling away at Roe v. Wade’s assertion of a right to terminate a pregnancy. Closely-divided recent decisions in which Justice Kennedy and later Chief Justice Roberts joined the liberal Justices to preserve abortion precedents have not quelled the battle over Roe. To the contrary, President Trump has made transforming the Supreme Court and overturning Roe a central goal of his administration. His recent nomination of Judge Amy Coney Barrett to replace Justice Ginsburg means that the Court may soon grant evangelicals’ most fervent desire. Despite the #MeToo movement and credible testimony of sexual assault by Dr. Christine Blasey Ford, the Senate confirmed Brett Kavanaugh as a Supreme Court Justice. This wide-ranging “war on women” is particularly threatening to Black, Latina, and poor women, who tend to be far more vulnerable than middle-class White women.

Eskridge and Riano’s failure to engage the unfinished work of gender equality may effectively perpetuate a facile narrative of social progress. It goes something like this: In the 1960s, the Court in Loving v. Virginia struck a final blow to Jim Crow by invalidating State laws that prohibited White people from marrying people of color. In the 1970s, the Court began applying intermediate scrutiny to laws that treated men and women differently in order to smoke out gender stereotypes. The Court rebuked legal efforts to channel women into the home and a life dedicated to caregiving, while reserving the public sphere for men. The gay and lesbian movement built on these landmarks by arguing that Loving’s right to marry also applies to same-sex couples and the de-gendering of marriage created space for two women and two men to marry. I have previously assailed the way in which some marriage equality lawyers and activists fostered post-racial narratives that fixated on a veneer of formal racial equality, denied the reality of enduring racial subordination, and clumsily deployed the suffering of Black people to the advantage of gays and lesbians. These lawyers’ lack of concern about the accuracy of their racial narratives and the harm that such distortions might inflict on the relationship between the Black community and the LGBTQ community reflect the glaring Whiteness of the group that Eskridge and Riano rightly tag the “gayocracy.”

I worry that Eskridge and Riano’s book may inadvertently give birth to a related facile narrative, one in which the marriage equality movement embraced gender equality as central to its project and acknowledged the trail blazed by the key sex/gender precedents. That’s not how I remember it. As a scholar and sometime critic of the marriage equality movement, I have long been troubled by its ambivalence about the relationship between sex discrimination and sexual orientation. It has always seemed obvious to me that “gay” or “lesbian” is what Kimberle Crenshaw would call an intersectional identity. That is, a gay man is (1) a man (2) who has sex with or is attracted to men. A lesbian is (1) a woman (2) who has sex with or is attracted to women. “Gay” includes inextricably overlapping identities. Gay men are treated as less than “real men.” Lesbians are regarded as the wrong kind of woman. One cannot take the “sex” out of “sexual orientation.” A “homosexual” is necessarily defined by sex.

Yet marriage equality lawyers often recoiled from the sex discrimination argument. Consider the half-hearted arguments from the briefs in Obergefell. The Obergefell/Henri brief, which was signed by prominent lawyers from Lambda Legal and the ACLU, devoted 11 pages to arguing that marriage bans are a form of unconstitutional sexual orientation discrimination, and just three paragraphs—less than two pages—to argue that such laws constitute sex discrimination. A second brief authored by ACLU lawyers, among others (Bourke v. Beshear), spent 13 pages articulating different iterations of a sexual orientation-based equality argument, and just one page on sex. The petitioners’ brief in DeBoer v. Snyder, which was signed by Mary L. Bonauto of Gay and Lesbian Advocates and Defenders, completely disregarded sex discrimination. It spent five pages on sexual orientation discrimination and three pages on discrimination against children deemed “illegitimate.” The exception was a brief joined by Shannon P. Minter, for National Center for Lesbian Rights, which tends to be more intersectional and lesbian-centric in its advocacy than other marriage equality lawyers. Minter’s brief gave nearly equal time to the sex discrimination argument.

