Commenting on my post regarding the New York Court of Appeals decision, Tom T. points to Conspirator Dale Carpenter's remarks on the sex-discrimination aspect of prohibiting same-sex marriages.
First, Carpenter is not precisely correct about how the sex-discrimination argument has been received by the courts. He says, "Indeed, even courts favorable to gay-rights claims have either explicitly rejected the sex-discrimination argument (as did the Vermont and Massachusetts high courts in their marriage cases) or have ignored it (as did the Supreme Court in Lawrence)." In point of fact, Goodridge's majority opinion says, "For the reasons we explain below, we conclude that the marriage ban does not meet the rational basis test for either due process or equal protection. Because the statute does not survive rational basis review, we do not consider the plaintiffs' arguments that this case merits strict judicial scrutiny." If the statute does not survive rational basis, then it also wouldn't survive heightened scrutiny. Moreover, the Goodridge concurrence does depend on a sex-discrimination claim:
That the classification is sex based is self-evident. The marriage statutes prohibit some applicants, such as the plaintiffs, from obtaining a marriage license, and that prohibition is based solely on the applicants' gender. As a factual matter, an individual's choice of marital partner is constrained because of his or her own sex. Stated in particular terms, Hillary Goodridge cannot marry Julie Goodridge because she (Hillary) is a woman. Likewise, Gary Chalmers cannot marry Richard Linnell because he (Gary) is a man. Only their gender prevents Hillary and Gary from marrying their chosen partners under the present law. [FN2] [FN2] In her separate opinion in Baker v. State, 170 Vt. 194, 253 (1999) (Johnson, J., concurring in part and dissenting in part), Justice Johnson described the equal protection defect in Vermont's marriage statutes in a slightly different, but no less persuasive, fashion: "A woman is denied the right to marry another woman because her would-be partner is a woman, not because one or both are lesbians. Similarly, a man is denied the right to marry another man because his would-be partner is a man, not because one or both are gay. Thus, an individual's right to marry a person of the same sex is prohibited solely on the basis of sex, not on the basis of sexual orientation. Indeed, sexual orientation does not appear as a qualification for marriage under the marriage statutes. The State makes no inquiry into the sexual practices or identities of a couple seeking a license."Nor does Lawrence ignore the equal protection argument; Kennedy's majority opinion says, "Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants." In other words, the Georgia statute challenged by Bowers could still stand if Lawrence had been decided on sex-discrimination grounds, because that law banned sodomy regardless of the participants' genders. O'Connor's concurrence begins by saying that she does not join the majority in overruling Bowers -- in which she had voted to uphold the Georgia statute -- but only in invalidating the discriminatory Texas law, albeit on the ground that it discriminates against homosexuals rather than its discrimination on the basis of sex.
I am doubtful about relying on classification as "heterosexual" or "homosexual" because sexual orientation categories are not that simple. The male-female binary, notwithstanding the existence of intersexed persons, is far clearer -- even transgendered persons deliberately identify with a particular gender, though a smaller minority of people genuinely eschew all gender classification. Many more people have had sexual experiences that defied their self-identification as gay or straight than have lived as a sex different from the one marked on their birth certificates. If the Texas law is wrong because it discriminates against homosexuals, does that mean it would be OK if Lawrence and Garner had been two hetero-identified men who had been experimenting in a single encounter and gotten caught that one time? The statute's discrimination was clearly based on the sex of the participants, not on their overall sexuality. Implicitly requiring people who want a same-sex marriage to declare themselves homosexual is poor policy, one that excludes people like Barry Winchell who consider themselves heterosexual but who are in love with someone legally of the same sex.
never been persuaded by the sex-discrimination argument. At the formal level, the argument over-reads Loving, a single case from a different and special area of equal-protection jurisprudence (race). Classifications based on race are far more likely to be based simply on racism than classifications based on sex are likely to be based simply on sexism. We have separate bathrooms for men and women; separate men’s and women’s sports teams at public universities; men and women are treated differently by the military; different standards for presuming parentage depending on sex; different penalties and standards for statutory rape depending on sex, and so on. I doubt these sex classifications are unconstitutional, or that they would get anything more than rational-basis scrutiny. Even if we applied intermediate scrutiny to them, they’d probably pass that more forgiving and flexible test.The separation of races was more obviously based in racism than the separation of the sexes in sexism, but just as many blacks would have been happier with a genuinely equal separation, women often are annoyed by sex-segregation that results in unequality: being unable to use the men's restroom when there's a long line for the ladies'; advancement in the military that's limited by access to combat roles; the assumption in statutory rape that a woman who molests your son is doing him a favor, while a man who molests your son or daughter is an abuser. Moreover, the law at issue in Loving did not punish only non-whites; both the white man and the black woman were sentenced to one year in prison for violating the ban. (I'd actually consider this to be a stronger point of distinction; if same-sex couples are allowed to cohabit and have sex without fear of prosecution, as Lawrence requires, their situation is not parallel to that of Richard Loving and Mildred Jeter.)
