One of the reasons I oppose prohibitions on same-sex marriage is because I don't like the government using our genders to determine how we must act. Not only do I believe this is true even when it comes to marriage, I believe it is true especially when it comes to marriage. I have no desire for the government to decide I cannot look after my children because a husband must provide for his family. Nor do I want them to decide my wife cannot work outside the home because a child needs his mother at home with him. It's not surprising, then, that I find the ban on same-sex marriage to be an obvious form of sex discrimination that should not be permitted. Andrew Koppelman discusses this argument at length in his book (shown at left) and elsewhere. [The book also does a great job of explaining some of the conflict-of-laws issues involved in SSM]. Koppelman deals with the objections raised to the sex discrimination argument. The one I hear the most often is "It's not discrimination because neither men nor women can marry someone of the same sex". The standard response is the same was said about interracial marriage prohibitions, which leads to the standard rejoinder that such a prohibition was unconstitutional only becuase it promoted white supremacy.
Last week I noted that Eugene Volokh had given a variation on this theme, by pointing out that whereas separate but equal was not allowed for racial classifications, they seemed to be permissible [at least in a few cases] when it comes to gender. In response I referred to the 1948 case of Perez v. Sharp [also known as Perez v. Lippold] which I felt illustrated two things quite well. One is that the discrimination must be looked at from the individual perspective and not the group perspective. This point was reaffirmed by the Supreme Court of the United States sixteen years later in McLaughlin v. Florida (which made no reference to any motives of white supremacy). The second point Perez explained was that even if separate but equal were allowed (which it was for race in 1948), such a system can never work with regards to whom one may marry. Both of these points were made independently of any analysis about motives. The issue of racial superiority only came in later in an examination of whether there was a compelling justification for the discrimination. Interestingly Koppelman does not seem to mention Perez in his book relying instead on McLaughlin (in part perhaps because that was a national precedent and the former was only in California). Still I find the logic and language of Perez to be quite persuasive. As I realize that most readers will not read the entire Perez decision, I present here a few relevant excerpts [with internal citations omitted]:
The decisive question, however, is not whether different races, each considered as a group, are equally treated. The right to marry is the right of individuals, not of racial groups. The equal protection clause of the United States Constitution does not refer to rights of the Negro race, the Caucasian race, or any other race, but to the rights of individuals. In construing the equal protection of the laws clause of the Constitution, the United States Supreme Court has declared that the constitutionality of state action must be tested according to whether the rights of an individual are restricted because of his race. Thus, in holding invalid state enforcement of covenants restricting the occupation of real property on grounds of race, the Supreme Court of the United States declared: "The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.".... Similarly, with regard to the furnishing of sleeping, dining, and chair car facilities on trains, the Supreme Court of the United States has held that even though there was less demand for such facilities among Negroes than among whites, the right of a member of the Negro race to substantially equal facilities was a right of the individual and not of the racial group....In these cases the United States Supreme Court determined that the right of an individual to be treated without discrimination because of his race can be met by separate facilities affording substantially equal treatment to the members of the different races. A holding that such segregation does not impair the right of an individual to ride on trains or to enjoy a legal education is clearly inapplicable to the right of an individual to marry. Since the essence of the right to marry is freedom to join in marriage with the person of one's choice, a segregation statute for marriage necessarily impairs the right to marry.
Nor can any reliance be placed on the decisions of the United States Supreme Court upholding laws requiring segregation of races in facilities supplied by local common carriers and schools, for that court has made it clear that in those instances the state must secure equal facilities for all persons regardless of race in order that no substantive right be impaired. In the present case, however, there is no redress for the serious restriction of the right of Negroes, mulattoes, Mongolians, and Malays to marry; certainly there is none in the corresponding restriction of the right of Caucasians to marry. A member of any of these races may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains.