Why Courts Are Reluctant To See Marriage Discrimination As Sex Discrimination

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.

  1. Obvious to me, at any rate. []
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17 Responses to Why Courts Are Reluctant To See Marriage Discrimination As Sex Discrimination

  1. 1
    Siobhan says:

    Exactly the reasoning behind the same-sex marriage ruling here in Canada.

  2. 2
    Robert says:

    Perhaps it’s a tired old argument, but it seems like discrimination has to be based on intent. If I demonstrate a bona fide need for the people that I hire to be able to type 150 WPM, and it turns out that this disqualifies more men than women, or more Asians than Jews, or whatever, I’m not discriminating. I AM discriminating if I decide “I don’t want to hire any Asians” and go out and find some test that just happens to block 90% of Asians; it’s my intent that matters.

    Similarly, laws against same-sex marriage aren’t intended to make life rough on one gender or the other, they’re intended to discriminate against gay people.

  3. 3
    RonF says:

    if a state refuses to marry Mary to Lucy, but is willing to marry Bob to Lucy, that is likewise sex discrimination.

    Only if you accept a re-definition of marriage from what it has always meant – a bond between a man and a woman – to what those who favor this change want it to mean – a bond between two people who profess to love each other regardless of their gender.

  4. 4
    Stentor says:

    Contra Robert, I don’t think intent should matter at all. The point of opposing discrimination is to keep classes of people from being harmed, not to examine the purity of alleged discriminators’ hearts. In the typing speed example, the employer would be exonerated not because they didn’t *intend* to hire mostly women, but because there’s another important interest — the need to have employees who are good at a core function of their job — that outweighs the harm of the discriminatory outcome. Consider, for example, a movie producer hiring white actors to play white characters and Latin@ actors to play Latin@ characters — that would fail the intent test, since the producer is explicitly picking them based on race, but it would pass the “another important interest” test because looking like a member of a certain race is important to portraying certain characters in film.

  5. 5
    Tara says:

    Ron,

    You don’t have a choice but to accept the changed definition as soon as a government that has a constitutional commitment to nondiscrimination among citizens begins to administer marriage. It’s the government adoption/co-opting of marriage itself that changes the definition, by subjecting it to a new constitutional framework.

  6. 6
    nobody.really says:

    if a state refuses to marry Mary to Lucy, but is willing to marry Bob to Lucy, that is likewise sex discrimination.

    Only if you accept a re-definition of marriage from what it has always meant – a bond between a man and a woman – to what those who favor this change want it to mean – a bond between two people who profess to love each other regardless of their gender.

    As Tara notes, that statement merely begs the question, what justification does government have to accept one definition over the other?

    As I understand 5th/14th Amendment jurisprudence, the plaintiff bears the burden to show that a government policy discriminates, either by arguing malicious intent or disparate impact. Having done so, the burden shifts to the government to show that the policy bears a nexus to a bona fide governmental purpose, and that there are no less-discriminatory ways to achieve the same purpose.

    Here Amp argues that there is no legitimate state purpose in discriminating between a woman’s right to marry a man and a woman’s right to marry a woman, and between a man’s right to marry a woman and a man’s right to marry a man. The statement “Well, I accept a traditional definition,” is no argument at all. By tradition, minorities, women (and men) were excluded from all kinds of stuff. These are the very traditions that anti-discrimination laws were adopted to eliminate.

    Robert, however, raises a subtler challenge: Can we justify striking down traditional marriage laws without reference to discrimination on the basis of sexual orientation?

    Again, Amp argues that there is no need to reach the question of whether traditional marriage laws discriminate on the basis of sexual orientation because it’s clear that they discriminate on the basis of gender, and there’s no showing of legitimate governmental purpose for the discrimination. But government never bears the burden to show a legitimate governmental purpose in its policy until after the plaintiff demonstrates malicious intent or disparate impact. And, Robert argues, traditional marriage laws evidence neither malice toward either gender, nor disparate impact with respect to either gender. Absent a claim of discrimination on the basis of sexual orientation, this whole case fails.

