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Will Prop 8 and DOMA be struck down on sex discrimination grounds?

Marriage equality Prop 8 trial

By Jacob Combs

Supreme Court building

Last week, University of Georgia School of Law professor Sonja West–who formerly clerked with Supreme Court Justice John Paul Stevens–wrote a piece in Slate with a tantalizing headline: ‘What Is Anthony Kennedy Thinking?’

As court watchers and LGBT advocates flock to SCOTUSblog (or even the real SCOTUS itself) on Monday and Thursday mornings this June, waiting to find out what the putative swing justice thinks of marriage equality, West’s theory is that we might all be looking at Kennedy’s possible reasoning the wrong way–in fact, she argues, he’s already told us what we might expect.  Here’s the central nugget from West’s Slate article:

In March, during the oral argument about California’s same-sex marriage ban, Kennedy said that he was “trying to wrestle” with a “difficult question” about the constitutionality of same-sex marriage. The question on his mind was whether prohibitions on same-sex marriage are a form of gender discrimination. The lawyer defending the ban, Charles Cooper, responded that this was a case about sexual orientation, not gender, and the argument quickly moved in a different direction.

But we shouldn’t dismiss Kennedy’s question about gender discrimination too hastily. The court’s precedents on gender might offer Kennedy the conservative compromise he is looking for: a way to recognize a constitutional right for same-sex marriage in a limited way.

First, the legal reasoning.  The Fourteenth Amendment’s equal protection clause–nor surprisingly–requires similarly situated classes of individuals to be treated equally.  When a plaintiff sues the government and alleges that a law violates equal protection, they are essentially saying that it treats one class of individuals differently from another class without any reasonable justification for doing so.  In the Proposition 8 case (and the Defense of Marriage Act case, as well), the natural ‘class’ distinction upon which to hang the suit is sexual orientation, since the laws mandate different treatment for same-sex couples compared to their opposite-sex counterparts.

In their original complaint challenging the constitutionality of Prop 8, however, the two California couples who brought the lawsuit also argued that the statute discriminated on the basis of sex as well as sexual orientation.  Here’s the relevant argument from the couples’ complaint:

Prop. 8 also violates the Equal Protection Clause because it discriminates on the basis of sex. It distinguishes between couples consisting of a man and a woman and couples consisting of individuals of the same sex. Thus, the limitation on civil marriage depends upon an individual person’s sex; a man who wishes to marry a man may not do so because he is a man, and a woman may not marry a woman because she is a woman.

This is what West is talking about: there is an argument to be made against Prop 8 that it creates two classes of individuals (those who can marry men and those who can marry women) and then allows or bars entry to those groups on the basis of sex.

As West points out, this isn’t a new idea.  The very first American judicial ruling on marriage equality–the one, in fact, which would contribute a great deal to the eventual passing of the Defense of Marriage Act–was a 1993 decision by the Hawaii Supreme Court which adopted the sex discrimination argument for marriage equality.

In fact, this argument isn’t even new to the Prop 8 case itself.  In his 2010 ruling invalidating Proposition 8, district court judge Vaughn Walker addressed the plaintiffs claims pertaining to sexual orientation and sex like this:

Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

Other district courts who have considered the constitutionality of marriage equality bans have remained unconvinced that such laws can be considered discriminatory on the basis of sex.  In Jackson v. Abercrombie, Judge Alan Kay wrote that Hawaii’s marriage law “is gender-neutral on its face; it prohibits men and women equally from marrying a member of the same-sex.”  Similarly, Judge Robert Jones upheld Nevada’s marriage equality ban in Sevcik v. Sandoval, writing, “the Court finds that for the purposes of an equal protection challenge, the distinction [in Nevada's laws] is definitely sexual-orientation based.”

As West points out, a law isn’t necessarily constitutional just because is applies equally to men and women.  That very argument was made in the landmark Loving v. Virginia case in favor of anti-miscegination laws, which supporters said did not constitute equal protection violations because they prohibited both white and black people from marrying partners of a different race.  To put it simply, the Supreme Court disagreed.

West is right in saying that Justice Kennedy might find it easier to strike down a law like Prop 8 on gender discrimination grounds, because it would save him the trouble of having to decide whether or not sexual identity should be added to the list of classifications which courts are especially careful to consider in equal protection cases.

But a gender-discrimination based ruling which did not also recognize issues of sexual orientation discrimination–while it might indeed mean the end of Prop 8–would be a bit of a cop-out.  Sexual orientation is clearly one of the categories that should be given extra protection by the judiciary.  Justice Kennedy might not be ready to say that yet, but it’s a fact that will become more and more unavoidable.  The gender discrimination track might put off that determination, but it almost certainly won’t do so for very long.

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