Sonja West, an associate professor at the University of Georgia School of Law and a former law clerk to Justice John Paul Stevens, writes at Slate on why Justice Kennedy might rely on gender discrimination law to find a constitutional right to same-sex marriage:
The gender-discrimination framework may appeal to Kennedy in other ways, too. During oral argument, he expressed worry about the court moving too far too fast. … 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.
It’s probably wishful thinking at this point. But too bad this line of argument wasn’t among those presented before the court.
10 Comments for “Gay Marriage Bans as Gender Discrimination”
posted by Tom Scharbach on
It’s wishful thinking. But too bad this line of argument wasn’t among those presented before the court.
Why, if it is wishful thinking? It is certainly a legal stretch, a complete recasting of the case, given the issues presented at trial and on appeal.
To my mind, the gender-based argument is a sophist argument, missing the essence of the discrimination involved entirely. Just as the essential discrimination involved in the Loving case was not discrimination against either race, but against mixed-race couples, so the essential discrimination involved in the Prop 8 case is not discrimination against either men or women, but against same-sex couples.
We do not need to resort to subtle, superficially plausible misdirection to make our case before the courts, and we should not. I glad that Olson nor Boies made a straight-up, frontal attack on marriage discrimination.
posted by Tom Scharbach on
Technical note: “ I glad that Olson nor Boies made a straight-up, frontal attack on marriage discrimination.” should read ” I glad that Olson and Boies made a straight-up, frontal attack on marriage discrimination. ”
BTW, with respect to Justice Kennedy, he has no nned to resort to gender to reach a decision overturning Prop 8. The 9th Circuit opinion was firmly grounded in Romer v. Evans, an opinion authored by Justice Kennedy.
A Romer-based decision would be legally conservative (relying on existing precedent), overturning Prop 8 while reserving the broader constitutional question to a future date.
posted by Houndentenor on
Any clues as to when the decision will be announced?
posted by Tom Scharbach on
In normal course, the decision will be announced next Monday or Thursday, or the Monday or Thursday following, the four remaining decision days before the Court’s summer recess. If not then, the decision won’t be announced until the Court reconvenes next Fall.
The reason for the expectation about a decision during the next couple weeks is that the Court normally disposes of cases heard each term during the term; the Court has, however, held cases over in the past, so the expectation is only an expectation.
posted by Aubrey Haltom on
We have a good family friend who interned in Mary Bonauto’s law office during the Massachusetts marriage equality arguments before the state supreme court.
She (the intern, now attorney) has discussed how gender discrimination was always considered as an argument for equality – precisely because there was significant legal precedent behind it.
I understand Tom’s argument re: the essence of discrimination, and the need to address that head-on.
But I understand the gender discrimination argument as well.
An anecdote, I don’t know how applicable to the current topic, but I’ll tell it anyway.
My family (me, husband, son) traveled to Missouri recently. The hubby is from Mizzou (south of St. Louis), and his cousin was getting married.
A very big, elaborate, traditional wedding – with biblical readings about women submitting to men, etc…
As I sat through the wedding, the dinner and reception, I marveled at how rigid gender identity is in some parts of the country.
Actually, it’s beyond rigid. It is oppressive. ‘A woman’s role is xxx; a man’s role is yyy’ .
Though my husband and I have been together 25 years (including a now 7-year old child), and have been out to his family that whole time – our presence alone caused a slight shift in the dynamic of the wedding.
Kids didn’t know how to process our son – he didn’t have a mother attending his every need. No, he had me running after him, doing the ‘primary parent’ role. You could see the confusion in so many people’s eyes.
Every time I think this country has moved significantly forward on a variety of issues, I can visit our families (hubby’s in Missouri, mine in Texas) to get a sober reminder of how gender definition is so hardwired in the populace.
Without a SCOTUS ruling that encompasses our rights nationally, we’re going to be f***ed in most of the country for far too many years.
posted by TomJeffersonIII on
I suspect that the ruling will {probably} be based on what the justices think that the nation is ready for.
They are leery of pushing too far ahead of the nation — largely because of the backlash that followed Roe v. Wade. Yet, they also know that ‘our side’ has the far better legal arguments and is on the right side of history.
posted by Kosh III on
“Without a SCOTUS ruling that encompasses our rights nationally, we’re going to be f***ed in most of the country for far too many years.
Regardless of a ruling we’ll be fraked here in Tennessee where the conservative/gop/fascists dominate.
posted by Lymis on
It is before the Court – the lawyers didn’t discuss it in their oral arguments, but it feature solidly in Walker’s ruling, which the circuit court narrowed dramatically, but it’s part of the record and part of the case.
The real point, though is that it isn’t actually gender discrimination as the goal that is in question. Nobody is putting down women as women by not allowing them to marry each other, or privileging women by not letting men marry men.
What’s going on is that gender identification is being used as the mechanism for engaging in discrimination based on sexual orientation. Straight men and straight women are free to marry the partners of their choice. Gay men and lesbian women are not. The intention and the effect is discrimination based on sexual orientation.
There’s an old legal case where the conclusion was that “a law against hats is a law against Jews” or some such – recognizing that what the law does facially is immaterial if the intent and the effect is impermissible discrimination – in that case, since Orthodox Jews are required to cover their heads, a law against hats discriminates against them.
The gender discrimination idea, while literally true, was never more than a potentially valuable ploy to get recognition of our rights within a court system that wasn’t prepared to grant us personhood.
While it might have been nice to have it included as an overt aside so that it was on the table, it never should be our main point or our main argument.
posted by HeyWTF on
I agree that the logic of same-sex marriage is most cleanly explained by the discrimination on the basis of sex. Nevertheless, it is difficult to write a legal argument explaining why it is discriminatory without consulting to other inter-discipline studies.
After all, people didn’t realize that separate-but-equal is violation of equal protection for nearly a centry, even after the passage of the 14th amendment. Even then, some sects of legal commentariats today still object to the use of sociology in the Brown & Board of Education. It’d have been difficult, in a society where blacks and whites were equally populated and possess seemingly equal political /economic power, to show why exactly ban on miscegenation is a discrimination.
Imagine the difficulty writing a legal opinion with the historical workings of hetero-normative dichotomy and its patriarchical effects, and why marriage norms based on those serve to oppress both sexes.
So we take one step at a time. I have no doubt one day it will become plainly obvious to everyone, just as ban on miscegenation did. (Heck, even Justice Scalia recognized it in Oncale v. Sundowner)
posted by HeyWTF on
BTW – While sex discrimination rationale is the most coherent and logical argument in Constitutional attack on DOMA, but even recognizing discrimination on the basis of sexual orientation – which is inherently discrimination on the basis of sex, even though people don’t seem to acknowledge – would be a progress. Justice Kennedy wants to make this plain equal-protection issue as that of “State’s Rights.” Ugh.