    The issue here is separation of powers: Under what circumstances should a court intrude upon the work of the legislative or executive branches? If courts intruded whenever they merely disagreed with the policies adopted, they’d undermine our democratic system. So they create a presumption against intervention. Courts will not intervene merely to protect people from pointless, burdensome policies; the laws must violate some larger principle to trigger judicial action.

    On the basis of 15 minutes’ reflection, I think Robert may have the better side of the argument. As much as I regard traditional marriage laws to impose burdens without promoting any legitimate governmental purpose, I don’t see how that, by itself, warrants a judicial remedy.

    That said, here are some potential substitute avenues of argument:

    1. Gender discrimination based on gender essentialism: Argue that members of one gender (women?) have a greater interest in marriage than members of the other gender. In this case, a policy that grants marriage licenses only to mixed gender couples, while facially neutral, would in fact burden one gender more than the other, thereby violating prohibitions on gender discrimination.

    2. Contract rights: Argue that marriage is merely a form of contract, and government policy is interfering in some people’s contract rights.

    3. Deprivation of property without due process: Present evidence showing that marriage promotes the economic well-being of the two people who are lucky enough to enter into it. Marriage reduces transaction costs between the members, reduces the resources expended on attracting sexual partners, provides insurance by pooling risk, etc. In brief, show that government, by withholding a marriage license, impoverishes the people who are thereby denied. Even if such a policy could be found to promote a legitimate governmental purpose, it could not be justified without just compensation, any more than government could justify commandeering a business during wartime. This argument would not ban the current policy, but it might require government to compensate couples who were denied a marriage license.

    Just a thought.

  7. 7
    Concerned Adult says:

    N.R: As Tara notes, that statement merely begs the question, what justification does government have to accept one definition over the other?

    I believe marriage as a socially-sanctified act evolved out of the necessary desire to acknowledge obligations between relatives, particularly between man, woman and child, a thorny subject in which all members are capable of putting their desire for personal advantage above the good of the others, in particular the child, who is the most vulnerable and most innocent. If a society considers the care and support of a child to belong to those who brought it into the world and wishes it understood that it is so, it demands an institution that has that meaning and no other.

    In brief, show that government, by withholding a marriage license, impoverishes the people who are thereby denied.

    All of the advantages you cite are valid but are derived from living together, not from a legal recognition of a relationship. They have never been denied living together and they have never been denied marriage. Or denied families. They have mothers and fathers like everyone, sisters and brothers like everyone, sons and daughters like everyone. The difficulty is the question are their rights and obligations regarding them are the same rights and obligations of everyone else? Meaning, their orientation is irrelevant: a homosexual father has the same connection to his child as the heterosexual father has, whether that’s an objective bond or a voluntary bond. In other words, we must decide whether a parent-child bond or parent-parent bond is independent of their actual desires, or is dependent and subordinate to them.

  8. 8
    hf says:

    If I demonstrate a bona fide need for the people that I hire to be able to type 150 WPM, and it turns out that this disqualifies more men than women,

    I don’t understand the objection, since the court rightly decided California had no bona fide need to forbid same-sex marriage. The claim that the state’s invalid reasons may not have included sexism doesn’t seem to matter once you grant the “invalid” part.

    The Balkin reference reminds me of something else that’s puzzled me. How can we ever try to influence voters and legislators without running the risk of influencing judges? Because guess what, forbidding people to marry those they love can lead to lawsuits, and attempts to sway public opinion may affect their cases.

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  10. 9
    aroundthebend213 says:

    Only if you accept a re-definition of marriage from what it has always meant – a bond between a man and a woman – to what those who favor this change want it to mean – a bond between two people who profess to love each other regardless of their gender.

    The traditional definition of marriage is sexist and violates equal protection. Just like the traditional definition of ‘voter’ was racist, sexist and classist and violated the same. So we changed it, making civil rights law more internally consistent. You can defend the traditional definition of marriage as right or good, but that doesnt make it less sexist.

  11. 10
    aroundthebend213 says:

    If a society considers the care and support of a child to belong to those who brought it into the world and wishes it understood that it is so, it demands an institution that has that meaning and no other

    If that was true you might have a point, but infertile people, childless /free people, andro and menopausal people, divorced people, deadbeat parents, etc are all allowed to marry, as long as they are marrying someone of the opposite sex.

    As for the “rights” one gets by living together, the facts do not support your argument.