It is of course hard to be certain what would have happened if the Obergefell lawyers had made a full-throated sex discrimination argument, but this mistake strikes me as quite costly. The Court’s opinions in Romer and Windsor were ambiguous but open to the argument that the Court had implicitly granted heightened scrutiny to gays and lesbians. The Obergefell lawyers urged the Court finally to confirm, after nearly twenty years of uncertainty, that laws based on sexual orientation demand heightened equal protection scrutiny. Yet Justice Kennedy withheld this important safeguard in his Obergefell opinion. The lopsided majority analysis fixated on the centrality and importance of marriage to the individual and society under due process and treated equality as a hazy afterthought. Then, to add insult to injury, Justice Kennedy provided the fifth vote for an opinion in Trump. v. Hawaii that can be read to strip Romer down to the studs, i.e., a basic rational basis case. As a practical matter, this means LGBTQ people’s rights are most secure when they are seeking to marry, but they remain in a liminal contested zone when they face discrimination in other contexts. A sex discrimination holding would have provided broader, more robust protection.

It did not have to go this way. There were signs back in 2015 that a Court majority was amenable to the sex discrimination argument. At oral argument in Obergefell, Chief Justice Roberts raised a question that suggested that he was persuaded by this argument. “I’m not sure it’s necessary to get into sexual orientation to resolve this case,” he said. “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?” Justice Kennedy also raised the sex discrimination argument in 2013. Ultimately, neither Kennedy’s nor Roberts’s Obergefell opinions addressed the sex discrimination argument. Yet five years later, Chief Justice Roberts would join Justice Gorsuch’s opinion in Bostock, which champions that very same argument. This turn may mean that eventually the Court will extend the “sexual orientation discrimination is a form of sex discrimination” argument to its Equal Protection Clause cases. Then again, after Justice Ginsburg’s death, the composition of the Court is in flux. And it would not be the first time that the Court declined to extend a statutory anti-discrimination argument to the equal protection context. But I bring this up to make two related points. The gayocracy had long dismissed the sex discrimination argument as a “risky” long shot. When critics of the marriage equality movement have pressed the lawyers to choose more inclusive plaintiffs—i.e., bisexuals, transgender people, poor people—the typical movement lawyer response is that such inclusion would endanger a favorable ruling. As one of the Obergefell lawyers told my class in 2018, their job is “fear management”: framing the case in a way that helps judges like Justice Kennedy overcome their anxieties about extending protection to sexual and gender minorities. But the fact that a more conservative, post-Kennedy Court embraced the sex discrimination argument reveals that the Obergefell lawyers’ perception of what the Justices could handle may have been seriously off base.

This leads to my second point. Why would so many smart lawyers, including some women in the gayocracy, fear an argument that would turn out to be a winner? We find the answer in Eskridge’s foundational book from the 1990s, The Case for Same-sex marriage: From Sexual Liberty to Civilized Commitment. To his credit, Eskridge articulates the sex discrimination argument at length and with care. And then he writes this: “There is a transvestite quality to the [sex discrimination] argument adopted by the Baehr v. Lewin majority. It dresses a gay rights issue up in gender rights garb.” “A complementary and more direct argument,” he goes on to say, is that “[p]rohibiting same-sex marriage is invidious discrimination on the basis of sexual orientation.” (p.172)

There is much that one could say about this rather breathtaking passage. I have no doubt that Eskridge would not use the term “transvestite” in this manner today or imply that a transvestite is essentially a man “dressed up” as a woman. I want to focus here on his assertion that the argument that marriage bans discriminate on the basis of sexual orientation is “more direct” than the sex discrimination argument. Eskridge’s claim reminds me of Ed Stein’s argument in 2001 that “the sex discrimination argument ‘closets,’ rather than confronts, homophobia.” I think many gay men today would agree with Eskridge in the ‘90s that arguments about gender do not speak to their experiences. But I worry that this resistance stems at least in part from a failure to explore how gender informs anti-gay discrimination and a masculinist desire to disassociate from women and their rights. In truth, gender discrimination is integral to the bias that gay men and lesbians (and bisexual and transgender people) experience. Even after Obergefell, gay men are broadly stereotyped as gender non-conforming and sexually voracious. Many cisgender gay men regard their experiences as men as the heart of the LGBTQ movement—no matter how many letters people add to the acronym. From this perspective, arguments about gender are seen as the domain of women and transgender people, but of little relevance to (White) gay men who aspire to be just like straight men. I hope the celebrations of the marriage equality victories do not prevent us from seeing how male privilege and bias operated in the movement and likely still deter many cisgender gay men from admitting the sex in sexual orientation.

--Peter Dunne and Dave Pozen provided very helpful comments on this piece. 

Russell K. Robinson is Walter Perry Johnson Professor of Law & Faculty Director, Center on Race, Sexuality & Culture at the University of California, Berkeley School of Law. You can reach him by e-mail at russellkrobinson at gmail.com