Galois

You Could Also Say That About Other Couples

On this site I have tried to explain in detail my views on same-sex marriage.  Among other reasons I have given for my support, and upon which I have elaborated over the course of countless posts, are that I find the use of gender classifications unwarranted and problematic, I think that marriage would greatly benefit children of same-sex couples, and it would help society and the families involved by promoting and protecting stable and secure relationships.  Here and elsewhere I have heard these arguments brushed aside by the remark that they are "just as applicable to other family arrangements that are also denied a right to marriage".  This is a strange sidestep.  For it says nothing about the arguments themselves, for example whether allowing same-sex couples to marry would indeed promote stable and secure relationships or whether that would be a good thing.  Instead it merely asserts that the arguments could also be used in favor of allowing other couples to marry who are now currently prohibited.  If this were true, then we would have arguments in favor of allowing those couples to marry.  Presumably those making this claim, though, find something problematic in allowing these other couples to marry. So even though there are arguments in favor of allowing them to marry, there must also be arguments against allowing them to marry which outweigh these.  Now perhaps there are also arguments against allowing same-sex couples to marry that would outweigh these as well.  But then those arguments should be presented and weighed against these arguments in favor.  Simply saying these arguments could be used elsewhere does nothing to deny that they are arguments in favor of allowing same-sex couples to marry.

That being said, are these arguments really "just as applicable" to other couples?  Well let's examine each in turn.

No other couple is being denied the ability to marry based on gender classifications.  So that argument can't be directly applied to other couples.  The claim must be that a different equal protection argument could be made.  What is the classification involved in those cases?  Preexisting familial relationships. Now it seems strange to argue that we should be just as skeptical of this type of classification as we are of gender classifications.  Hence many state constitutions have provisions like Massachusetts:

Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.

It would be especially strange here, though, when those making this claim (that the state should be skeptical of classifying based on familial relationships) would then turn around and ask the court to recognize their familial relationships.

What about children?  We are reminded that a parent and grandparent might also be raising a child together.  Is that comparable to the case of two parents who adopted a child together?  Of course not.  In the former case there is one parent and the other person already has a formal relation to the child, grandparent.  It is the parent who has primary and ultimate responsibility for the child. This is not the case with the child with two parents who have an equal responsibility to the child and must decide together what is best for their family.  But I have also argued the benefit marriage would provide for a child in the situation of a parent and stepparent.  Is the grandparent at least comparable to a stepparent?  While this comparison is certainly more apt than the comparison to a parent, there are still some differences that are quite relevant here.  Consider the case of a single parent who finds someone with whom he she becomes seriously involved to the point of them living together.  That relationship could certainly impact the child, and I would venture it would be better for the child for the newly formed family to be stable and permanent.  They should all be able to live with the expectation that the relationship will last and that the stepparent is not just a temporary visitor in the child's life.  This would be better for the child than a steady stream of boyfriends or girlfriends moving in and moving out.  Do we have the same situation with a grandparent? No. For one thing there won't be a steady stream of grandparents moving in and moving out.  Secondly the relationship between the parent and grandparent (his or her parent) is already a well established and secure relationship.  Even if they reach a point where the grandparent no longer lives with the family, he or she is still likely to be a part of the child's life.  I would say that it would be a very bad idea if we made the relationship between grandparent and child dependent on the the parent and grandparent forming a new exclusive bond.

What about the notion of stable and secure relationships?  Do we want relationships between family member to be stable and secure?  Of course, but we don't need marriage for that and the idea it is necessary could make other family relationships less stable and secure. The key difference is that marriage makes new family.  Close family members already have relationships with legal and cultural implications that are formed generally from birth.  When a couple marries it is part of the process of two people who came to know, love, and trust each other making a commitment to become a family and take on these new obligations to care for each other.  The key to this is the promise of permanence.  As Maggie Gallagher and Linda Waite write in their book, The Case for Marriage, write:

The promise of permanence is key to marriage's transformative power. People who expect to be part of a couple for their entire lives--unless something awful happens--organize their lives differently from people who are less certain their relationship will last.  The marriage contract, because it is long-term, encourages husbands and wives to make decisions jointly and to function as part of a team.  Each spouse expects to be able to count on the other to be there and to fulfill his or her responsibilities.  This expectation of  a long-term working relationship between husband and wife leads to substantial changes in their behavior, of which the most important is, perhaps, what economists call specialization.

But relationships with other family members (parent-child or sibling) are already expected to be permanent.  They know from day one that it is expected to be permanent and don't need to undergo this transformation at some later point.  (And the idea that they do, could weaken the security of existing relationships).  Nor are such relationships based on the same emotional connection as marriage.  Again as Gallagher and Waite write:

To be successful, marriage needs to meet some of the emotional needs of the partners.  Individuals may have many emotionally fulfilling relationships--with children, with parents, with their siblings, or with friends.  But the emotional relationship that underlies marriage is fundamentally different from these because of the couple's exclusive sexual bond.

So I don't buy the claim that these arguments apply just as well to other couples who cannot marry, and even if they did that does not make the arguments any less valid.  The more this issue is debated, the more it seems that the promise of permanence is going to be key to the discussions.  Those who support marriage (or at least civil unions) believe that it is also important for many reasons for gay and lesbian relationships to undergo this transformation.  It is the one of the key differences between marriage and cohabitation.  Those that oppose even civil unions generally don't want gay and lesbian relationships to ever take on this promise of permanence.  They view heterosexuality as the ideal that all should strive towards, and for such relationships to undergo this transformation would be to acknowledge their permanent rejection of heterosexual relationships.  To people with such views there is not much that I could say to change things.  They may come to see things differently someday, but it won't be because of what I write, rather it will be because of who they know. 

