In today’s Proposition 8 oral argument on the constitutionality of California’s law banning same-sex marriage, Justice Anthony Kennedy – a key swing voter on the Court – asked whether such a law qualifies as sex discrimination, which he called a ” a difficult question that I’ve been trying to wrestle with”:
JUSTICE KENNEDY: Do you believe this can be treated as a gender-based classification?
MR. COOPER: Your Honor, I -
JUSTICE KENNEDY: It’s a difficult question that I’ve been trying to wrestle with it.
Charles Cooper, the lawyer for the defenders of Proposition 8 went on to assure Kennedy that it isn’t a gender-based qualification, but didn’t really explain why not. It’s not clear whether Justice Kennedy was satisfied with his answer, because another justice quickly shifted the focus to a different issue.
The issue of whether Proposition 8 qualifies as sex discrimination is indeed “a difficult question” in the sense that the idea seems counterintuitive to many. But once you consider how laws such as Proposition 8 actually work, it’s hard to avoid the conclusion that they clearly do discriminate on the basis of gender, both as a matter of logic, and under the Supreme Court precedent defining sex discrimination. I explained why here:
[A] same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And it is perfectly possible to discriminate on the basis of sex even if the motivation for doing so is something other than sexism.
Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because he is a man. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination.
By contrast, sexual orientation actually has no effect on the way the law operates. Anne is still allowed to marry Colin, even if one of them happens to be gay or lesbian. Bob is denied that right regardless of his sexual orientation.....
All of this simply underscores the reality that a ban on same-sex marriage discriminates on the basis of gender rather than orientation – even if the motivation for the discrimination is hostility towards gays and lesbians. Under the Supreme Court’s approach to sex discrimination, any “statutory classifications that distinguish between males and females” are subject to heightened judicial scrutiny. A ban on same-sex marriage pretty obviously “distinguish[es] between males and females.”
For reasons I outline in the post quoted above, a decision striking down Proposition 8 because it qualifies as gender discrimination would have much stronger support from logic, precedent, and the original meaning of the Fourteenth Amendment than one striking it down because it discriminates on the basis of sexual orientation.
In recent years, unfortunately, the sex discrimination argument for gay marriage has not gotten much attention. I am glad that Justice Kennedy has focused on it. I’m still not optimistic that a majority of the Court will adopt this approach, or even that Kennedy himself will. But, given Kennedy’s status as an influential swing-voter on the Court, his interest will at least help ensure that the issue gets some serious consideration.
A ruling that Proposition 8 discriminates on the basis sex doesn’t automatically mean that it will be invalidated. The Supreme Court will uphold gender-discriminatory statutes if they meet heightened “intermediate scrutiny,” which requires the government to show that the discriminatory law is “substantially related” to the promotion of an “important state interest.” But it is unlikely that Proposition 8 can meet that standard. In the oral argument, Mr. Cooper defended Proposition 8 almost exclusively on the ground that excluding same-sex couples furthers the state’s interest in marriage as a “procreative” institution intended to facilitate child-raising. But, as the justices pointed out, opposite-sex couples are allowed to marry even if one or both partners are clearly infertile (e.g. – because they are too old). Moreover, in California, as in many other states, same-sex couples are allowed to adopt children. Lesbian couples can also bear children through artificial insemination. Given that the state allows opposite-sex couples to marry even if they have no ability to bear children, while forbidding same-sex marriage to couples that can have children and in some cases already do, it’s hard to defend Proposition 8 on the grounds that it facilitates procreation or benefits children in some way.
The procreation rationale is probably enough to pass minimal “rational basis” scrutiny of the type applied to most kinds of classifications. But it’s not likely to cut it under intermediate scrutiny or any judicial inquiry that requires the state to provide a serious justification for engaging in sex discrimination.