  12. 11
    Ampersand says:

    Only if you accept a re-definition of marriage from what it has always meant – a bond between a man and a woman – to what those who favor this change want it to mean – a bond between two people who profess to love each other regardless of their gender.

    In addition to what others have said, I’d point out that marriage has been “redefined from what it has always meant” many times. For instance, when the law forbidding a widower from marrying his deceased wive’s sister were repealed, it was a HUGE controversy, and traditionalists were worrying that this would mean the end of marriage, or at least the replacement of marriage with some sort of sexual free-for-all orgy.

    But that was a minor change compared to the end of coverture; ending coverture laws really did change the meaning of marriage, completely altering the legal and financial relationship between husbands and wives. And yet, today, you’d really have to scrape the bottom of the barrel to find anyone seriously arguing for the restoration of coverture. Contrary to many predictions, the sky did not fall.

    Arranged marriages used to be the vast, vast majority of marriages. Now that’s gone, too, in most of the industrialized world, except for a few holdout subcultures.

    In a way, it’s true that legal recognition of same-sex marriage changes what marriage means. But the meaning of marriage is always changing, both legally and socially. Much as conservatives might wish it otherwise, history didn’t come to a dead halt in 1950. Just because it’s changing, doesn’t make it wrong.

  13. 12
    james says:

    Amp, what is your opinion on equal pay laws?

    As I understand it (among other things) these give people a right to be paid the same as a comparitor of the opposite sex doing the same job. So if Mary is getting $10/hr for doing the same job as Jim, who is getting $12/hr, she can sue for equal pay. But if Bob is getting $10/hr for doing the same job as Jim, who is getting $12/hr, he can’t sue for equal pay. I’m wondering if you think this is sex discrimination, based upon the same reasoning as your marriage example? Were Bob a woman, he would have the right to sue.

    I think courts have dodged the issue because (as I think the above example indicates) this logic might have far broader implications than just changing marriage law.

  14. 13
    Ampersand says:

    James, can you provide me a link documenting an equal pay law such as the one you describe? Because I’m unaware of any existing equal pay law that works that way.

    If a law such as you describe exists, I would be against it (and I would frankly wonder if it would be constitutional). However, I am in favor of many existing equal pay laws.

  15. 14
    james says:

    So far as I am aware almost all equal pay laws work like that. The big one, the US Equal Pay Act 1963 reads:

    No employer … shall discriminate … between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work .”

    This is what you do in practice:

    To make out a discrimination claim under the Equal Pay Act, an employee (male or female) must show only that (1) in the same establishment (2) the employer pays different wages to employees of the opposite sex (3) who perform equal work on jobs requiring equal skill, effort, and responsibility and (4) the jobs are performed under similar working conditions.

    http://www.hrhero.com/hl/060305-tip-epa.shtml?home

    Are here’s a court’s opinion:

    As noted earlier, all of the persons involved in this case are women. Although the federal Equal Pay Act was designed to prohibit discrimination based on sex, there is no indication that it prohibits paying employees of the same gender different wages for the same work based on skill, education, and experience. Therefore, the Appellants cannot establish a prima facie case under the federal Equal Pay Act or the West Virginia Equal Pay Act.

    http://www.state.wv.us/wvsca/docs%5Cfall94%5C21864

    I’m torn. It would be pretty ironic if the EPA was sexually discriminatory. But I can see why they wrote it like that. Having a general right to equal pay has a cost; people thought preventing women being discriminated against because they were women was worth the cost, but thought other types of discrimination for other reasons wasn’t. They didn’t want bankers to be able to sue because Beta Male wasn’t getting paid as much as Alpha Male. That’s silly. They weren’t interested in that harm. But Beta Female should be protected.

    That’s one reason I think the ‘miscegenation defence’ – that as men and women both have the same right to equal pay with someone of the opposite sex there’s no discrimination – may have something to it.

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  17. 15
    Thene says:

    James, the flaw in your argument is that there’s no institutional discrimination that is driving the employer to pay Bob less than Jim. There is institutional discrimination that drives the employer to pay Mary less than Jim because she’s a girl, just like there’s institutional discrimination that bans you from marrying Barry because neither of you are girls.