 

When Is A Classification Not a Classification?

Nephtuli continues our discussion with two new posts concerning same-sex marriage and gender classifications.  In the first he seems to argue that same-sex marriage prohibitions might not even classify based on gender.  It all depends on how we word it...

Courts have to frame the issue a certain way, and how they frame it has huge practical ramifications. If we say that the law requires men to marry women and vice versa, then the law is classifying based on gender and would be subject to heightened scrutiny. But if we say that the law is merely requiring both parties to do the exact same thing (i.e., marry people of the opposite gender), then there is no gender classification but there is a classification based on sexual orientation.

So states which say that marriage is the union of a man and a woman classify based on gender.  Those that say marriage is the union of two people of different genders do not classify based on gender.  It sounds weird to me.  First of all it would imply we could avoid racial classifications just by making reference to couples of the same race.  Under this definition of "classification" a policy which required prisoners be held in cells only with prisoners of the same race wouldn't be using racial classifications.  Well, not quite.  It seems it is up to the judge to decide how he or she wants to phrase things.  All "racial laws" get phrased in the way so that it classifies.  It's not clear whether judges have any choice when it comes down to "racial laws", but as for "gender laws" Nephtuli writes

Judges have total discretion over this point, sort of like when they have to figure out the proper level of abstraction. Of course we could also say that the judges simply figure out which way they want to rule and frame the issue accordingly, but that would be activism, wouldn't it?

His definition of "classification" does seem to invite this sort of activism.  In a comment to this thread at Alas, a Blog (note the new address!) Nephtuli puts it bluntly:

A court can choose to say, like Gabriel, that there is a gender classification or it can choose, like me, to say there is no gender classification.

It's entirely up to the court.  I certainly hope the courts choose wisely.  Fortunately Nephtuli gives the courts some guidelines in deciding how to choose:

I'm talking about looking at the intention of the authors to determine in what way to construe the law; clearly there was a goal to classify in some way when passing this law. The Court should look at what that goal was and find the classification based on that goal. 

So we must look at whether the goal was to classify based on gender.  Now this is sounding even stranger.  Either the law uses gender classifications or it doesn't.  An unintentional classification is a classification nonetheless.  And what does it even mean to say "clearly there was a goal to classify"?  Classification is never a goal.  It is a tool used to achieve some other goal or goals.  The whole point of equal protection analysis is to see whether the end goals of the policy justify the means of the classification.  If the law makes use of a suspect classification in order to achieve its goal it might be stricken either because the goal was not important enough or the goal could have been achieved without making use of the classification.  If the only problem occurred when laws classified just for the sake of classifying it would be rather silly.  If the goal of the law is to classify, we subject the law to scrutiny and ask what is the goal of the law.  (Such laws would always be narrowly tailored to achieve the goal, for how can one classify without classifying? But how can classification itself be a compelling state interest?).  Clearly Nephtuli is using "classification" to mean something quite different from what I take it to mean, and I honestly can't figure out what he means by it.

What I mean by classification--and I had thought this was what everybody means by it--is the placement of individuals into two or more different classes based upon some characteristic.  If that characteristic is race we say it is a "racial classification".  If that characteristic is gender we say it is a "gender classification" and so on.  Under this (fairly common) definition one can objectively--and easily--determine whether the law classifies based on some characteristic.  Namely, if some outcome is dependant upon determination of that characteristic then the law or policy will be said to classify based upon said characteristic and we can begin to argue whether the state was justified in using the characteristic.  That the marriage laws classify based on gender is obvious.  If anyone had any doubt, just look at this case from Illinois.  In a trial court two sides argued over whether an individual should be classified as male or female.  The validity of the marriage rested on the outcome of that determination.  Now as I noted before,  one could possibly argue that gender classifications may be permissible in some circumstances where racial classifications would not be, but I am unclear as to what possible definition of "classification" would make the question of whether a "classification" was even used dependent on us referring to a particular characteristic. 

As I said, I clearly do not understand Nephtuli's definition of "classification".   It seems to have something to do with whether the state was focused on the individual or the group, for he keeps saying that it is the couple that is being classified (which he refers to as sexual orientation classification).  For example he writes:

If the laws only disallow SSM (such as the laws of Alabama), then they are classifying two different types of unions: marriages between a man and a woman, which are recognized, and "marriages" between members of the same sex which are not.

But in Pace the state of Alabama also classified two different types of unions: fornication between a black and a white, which had a stiff sentence, and fornication between members of the same race which had a lighter sentence.  It seems he still considers the latter a classification even though the focus was on the couple and not the individual.  (By definition, the crime could only be committed by a couple and not an individual).  It seems to me there are at least two problems with this line of reasoning in both situations.  One is it makes the assumption that if you classify in one regard then you do not classify in another regard.  That is plainly false.  It is certainly possible to use one classification to make another classification, and that is what happens in both of these cases.  The second problem, elaborated upon in McLaughlin, Perez, and countless other cases is that it is the individual who possesses the right not to be classified without just cause. The court is required to look at the situation from the individual viewpoint.

