During the arguments over California’s Proposition 8 banning gay marriage, Cooper’s response to Kennedy’s question offered another common, yet flawed, retort to the gender-discrimination argument. Cooper said that this case involves a gender-based classification only “in the sense that marriage itself is a gendered institution, a gendered term.” The government in the Hawaii case similarly argued “the right of persons of the same sex to marry one another does not exist because marriage, by definition and usage, means a special relationship between a man and a woman.”
Surely Kennedy could easily see through this kind of circular logic. Marriage is a “gendered term” that “by definition and usage” involves only members of the opposite sex precisely because we have always prohibited same-sex couples from marrying. In Loving, there was a similar reliance on the so-called natural state of marriage. The trial court judge declared “there was no cause for” interracial marriage because “God created the races … and did not intend for the races to mix.” But it proves nothing to say that marriage is innately one way and must remain that way when—whether because of alleged divine order or legal fiat—it has never had the opportunity to be any other way. Marriage is no more an inherently gendered institution than an inherently racial one.
The gender-discrimination framework may appeal to Kennedy in other ways, too. During oral argument, he expressed worry about the court about moving too far too fast. Bouncing between metaphors of entering “uncharted waters” or going off a “cliff” with its decision, Kennedy expressed a desire for the court to proceed cautiously “in light of the newness” of the issue.
This approach could help Kennedy with these concerns. He doesn’t have to break new legal ground by declaring a constitutional right to be free from discrimination based on sexual orientation. Instead, Kennedy could turn to the much more developed path of our constitutional protections against gender discrimination. The outcome (constitutional protection for same-sex marriages nationwide) would be revolutionary, but the basis for it (gender discrimination) would be familiar.
The reach of these cases is also naturally circumscribed. A gender-discrimination ruling on marriage would not, for example, determine how much constitutional protection a person might receive if he was fired from his job because of his sexual orientation. Kennedy could save that case for another day. It also does not give fodder to the slippery-slope argument about polygamy, which presents a problem of numbers and not gender.
Another advantage, at least perhaps in Kennedy’s worldview, is that his opinion need not hinge on a constitutional right to privacy. Kennedy could side-step any icky feelings he might get from wading into privacy rights, which tend to include family-based freedoms like the right of procreation, childrearing, contraception, and abortion. Instead he could rest easy that a gender-discrimination decision would put this case squarely in the Equal Protection chapter of future constitutional law textbooks.
Of course, we will know soon enough if Kennedy is really writing the court’s opinion on gay marriage or not. But if he does, and if he chooses to rely on the traditional framework of gender discrimination, we can’t say he didn’t try to warn us.