Courts Should Strike Down Bans on Gay Marriage As Sex Discrimination

The law, lawyers, and the court.
Jan. 17 2014 4:35 PM

Same-sex marriage bans: A form of sex discrimination

Courts need to call gay marriage bans what they are.

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Three years later, in the famous case of Loving v. Virginia, the court said it again. Virginia defended its ban on interracial marriage by claiming that the laws “apply equally to whites and Negroes in the sense that members of each race are punished to the same degree.” The court, citing McLaughlin, once again rejected this argument. What matters, the court said, is that the classification in the law is about race.

Having been so clearly rejected by the court in the 1960s as a remnant of Jim Crow (and rejected yet again in 2005 in Johnson v. California), why are courts today so readily adopting this “equal application” argument in the context of same-sex marriage? First, the courts may believe that race and sex/sexual orientation are different. While that’s certainly true as a matter of how closely courts scrutinize laws (laws that categorize based on race are scrutinized more deeply and more often overturned), that is incorrect in determining the logic of when a law classifies and on what basis. The court has consistently applied the same principles in determining this preliminary question, regardless of whether the context is race or sex.

Second, the courts may feel that this argument uses dishonest wordplay to transform sexual-orientation discrimination into sex discrimination. But characterizing opposition to same-sex marriage as sex discrimination is actually anything but dishonest wordplay. The argument gets at a deep understanding that homophobia is, in part, a form of gender stereotyping and oppression.  Archaic conceptions of the role of men and women and their relationships underlie homophobia. Particularly in the context of marriage, assumptions that a woman needs a man to exist in the world (and a man needs a woman to dominate) are deeply rooted in American conceptions of marriage.

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Third, the courts may think that the argument doesn’t capture the full extent of homophobia.  This is certainly true, but this argument is not one that claims to capture every aspect of the discrimination at issue, nor one that claims to foreclose an argument based on sexual-orientation discrimination. Basic constitutional law says that even though the law’s language does not classify based on sexual orientation, it still has the purpose and effect of discriminating based on sexual orientation, which together is good enough to trigger scrutiny. The two arguments can coexist quite easily.

With none of the rationales against the sex-discrimination argument holding water, courts should be much more willing than they are to adopt this argument. Laws that prohibit same-sex marriage are a form of sex discrimination and sexual-orientation discrimination. Courts should recognize them as such.

The sex-discrimination argument is important for several reasons. It captures a distinct way that bans on same-sex marriage are pernicious—they perpetuate traditional gender roles, particularly within the institution of marriage. But it does more than that. It also puts bans on same-sex marriage in the context of a well-established body of constitutional law. Sex discrimination has been subject to a heightened form of scrutiny for four decades now, whereas sexual-orientation discrimination has yet to be given any heightened form of scrutiny. Understanding how same-sex marriage bans constitute sex discrimination helps in the quest to strike them down.

More broadly, though, finding that these bans are sex discrimination would help in other areas.  Marriage equality does not solve all problems with respect to sexual orientation. Most states and the federal government do not bar, for instance, discrimination in employment, housing, or education based on sexual orientation. However, already existing laws do ban sex discrimination in these areas. If same-sex marriage bans are recognized as a form of sex discrimination, then so would firing someone because he’s gay (a woman loving a man wouldn’t have been fired) and refusing housing because she’s lesbian (a man loving a woman wouldn’t have been denied housing). In other words, many protections already written into the law could be extended to cover gays and lesbians with no new legislation needed.

Same-sex marriage bans are unconstitutional for many reasons. Courts need to come to grips with the fact that one of them is that they are a form of sex discrimination.

Correction, Jan. 18, 2014: Due to a photo provider error, the caption on the photo in this article misstated when the photo was taken and when the Defense of Marriage Act was struck down. It was in 2013, not 2012.

David S. Cohen, associate professor at the Drexel University Thomas R. Kline School of Law, is co-author of a forthcoming book about anti-abortion terrorism and was co-counsel for plaintiffs in Ballen v. Corbett. Follow him on Twitter.