So I don't understand what Nephtuli means by "classification", nor why "classification" in the sense I have used it is the wrong way to think about things.  I have a few questions that might help me to understand better.  If a law required everyone to use an opposite sex doctor, would he "choose" to view that law as using gender classifications?  If the law mandated stiffer penalties for mugging an opposite sex victim, would he "choose" to view that law as using a gender classification?  If the law refused to recognize interfaith marriages would he "choose" to view that law as using a religious classification?  And why or why not?

I'm afraid I'll have to wait and deal with his second post on Sunday. 

Integration and Definitions

Nephtuli at Prima Impressionis responds to my post on sex discrimination and sexual orientation discrimination, but in the process occasionally--but assuredly unintentionally--misrepresents my claims.  So I thought I would clarify what I had written and at the same time respond to some of his concerns.  He first notes that

The original understanding of the equal protection clause is limited to discrimination based on race. The equal protection clause does not forbid discrimination based on gender because of that reason.

He is certainly entitled to this view, which as he himself notes the Supreme Court does not share, but I would point out that most cases concerning SSM are alleging violations of equal protection clauses in state constitutions which often include ERA's which explicitly forbid discrimination based on sex.  But let us turn to the first place my views are misrepresented.  Nephtuli writes:

Galois argues that opposition to SSM is about perpetuating gender roles. Because this is the goal, the discrimination is based on sex since that's the only way to insure that these gender roles remain.

While I certainly do argue that much opposition to SSM is quite explicitly about perpetuating gender roles, that is not why it is discrimination based on sex.  It is discrimination based on sex because it explicitly classifies based on sex.  The whole point of my last post was that the intent behind the policy is irrelevant to the question of whether it should be subject to heightened scrutiny.  The use of gender classifications itself should subject it to heightened scrutiny.  That scrutiny will then "smoke out" illegitimate uses of gender.  I believe that much opposition to SSM is based on perpetuating gender roles, an illegitimate use, but we will find out if there are other valid reasons by using strict scrutiny.  The burden lies with the state, though to show that it is using gender classifications because it is necessary for achieving some compelling interest.  The state does not get to avoid strict scrutiny by asserting any particular goal.  The asserted goals are instead its attempt to pass the strict scrutiny test.  It is this point that Nephtuli repeatedly misses throughout his analysis.  He instead argues that perhaps there is an alternate goal.  Perhaps prohibiting SSM is based on morality.  As he writes:

Should society's prohibition on SSM, which is rooted in its view of the immorality of the concept, be allowed? This conception is more logical than the idea that SSM is prohibited because misogynistic purposes.

First of all this seems to imply that I had said prohibiting SSM was based on misogynistic purposes.  I have argued no such thing.  (Although I have made reference to an amicus brief in Washington by NOW and other groups which does point some misogyny underlying societal disapproval of homosexuality).  I agree with J. Brennan that most gender discrimination arises instead from a notion of "romantic paternalism".  In any case, I have repeatedly argued that intent is irrelevant to whether the policy should be subject to heightened scrutiny (although motives might show up when the state attempts to justify the policy and overcome its burden).  Just as California's policy of temporarily segregating prisoners was not based racial superiority and yet still subjected to strict scrutiny, a policy need not be based on misogynistic purposes to be subject to heightened scrutiny.

Later he writes:

Galois argues that the Court in Loving v. Virginia struck down an anti-miscegenation law even though it imposed equal burdens. So we should similarly require the states to allow SSM.

I don't recall ever making this argument.  My references were to Johnson v. California, Powers v. Ohio, etc.  In terms of anti-miscegenation laws I generally make reference to Perez v. Sharp or McLaughlin v. Florida.  In any case, I do indeed argue that that parallel restrictions do not allow the state to avoid heightened scrutiny.  Nephtuli says this fails for two reasons.  The first is because the policy in Loving concerned segregation and the story would be different if it involved integration.

But let's say the law had required all Whites to marry Blacks and vice versa. Would that law be struck down on the same grounds? Probably not. The reason why the Court applied strict scrutiny is because it believed any racial classification should be analyzed as though it is based on arbitrary and invidious discrimination. But a law requiring the two races to marry would have been designed to mix the two races and show one is not superior to the other. Hence it is unlikely the Court would have struck down such a law on the same grounds (although the Warren Court surely would have found such a law unconstitutional).

The truth is integration is far less constitutionally suspect than segregation. Galois argues that integration is just as suspect as segregation. Citing the recently decided case, Johnson v. California (ruling that requirements to segregate incoming prisoners violated the Equal Protection clause), he argued that the Court would just have easily struck down a law that required them to be integrated.

I disagree. The Supreme Court has allowed integration efforts, such as affirmative action, even if done by a public university. (see Grutter) Does anyone really believe that if the university had a policy that only allowed Whites the Court would have upheld it?

The example he gives of Grutter is actually a perfect example.  There race was considered as one of many factors in a university admissions policy.  Even though the policy promoted integration, it was still subject to strict scrutiny.  Grutter can certainly not be used to argue that SSM prohibitions should not be subject to strict scrutiny.  On the contrary, both its holding and the reasoning of Justice Powell relied upon by the court argue that the act of classification alone makes something suspect and switches the burden to the state to justify the policy.  The court quoted Justice Powell from his opinion in Bakke:

In Justice Powell’s view, when governmental decisions “touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.”