Further, I understand Loving to have concluded that antimiscegenation laws, however “equal” they were in form, to have one basic and overriding purpose that deeply offends the heart of the 14th Amendment: the maintenance of “White Supremacy.” While I agree that the limitation of marriage to opposite-sex couples both reflects and reinforces traditional gender roles, I think it is a crabbed view of traditional marriage to say that that is all it reflects or to say that maintaining a gender hierarchy is even its dominant cultural function nowadays. Many, many legal academics would strongly disagree with my view.
The Supreme Court narrowly upheld a sex-discriminatory statutory rape law in Michael M. v. Superior Court, with four justices voting to invalidate the statute. It is worth noting that this law was focused on sexual intercourse between men and women, and that the legislature's proferred rationale was to prevent unwed teen pregnancy. Whether a law prohibiting sexual activity that could not possibly result in pregnancy also was covered by the decision is unclear. The sex-discriminatory draft was approved 6-3 in Rostker v. Goldberg, again on the fairly narrow ground that because women were excluded from combat and the draft was mainly intended to fill combat roles, Congress justifiably didn't include women in Selective Service registration. Both cases were decided before a woman joined the Supreme Court.
I wonder what Carpenter believes to be the purpose, that does not reflect and reinforce traditional gender roles, of refusing marriage to same-sex couples. Advocates for such a refusal as a matter of public policy (I am distinguishing from those who advocate courts' refusing it as a matter of judicial restraint) generally either incline to the Maggie Gallagher belief that the preservation of Western civilization requires Western women to bear and raise children, or to "the common-sense premise that children will do best with a mother and father in the home" noted by Judge Robert Smith's majority opinion. It's quite difficult to make a sound argument that gender is relevant to marriage, without saying what it is about gender that's relevant. I have yet to see the claim that one needs a mother and father in the home so the former can be the breadwinner, lawnmower and sports coach, while the latter is the primary domestic caretaker and chooser of dolls. These task sets are equally important and demanding, but they undeniably have different gender associations, have different consequences for each party in divorce and result in different Social Security allocations.
Nor do I see any suggestion in Geduldig that "the Supreme Court has suggested that legislative classifications based on biological differences between men and women get only rational-basis scrutiny." If anything, Stewart's majority opinion scrupulously avoids mentioning biology and gender; it simply states that California can choose to limit the conditions its disability insurance program will cover if such limitations are related to the need to keep the self-supporting program affordable for low-income workers. Under this guideline, California could refuse to offer coverage for any disability that it perceived as likely to be too expensive, and workers who thought themselves likely to encounter that disability could look for other disability insurance that would cover it. (A sensible way to choose any form of insurance.)
In his next post on Hernandez, Carpenter notes that the New York Court failed to explain why not recognizing same-sex marriages would make opposite-sex marriages better, and concludes,
I am not saying that existing marriage laws can’t satisfy rational basis review. It would be surprising if they couldn’t satisfy it, notwithstanding the conclusion of the majority of the Massachusetts high court in Goodridge. In fact, the best example of the application of rational basis to uphold the exclusion of gays from marriage is still Justice Cordy’s dissent in that case. His opinion is at once respectful of homosexuals’ claims, temperate in tone, closely reasoned, and a model of the kind of judicial humility associated with the test. By contrast, the New York decision is remarkably thin.The concurring opinion in Hernandez, however, quotes Cordy's dissent and essentially adopts it. I find the claim that marriage in the Anglo-American legal tradition has been about procreation to be questionable, considering that courts have held valid marriages in which procreation was impossible as long as sex could occur. In such decisions, judges rebuffed the notion that the state recognized marriage solely or even primarily as purposed for procreation, and instead affirmed the purposes of companionship and sexual intimacy.
Lest this post come off as wholly disagreeable, I think Carpenter's first substantive post, on due process and fudamental rights, as well as his latest on what Hernandez portends for the future, are both spot-on. The reminder of the difficulty of getting same-sex marriage lawsuits into federal court is worth keeping in mind; even a challenge to the District of Columbia's law went to DC courts rather than federal ones.