In a thoughtful recent post, co-blogger Dale Carpenter takes issue with my argument that bans on same-sex marriage are best attacked on the grounds that they are unconstitutional sex discrimination, and parts of my post suggesting that a minimalist strategy in the gay marriage litigation is not likely to work. Dale is one of the leading academic experts on the law of same-sex marriage, so I take his points very seriously. Nonetheless, I remain unrepentant.
Dale argues that the sex discrimination argument is flawed because “(1) it obscures the heart of the equal protection issue, continuing exclusion of gay men and lesbians, and (2) it isn’t sufficiently attuned to the Court’s sex-discrimination cases, which do suggest a lower level of scrutiny when legislation addresses ‘real differences’ between men and women (like the capacity to get pregnant or, one might say in the marriage context, the capacity to procreate as a couple).” On the first point, I think this “obscurity” is part of the strength of the argument. The idea that discrimination on the basis of sexual orientation should be subject to strong judicial scrutiny has no roots in the original meaning of the Fourteenth Amendment and only a modest basis in recent precedent (Romer v. Evans). By contrast, sex discrimination has long been subject to heightened scrutiny, and, as I noted in my first post on the subject, there is growing recognition that this is consistent with the original meaning. Most important, as I explained in some detail in the earlier post, laws banning same-sex marriage do not in fact ban anyone from marrying anyone else because of their sexual orientation. Anne is free to marry Bob even if one of them is gay or lesbian. On the other hand, these laws do restrict marriage rights on the basis of gender. Bob cannot marry Colin solely because he is a man. The greatest strength of the sex discrimination argument is that it directly confronts what the anti-same sex marriage laws actually do: limit marriage rights on the basis of gender. Obviously, these laws may well be motivated in large part by hostility towards gays and lesbians. But it is generally easier to attack a law based on its actual text than on the possible motivations behind it.
On Dale’s second point, it is essential to recognize that bans on same-sex marriage do not actually “track ‘real differences’ between men and women.” Yes, only an opposite-sex couple can procreate by natural means. But traditional marriage laws do not deny the right to marry to couples where one partner is sterile, couples that are too old to conceive, and so on. These couples can, of course, acquire children by adoption. But the same goes for same-sex couples.
Dale also attacks my claim that gay rights advocates should make a full-blown argument for the unconstitutionality of same-sex marriage bans in this case because, as I put it, a defeat might “lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.” In his view, Bowers was an unmitigated “calamity” for gay rights because it “was used by courts to deny gay-rights claims in the military, in housing, in public and private employment, in custody, in child visitation, and so on. Politically, the presumptive criminal status of homosexuals was used as a reason to resist every proposal for gay-rights legislation, from hate-crimes laws to marriage, even in states that had no sodomy law.” As I see it, however, all of this would have happened even in the absence of Bowers. Had there been no Bowers, some states would still have retained anti-sodomy laws, and most people would still have assumed that those laws are constitutional. Indeed, the absence of any strong legal challenge to them would have reinforced that assumption. With Bowers, by contrast, anti-sodomy laws were upheld by a shaky 5-4 Supreme Court majority. When the Court splits 5-4 on an important constitutional issue, everyone realizes that that question is far from settled and that the Court might well reverse itself in the future. That’s a net gain for the side that lost the case if that side was the one trying to change the status quo.
Dale ends by suggesting that “Bowers ‘laid the groundwork’ for Lawrence only in the sense that Pearl Harbor paved the way for VJ Day.” This is actually not a bad analogy. Pearl Harbor did in fact lay the groundwork for VJ day. It did so by mobilizing American public opinion against Japan, leading to a strong determination to pursue the war until total victory. In retrospect, launching a surprise attack on Pearl Harbor was a terrible mistake by the Japanese that sealed their doom. Similarly, Bowers outraged liberals and gay rights advocates, while at the same time the narrow margin of defeat led them to realize that they could prevail in the future. And win they did.
A similar happy outcome in Perry is far from certain. Perhaps gay rights advocates will suffer a more lopsided defeat in this case than in Bowers, and thereby become demoralized. As I noted earlier, this lawsuit is probably premature. That said, the tide of opinion is rapidly shifting in favor of gay marriage, and – over time – the balance of power between the two sides will shift as well, even if not as rapidly as the balance between the US and Japan shifted in 1942. It is therefore unlikely that a defeat in Perry v. Brown will set back the cause of gay rights for very long. Perry may indeed turn out to be like Pearl Harbor. But perhaps not in the way Dale supposes.