Certainly if we applied the same view to governmental decisions which touch upon an individual's sex, we would also be subjecting SSM prohibitions to heightened scrutiny.  At the very least a policy of requiring racial integration in marriage would indeed be subject to strict scrutiny on these grounds.  And we should note that the court has rejected the use of racial quotas, because it implies that race alone is the only issue in diversity.  Michigan's policy only survived because it considered race as just one of many factors and not as a sole basis for admission decisions.  So no, integration does not not allow us to avoid the issue.  So let us turn to his second reason why my argument fails: definitions.  He writes:

The second problem with this argument is the definition of marriage is between a man and woman. The reason for that is that when the law was passed the primary (if not sole) purpose of marriage was about procreation and child rearing. In Loving the point of the law was to promote racial superiority of whites and by extension maintain the racial inferiority of Blacks. Laws designed to promote racial superiority were found to be contrary to the Equal Protection clause. Blacks were denied the right to marry because of this bigoted social engineering project.

Again we should bear in mind that the motivation of the policy had nothing to do with whether it was subject to strict scrutiny.  Nor should definitions avoid the issue.  Could California have said that segregated cells were, by definition, cells with members of only one race and therefore strict scrutiny was not needed?  Could Florida have argued that miscegenation by definition was between people of different races and hence avoid the issue? Of course not.  The whole point is that the definition uses racial classifications.  And in this case the definition uses gender classifications.  We must then ask whether that use is necessary to achieving some compelling interest.  Now perhaps the issue of procreation might somehow provide for that compelling interest, but it does not remove the policy from being subjected to heightened scrutiny. 

Nephtuli finishes with a lengthy discussion of the procreation argument.  As I have noted, though, this can only be used as an attempt to justify the policy, not to argue that the policy needs no justification.  The biggest problem the state has with trying to use procreation to justify the policy is it fails to clearly argue what interest involving procreation is being served, and how barring couples who cannot procreate furthers that goal.  That is why infertile couples marrying works so effectively against this argument.  It is not because the state is not allowed to make generalizations (although under heightened scrutiny this ability may be limited).  It has nothing to do with how practical it is to test for infertility.  The problem is that the marriage of infertile couples does not seem to be working against any state interest.  It is not that we wished infertile couples did not marry but just don't want to make the effort to stop them.  Almost universally we have no problem with infertile couples marrying.  (This point is especially driven home in states which allow certain couples to marry only if they are presumed infertile). 

In any case, Nephtuli's arguments do nothing to show that SSM prohibitions should not be subjected to heightened scrutiny.  On the contrary they support that conclusion.  The only issue of disagreement is over whether they can survive that scrutiny.  The burden is on those asking to keep the prohibition.  If they want to use procreation, or integration, as part of that argument, fine.  But they must carefully articulate what goal the government is pursuing in prohibiting SSM and how prohibiting it will help further that goal.

 

Discrimination and Intent

I, as well as many others, have long argued that prohibiting same-sex marriage is a blatant act of sex discrimination that has not been remotely justified.  One common response is that it cannot possibly be sex discrimination since both women and men are equally prohibited from marrying someone of the same sex.  We then point out that such reasoning was rejected in cases striking down interracial marriage laws.  The responders generally then illustrate several ways that situation is different.  Two of the reasons most often mentioned are (1) whereas the prohibitions on interracial marriage were based on notion of white supremacy, the prohibition on same-sex marriage is not based on any similar notion of male dominance, and (2) whereas racial differences are superficial, sex differences are real and fundamental,.  I will try to address a few other suggested differences at the end, but for now I want to focus on these two using this week's Supreme Court decision in Johnson v. California as a springboard for my analysis.

Johnson was a case which challenged the California Department of Correction's policy of racially segregating prisoners for up to 60 days each time they entered a new correctional facility.  The state argued that it's policy was "neutral" because all prisoners were "equally" segregated.  The court ruled that nevertheless just by using a racial classification the policy should be "immediately suspect".  The court emphasized that all racial classifications must be analyzed under strict scrutiny.  As for the "equal" discrimination argument, Justice O'Connor, delivering the majority opinion, wrote:

The CDC claims that its policy should be exempt from our categorical rule because it is "neutral"--that is, it "neither benefits nor burdens one group or individual more than any other group or individual." In other words, strict scrutiny should not apply because all prisoners are "equally" segregated. The CDC's argument ignores our repeated command that "racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally." Shaw v. Reno (1993)

The cited case of Shaw concerned an instance of racial gerrymandering.  The court also made reference to another case, Powers v Ohio (1991), which demonstrated the idea that it was the mere classification that was the problem even if applied equally.  In that case jurors were excluded on the basis of race.  Even though the defendant was white and the excluded jurors were black, and even though jurors may have been excluded for being white to an equal degree, the policy was still suspect (and declared unconstitutional). 

We note that policies in Johnson, Shaw, and Powers all discriminated "equally" and in none of the cases could it be said that the state was motivated by any notions of white supremacy.  From the cases we should learn at the least that the mere act of classification can be troublesome regardless of whether a policy was motivated by ideas of one group being better than the other.  Still we ought to look at why the court has a policy of subjecting such policies to strict scrutiny in order to examine how situations of sex discrimination may be different.  There is almost certainly some difference, after all, as although we might expect sex based classifications in voting and peremptory juror challenges to be unlawful, it would be surprising if a court were to strike down sex segregated prison cells.

J. O'Connor explains one such rationale in Johnson:

The reasons for strict scrutiny are familiar. Racial classifications raise special fears that they are motivated by an invidious purpose. Thus, we have admonished time and again that, "[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining ... what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics."  Richmond v. Croson (1989) (plurality opinion).  We therefore apply strict scrutiny to all racial classifications to " 'smoke out' illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool." Ibid.

That is racial classifications, for some reason which we will explore, are especially prone to being motivated by illegitimate views including not only notions of racial inferiority but also by "racial politics".  What does the court mean by "racial politics"?  I can't be sure exactly, but based on the context of the above cases as well as those dealing with racial preferences in contracts and admissions, I take it to mean the view that racial identity is key to people's behavior.  Whatever it means we note that in instances of racial classification (unlike most other types of classification) the burden switches to the state to show that the classification is justified.

So why might racial classifications be especially prone to being motivated by illegitimate views, and do these same reasons apply to gender classifications?  Well, one reason may be that we have a long history of policies that used racial classifications that were based on these illegitimate motives.  This history has left any use of racial classifications automatically suspect.  Unfortunately we also have a long history of policies using sex classifications based on illegitimate motives. As Justice Brennan noted in a plurality opinion  in the case of Frontiero v. Richardson (1973) (a case argued incidentally by Ruth Bader Ginsburg):

There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination.   Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which, in practical effect, put women, not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim:

"Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . .

". . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator." Bradwell v. State (1873) (Bradley, J., concurring).

As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children.  And although blacks were guaranteed the right to vote in 1870, women were denied even that right - which is itself "preservative of other basic civil and political rights" - until adoption of the Nineteenth Amendment half a century later.

It is true, of course, that the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.

Although Justice Brennan neglects to mention discrimination in the area of family law explicitly at the end, it is a theme that runs throughout the above passage.  We can see it not only in the restrictions placed on married women in the past, but especially in Justice Bradley's quote about women filling the "noble and benign offices of wife and mother".  Note that Justice Bradley's views were not based on notions of the inferiority of women, rather only that there was a certain "family organization, which is founded in the divine ordinance, as well as in the nature of things."  To combat such pervasive discrimination, even though it may have been with the best intent, many states passed Equal Rights Amendments or similarly adopted into their common law the idea that in matters of gender classification, just as in matters of racial classification, it is no longer necessary for the claimant to establish that the motives are illegitimate, but rather the state bears the burden by showing the classification is necessary to achieve some compelling interest. 

Although the burden rests with those using the gender classification to justify it, I should point out that many of its defenders do indeed resort to stereotypical notions about the proper roles of men and women.  This is seen quite often with those that defend the policy by claiming children need a mother and a father. Putting aside for the moment the fact that allowing same-sex marriage does not seem in any way to cause less children to have mothers and fathers, the arguments about why a parent of each gender is necessary are generally based on stereotypical assumptions about gender roles.  These notions can even be seen in the legal briefs of those defending the policy.  In addition to the direct appeal to traditional marriage, we also have one brief (pdf) in Washington using the following quote from David Popenoe's Life Without Father:

Through their play, as well in their other child-rearing activities, fathers tend to stress competition, challenge, initiative, risk taking, and independence.  Mothers in their care-taking roles, in contrast, stress emotional security and personal safety...While mothers provide an important flexibility and sympathy in their discipline, fathers provide ultimate predictability and consistency.  Both dimensions are critical for an efficient, balanced, and human child-rearing regime.

This leads us to the second claim about why matters involving racial classifications are different than matters of gender classification.  That is while racial differences are superficial, sex differences are real and fundamental.  Perhaps it is the fact that race is rarely relevant that makes it immediately suspect and perhaps therefore we should not extrapolate from decisions concerning racial classifications to cases involving gender classifications.  In a landmark decision concerning gender classification,  US. v. Virginia (1996), Justice Ginsburg did note that:

The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed "inherent differences" are no longer accepted as a ground for race or national origin classifications.  Physical differences between men and women, however, are enduring.  (internal cites omitted)

Such reasoning, though, should not be interpreted to mean that gender classifications do not need to be subject to heightened review.  They were subject to heightened review in the above case, and in states with ERA's they get subject to the same strict scrutiny as racial classifications.  This difference between race and sex will show up when the state attempts to justify the policy, it does not alleviate the need to justify.  And the court must remain skeptical of these attempts.  Justice Bradley's reason for denying women to the bar was, after all, based on differences between men and women.  To allow any difference to justify any policy would destroy any notion of equal rights.  Still, it is perhaps due to these differences that sex segregation in living arrangements can be justified in instances where racial segregation could not be.

So does the fact that "separate but equal" may sometimes be okay with sex segregation, but not with racial segregation mean prohibitions against same-sex marriage should not be subject to heightened scrutiny?  No. Even if we accepted a policy of "separate but equal" in general for sex classifications--and it is not clear that we should, as gender based admissions policies have been held suspect--it is important to realize that when it comes to our choice of spouse there can be no "equal" substitute like there can for say a dorm room.  As I have explained before, this was the reasoning used in Perez v. Sharp (1948), a case decided before Brown when separate but equal was generally allowed with regards to race in other facilities.  To use the reasoning of Perez, if we say a man is burdened on account of his sex by having to drive a longer distance to attend a nursing school when the nearby school is women only, how much more burdensome is it for the man to have to leave his life partner and find an "equal" substitute on account of his sex.  In fact, it is not simply more burdensome, it is impossible.

I want to conclude by addressing a few other suggested differences between the "equal" racial classifications and the instance of the "equal" gender classifications involved in marriage.  One is that whereas the racial classifications generally concerned matters of segregation, the marriage requirement is one of integration.  To this I note that the court would just as likely have found the CDC policy unconstitutional if it had required a cell to be shared by people of different races.   In fact, the court has consistently subjected policies of racial quotas to strict scrutiny.  The problem is in the use of the racial classifications in the first place.  Another suggested difference is that interracial couples could procreate and same-sex couples cannot.  This is properly an argument concerning the justification itself, and not about whether a strong justification is needed.  I would just note that this fails to be even a weak justification as one cannot reasonably argue that the state would like to confine marriage to couples who can or will procreate.  Finally there is the argument that marriage is by definition between a man and a woman and thus it is impossible for same-sex couples to be married.  We have seen in Massachusetts, Canada, and other countries around the globe, though, that same-sex couples certainly can be married under civil law.  This argument holds no more weight than those that would say women cannot be governors because a governor is, by definition, male. 

 

Oh, I Didn't Mean (Just) You

Katz still doesn't believe there was anything to take offense about since his first post didn't focus on me in particular just people who supported same-sex marriage and thought prohibiting it was both sex discrimination and sexual orientation discrimination.  And his second post was not entirely about me.  He did, after all, include et alia when he found it odd that people who were not following reason and who were fitting arguments to predrawn conclusions should be offended when that is pointed out.  Also, Katz says, he did point out that consistency wasn't everything and never said anything about being intellectually dishonest.  I just interpreted such phrases as accusations of intellectual dishonesty. 

Oh well, let us return to the main point of whether sexual orientation discrimination is a form of sex discrimination.  Katz says this isn't particularly important because if one argument is correct the other becomes moot.  Unfortunately, the issue has become quite important in both courts of law and public opinion.  A few judges and a number of people have said prohibiting SSM can't be sex discrimination because it is really sexual orientation discrimination, and sexual orientation is not a protected class nor should it be as it is a behavior and/or a choice and therefore there is no need to provide much (if any) justification for the discrimination.  But the flaw in the logic is the same one Katz makes, the assumption that sexual orientation is distinct and disjoint from sex discrimination.  As I pointed out sexual orientation discrimination occurs because one is penalizing deviations from one's traditional gender role.  It is thus absolutely a form of sex discrimination.

Katz continues to argue that one need not know a person's sex in order to discriminate against or for that person on the basis of sexual orientation.  One only needs to know that Pat is a homosexual, not whether Pat is a gay or a lesbian.  The whole point, though, is how do you know whether Pat is a homosexual?   Perhaps if the classification were based entirely on how one self identifies we could make the determination based on which box Pat checked on some form--are you (a) homosexual (b) heterosexual (c) bisexual?.  If the policy is going to have any meaning, or if there is going to be any way for anybody to challenge a certain classification there has to be some objective basis for determining whether somebody classifies as "homosexual". To make that determination one must classify based on sex.  Katz gives an example for that case at hand where the IRS does not need to know Pat and Nick's gender, only whether they are of the opposite sex.  How is the IRS going to know that, though, without knowing Pat and Nick's gender? 

Much of the confusion comes into play because of two different ways we might refer to sexual orientation.  On the one hand you could refer to it as an inate characteristic.  We are all born (or quickly develop) some sexual orientation and that orientation exists irrespective of our actions.  Some actions may be more or less likely depending on our orientation, and thus actions may give others clues as to what our orientation is, but one's actions can neither change nor uniquely determine for sure one's orientation.  In some sense I believe this is true, but there will never be express sexual orientation discrimination in this sense because one cannot classify based on this inate orientation alone.  There is no independent way of determining it.  So instead discrimination necessarily is based on actions associated with the orientation.  Some would even argue that there is no inate orientation, but only one's actions.  Either way we arrive at the same place.  When we talk about sexual orientation discrimination we must be referring to classifications based on one's actions.  But what actions are those that lead people to classify someone as homosexual or heterosexual?  They are always actions that depend on one's sex.  Pat may be classifed as a homosexual for marrying a man, but only if Pat is a man.  Pat may be classified as a homosexual for marrying a woman, but only if Pat is a woman.  That each gender has acceptable and unacceptable actions does not make it any less a matter of sex discrimination.  That we can encompass both restrictions by reference to "same" or "opposite" sex also does not change the fact that the restrictions are sex based.

Why Should I Be Offended?

Katz has responded (sort of) to my last post on sex and sexual orientation discrimination.  He seems to feel I was too focused on the word "consistency" and thus I missed his other points.  I thought I had responded to his main point that prohibiting same-sex marriage cannot be both sex discrimination and sexual orientation discrimination.  Either this was not his main point or I missed something, but to be sure I'm not missing anything this time I will respond to him carefully a few sentences at a time. 

It's a frustrating feeling:  I think if I'd used some other word than "consistent," perhaps those who've reacted to my "Whatever Works" post might have addressed the points other than the word. Perhaps the notion of consistency is particularly powerful among supporters of same-sex marriage, or something. (Whether their reaction is an indication of insecurity, I leave to readers to decide; I'm not sure either way.)

This is a rather juvenile and disgusting attack.  He accuses same-sex marriage proponents of being inconsistent, of doing "whatever works" to achieve its goals, of not standing on any principles, in short of being intellectually dishonest.  When I deny those serious accusations I'm told that my powerful reaction might be a sign of insecurity about whether I'm consistent.  Katz isn't sure either way (but we will see he continues to level the charges in this post).  The initial accusations were insulting.  The inference that since I was insulted the accusations are probably true is just stupid. 

Look, if the opposite-sex definition of marriage discriminates on the basis of sex, then there is no discrimination on the basis of orientation. Neither homosexuals nor heterosexuals can marry people of the same sex. The tenuous bridge between the two points from Yale Prof. Jack Balkin that I addressed is evident in his phrasing of the sex discrimination case:

It violates sex equality to tell a man he cannot marry another man when a woman could do so. It violates sex equality to tell a woman she cannot marry another woman when a man could do so.

Perhaps the distinction can be best phrased thus: the sex discrimination case is a matter of "can"; the orientation discrimination case is a matter of "want." If we apply the "can" of sex discrimination to orientation discrimination, we find that there is no legal discrimination. The "cannot" is universal.

It follows from this that the discrimination on the basis of sexual orientation is not done in the same manner as the discrimination on the basis of sex.  Katz's point is also well taken that the marriage statutes are facially neutral with respects to one's innate orientation.  It does not follow that there is no discrimination on the basis of orientation as I pointed out in my last post.  Let us proceed to how Katz addresses these points.  First I had noted that one could make a disparate impact claim.  Katz notes:

It may be the case that a legal regime that has made it a dramatic matter of law to peer into the hearts of men can trace back to discrimination from the outcome of a particular policy. Taking up that argument would require entry into another area of likely disagreement, however. Suffice, for now, to say that I reject disparate impact claims, at least when there isn't other information than the outcome to indicate invidious discrimination, and that I'm skeptical that homosexuals wishing to enter into opposite-sex marriages would have any greater difficulty finding spouses than do heterosexuals.

I too am quite wary of disparate impact claims which is why I would not make one here.  That being said it is an argument that courts have at times accepted and one could make it without being inconsistent in the least.  Katz has every right to disagree with such arguments in general, but just because you disagree with somebody's arguments does not make their arguments any less consistent.  Still, since this is not an area of disagreement over the matter at hand let us proceed to his response to my own viewpoint.

Consequently, Rosenberg takes another tack that, oddly, winds up requiring him to posit a scenario in which discrimination is desirable so that the two forms of discrimination can be made one and the same in a forced overlap:

I posited a scenario in which discrimination is desirable?  Desirable to whom?  I did note that all sexual orientation discrimination is a specific form of sex discrimination but I never said this was desirable.  I honestly have no idea what Katz is talking about here.  He quotes me as saying one cannot define sexual orientation without reference to sex and responds..

The obvious response to the first part of this quotation is that one can define orientation without reference to a particular person's sex: heterosexuals are attracted to people of the opposite sex, and homosexuals are attracted to people of the same sex. Although I can't come up with a circumstance in which one would know the gender of a person's significant other but not of the person him- or herself, I will venture to suggest that if one cannot classify the person, one cannot discriminate against him or her on the basis of that classification. The only way to discriminate is to know that the person is homosexual — meaning attracted to a person of the opposite [sic] sex, whichever that might be.

But this definition does make reference to one's sex.  For who is of the opposite sex and who is of the same sex depends on entirely on one's own sex.  I do agree with Katz that if one cannot classify the person one cannot discriminate against him or her on the basis of that classification.  Since one must classify on the basis of sex to classify on the basis of orientation, all sexual orientation discrimination must classify on the basis of sex (and thus I believe should be subject to heightened scrutiny). 

At best, what Rosenberg has proven is that a policy beginning with the goal of discriminating on the basis of orientation must discriminate on the basis of sex, as well. That is not the direction in which this argument proceeds, however — unless we follow the path of those uncharitable enough to assume bigotry before the first round of debate has even begun.

Unlike Mr. Katz who has made uncharitable assumptions on my motives throughout, I do not bother trying to attribute motives.  Either a policy discriminates or it does not discriminate.  What I have proven is that if a policy discriminates on the basis of orientation it must discriminate on the basis of sex.  It matters not whether the discrimination was itself the goal of the policy, which seems very unlikely, or whether there was some other goal with discrimination being used to achieve that goal, which is far more likely to be the case.  Either way one discriminates.  Katz is making the incorrect assumption that a policy of discrimination necessarily means the authors or advocates of that policy are bigots.  If that were the case supporters of affirmative action would be bigots, in fact we would all be bigots.

Once again, and with all due respect to Rosenberg et alia, the objective appears to be to fit argumentation to a predetermined conclusion. That's fine, as far as it goes; consistency is only one consideration in ideology, after all. But it strikes me as odd that people engaged in that approach would be surprised and offended that others find their arguments to lack the aggregate import that would exist were they following reason rather than preference to their conclusions.

With all due respect?  How could I be insulted by that?  No, really, how can I be insulted by that?  According to Katz's "reasoning", if I'm insulted that's just a sign that the accusation is true.  I believe I am following reason and I thought I had explained my reasoning quite well.  Nowhere do I see any actual disagreement with my arguments other than an unsupported belief that my arguments necessarily assign motives of bigotry.  Instead I am told that they "must" be after the fact arguments for a predrawn conclusion and that I'm inconsistent.  Again Katz provides absolutely no basis for either belief.  And he finds it odd that I would be offended by these accusations?  Throughout this blog I have explained why I find the prohibition of same-sex marriage to be unjust sex discrimination. In particular one could read through my SSM and Sex Discrimination category.  I tried to explain my views in detail in a series of three posts beginning with "What Bugs Me About Discrimination".  I am all for hearing disagreement with my views, but it is quite shocking to be told those aren't really my views but rather after the fact justifications for predrawn conclusions.  I am curious.  If that is the case, then why do I actually support same-sex marriage?  And why must I hide those reasons and offer these arguments instead?  I'm open to any guesses from anyone.

