In the last month, three courts in three different states have struck down state laws banning same-sex marriage. The courts, in New Mexico and Utah in late December and again in Oklahoma earlier this week, agreed that the bans violate constitutional principles of equality because the laws discriminate based on sexual orientation.
But the courts disagreed about a different question: whether the state anti-gay marriage laws discriminate based on sex. The New Mexico Supreme Court and the federal court in Oklahoma both ruled that banning same-sex marriage does not discriminate based on sex, while the federal court in Utah held that it did.
“Wait a second,” you’re probably saying. “Discrimination based on sex? The laws aren’t about sex. They’re about sexual orientation. After all, under the laws, gays and lesbians can’t marry, so New Mexico and Oklahoma were correct, while Utah was wrong.” But as it turns out, the exact opposite is true.
Consider a typical law that bans same-sex marriage, like Oklahoma’s constitutional amendment struck down Tuesday. It states, “Marriage in this state shall consist only of the union of one man and one woman.” Under this law, can gays and lesbians marry? Absolutely. In fact, right now, gays and lesbians can get married in every single state in this country. The problem, of course, is that gays and lesbians cannot marry the person they want to marry. They are perfectly free to marry anyone of the opposite sex, but not someone of the same sex.
And this is very clearly sex discrimination. None of the state bans on same-sex marriage contain any language about sexual orientation. Rather, the language is entirely about sex—“one man and one woman.” A simple hypothetical makes this entirely clear. Imagine three people—Nancy, Bill, and Tom. Tom, lucky guy that he is, is the object of both Nancy’s and Bill’s affection. Based on the language of the law, which of Nancy or Bill can marry Tom? Answering that question requires no knowledge of Nancy’s or Bill’s sexual orientation. All you need to know is Nancy’s and Bill’s sex.
Knowing that makes the answer obvious. Nancy, a woman, can marry Tom, but Bill, a man, cannot. Put differently, Nancy can do something (marry Tom) that Bill cannot, simply because Nancy is a woman and Bill is a man. In the language of anti-discrimination law, a man is disabled from doing something a woman can do, solely based on his sex. That is sex discrimination.
This simple logic and text-based argument that bans on same-sex marriage constitute sex discrimination is not new, as legal scholars such as Andrew Koppelman and Sylvia Law have been making and defending this argument for decades. The Hawaii Supreme Court based its 1993 decision about same-sex marriage on this argument as well. But ever since Hawaii when that argument has been aired in the courts, for the most part the courts have rejected it and, in the process, gotten it entirely wrong.
The New Mexico and Oklahoma decisions have represented the norm on this topic, while the Utah decision—finding that there is in fact sex discrimination at play here—is the outlier. The rationale that most courts have adopted in rejecting the sex discrimination argument is that bans on same-sex marriage aren’t sex discrimination because they apply to both sexes equally—gay men cannot marry one another just like lesbian women cannot marry one another. Because, the argument goes, the laws treat men and women equally in this manner, this is not sex discrimination.
The logic of this argument, though superficially appealing, has its roots in the Jim Crow era. In the 1883 case of Pace v. Alabama, Alabama defended a law that increased the penalty for two people cohabitating if they were “any white person and any negro.” The Supreme Court found no constitutional violation because the law “applies the same to both offenders, the white and the black.” In other words, said the Court, because both white people and black people were equally disabled from doing the same thing—cohabitating with the other—the law did not offend any principles of equality.
This logic was flatly rejected by the Supreme Court in the 1960s. First, in 1964 in McLaughlin v. Florida, the court rejected Florida’s attempt to use that same logic to defend a law that prohibited any unmarried “negro man and white woman, or any white man and negro woman” from spending the night together. The court said, very clearly, that equality analysis “does not end with a showing of equal application among the members of the class defined by the legislation.”
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