The Promise of Gender Analysis for Resolving Same-Sex Marriage

NYT, Gender Bias Issue Could Tip Justice Roberts Into Ruling for Gay Marriage

In a telling moment at Tuesday’s Supreme Court arguments over same-sex marriage, Chief Justice John G. Roberts Jr. suggested that he may have found a way to cast a vote in favor of the gay and lesbian couples in the case.

 

“I’m not sure it’s necessary to get into sexual orientation to resolve this case,” he said. “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

 

That theory had gotten only slight attention in scores of lawsuits challenging bans on same-sex marriage, and it is unlikely to serve as the central rationale if a majority of the court votes to strike down such bans, an opinion likely to be written by Justice Anthony M. Kennedy.

 

But it could allow Chief Justice Roberts to be part of a 6-to-3 decision, maintaining some control over the court he leads and avoiding accusations from gay rights groups that he was on the wrong side of history.

 

"This would be a clean, formalistic way for the court to resolve the case,” Andrew Koppelman, a law professor at Northwestern University, said in an interview. “It could just apply existing sex discrimination law.”

 

 

Professor Koppelman and other scholars filed a brief urging the court to strike down the four same-sex marriage bans before it on sex-discrimination grounds. The chief justice’s musings were similar to a passage in the brief.

 

This Loving argument appeared in some of the first cases of same-sex marriage in Hawaii and Alaska. More recent decisions, however, have rejected this gender argument because the state's intent or animus is not directed at sex - either men or women, in the way that inter-racial bans were directed at blacks and Asians. With a disconnect between the law's classification and the intent, courts have found no sex-based discrimination.

 

What might help get at the sex-based intent/animus argument is the rationales same-sex marriage opponents make about the need for two different gender parents, i.e. the need for a nurturing-type parent of the woman or in the case of lesbians the need for a disciplinarian of the father. This stereotypical typecasting gets closer to seeing a nexus between classification and intent sufficient to strike down same-sex marriage bans as sex discrimination.