It’s obvious1 that laws that allow only opposite-sex couples to marry are sex discrimination. If an employer refuses to hire Mary, but is willing to hire equally-qualified Bob, that’s sex discrimination; if a state refuses to marry Mary to Lucy, but is willing to marry Bob to Lucy, that is likewise sex discrimination.
I’ve been disappointed that this argument hasn’t had more traction in the debate over same-sex marraige, either in popular discussion or in the courts.
Andrew Koppelman writes:
It remains puzzling why the California Supreme Court, in its recent same-sex marriage decision, rejected the most formally powerful argument for its result: the argument that denying licenses to same-sex couples is sex discrimination. The weakness is made clear in this recent column by Steve Chapman, who writes: “while the California Constitution forbids discrimination on the basis of ‘sex, race, creed, color, or national or ethnic origin,’ it does not forbid discrimination on the basis of sexual orientation. The justices somehow found something in the document that the authors thought they omitted.” As I’ve explained earlier, the Court had to work very hard to reject the sex discrimination argument, using tired old arguments that had been used long ago to defend miscegenation laws: since both blacks and whites [both men and women] are equally burdened, there’s no discrimination. […]
I don’t understand the resistance to the idea that the homosexuality taboo is about sexism. Homosexuality and deviation from gender norms (which, of course, are relentlessly hierarchical) are so tightly connected with each other in popular culture that each is normally and easily taken as a marker for the other. A “faggot” or a “dyke” is a person who fails to conform to normal gender norms; the term is routinely applied to people without regard to their sexual behavior.
The court’s reluctance is, I think, evidence that Jack Balkin is right about the dependence of the law on the wider culture in order to determine the crucial question of which arguments are within or outside the bounds of legitimate argumentation. The sex discrimination argument is unfamiliar to people. A few of us have made it in academic journals, but it hasn’t been trumpeted much in the popular culture, and so judges, who one might have expected to be influenced primarily by the soundness of legal argumentation as such, shy away from it. It’s not enough to craft good arguments. You need to be out there, working the media and making these claims repeatedly, thereby making them familiar.
- Obvious to me, at any rate. [↩]