So what do we have?  Katz made an accusation.  I denied it.  He takes the denial to be a sign that the accusation was true.  He then repeats the accusation and finds it odd that one would be offended by the accusation since it is, after all, true.  Unbelievable. 

Sex and Sexual Orientation Discrimination

(UPDATED BELOW 2/27/05)

Justin Katz claims that the arguments for same-sex marriage are "internally inconsistent."  Why?  Well, Professor Jack Balkin presented five possible theories for why prohibiting same-sex marriage is unconstitutional.  In his post Katz explains why he disagrees with one of the theories Balkin presented, but never why any two of them are mutually incompatible.  It seemed to me that Katz believed it was inherently inconsistent to have more than one reason for some view.  Fortunately, in the comments we got some clarification on Katz's view.  Michael, who writes the blog thirdofthemonth, asked Katz to clarify what it was he found to be inconsistent and Katz responded that it was the sex discrimination argument and the sexual orientation argument that were incompatible because...

...if marriage is an individual right, it is not group right. Approach the "orientation" discrimination question from the perspective of an individual: the individual homosexual is not being discriminated against because he or she has the same exact range of options for entering into the institution of marriage as a heterosexual of the same sex has.

There is still nothing inconsistent here, though.  Katz claims that marriage is either an individual right or a group right, but it can't be both.  Why not?  As an individual one is establishing another person as one's spouse.  As a couple a pair is seeking legal recognition of their relationship.  Thus one could certainly view it as sex discrimination from the approach of the individual and sexual orientation discrimination from the approach of the couple.  From this viewpoint sexual orientation refers to traits of couples and not individuals.  That is there are heterosexual couples and homosexual couples but one's sexual orientation as an individual is defined solely by one's membership in a couple. 

Such a view would be entirely consistent, but I dislike its focus on the group over the individual. I do not believe the above definition is a good one for sexual orientation.  So let us suppose that we define sexual orientation as an individual characteristic.  That is one could be a homosexual and seek to marry a person of the opposite sex, or a heterosexual who seeks to marry a person of the same sex.  Is Katz correct that in this case, with the focus on the individual, one cannot make a sexual orientation discrimination argument because a homosexual and a heterosexual of the same sex have the same options in spouses?  Not necessarily.  Although the prohibition facially discriminates on the basis of sex and does not do so on the basis of sexual orientation, one could argue that while facially neutral it has a disparate impact on the homosexual population.  That is one could claim that while both heterosexuals and homosexuals must marry a spouse of the opposite sex, homosexuals have greater difficulty finding such a spouse who will marry them.  Now aside from the legal difficulties of disparate impact claims, I have trouble with this argument in that it forces one to consider whether homosexuals could find opposite sex spouses if they wanted to do so, when I believe they should not have to do so.

The reason there is no inconsistency, though, is more basic.  The fact is all sexual orientation discrimination is inherently a matter of sex discrimination because one cannot define sexual orientation without reference to one's sex.  Suppose you know a person is attracted to women or in a sexual relationship with a woman.  You cannot possibly decide whether to classify that person as homosexual or heterosexual unless you also know whether the person is male or female.  All sexual orientation discrimination concerns deviation from one's traditional gender roles.  A man is traditionally supposed to form an intimate relationship with a woman but instead does so with a man.  A woman is traditionally supposed to form an intimate relationship with a man but instead does so with a woman.  It is no coincidence that homosexual epithets get attached to individuals of either sex who deviate from their traditional roles in other ways (how they dress, how they behave, what interests they pursue, etc.)  So sexual orientation discrimination is not inconsistent with sex discrimination, on the contrary it is a particular form of sex discrimination.  For example, suppose the law stated that only men could become doctors and only women could become nurses. Certainly one could argue that is sex discrimination (even though both men and women are restricted in their career choices).  Yet one could also say that it discriminates specifically against women who wish to be doctors and men who wish to be nurses.  That it does so makes it no less a matter of sex discrimination.

Andrew Koppelman, in his book The Gay Rights Question in Contemporary American Law, points out another problem in treating sexual orientation discrimination as something distinct and even inconsistent with sex discrimination.  He writes (pp. 61-62):

Francisco Valdes's extensive study of the caselaw [83 Cal. L. Rev. 1, 119-207, 308-14 (1995)] finds that, in cases involving straightforward sex discrimination, defendants have often succeeded by imputing homosexuality to the plaintiff on the basis of the plaintiff's purported gender atypical behavior.  Gender stereotyping is supposedly forbidden by sex discrimination law, but the decision to permit sexual-orientation discrimination has created a huge loophole that has been deployed even against heterosexual plaintiffs.

For these reasons I generally don't refer to sexual orientation discrimination on this blog.  It is not because it is inconsistent with my firm belief that prohibiting same-sex marriage is a matter of sex discrimination.  Rather it is not really distinct from that belief. 

Update (2/27/05):  For more on the sexual orientation discrimination as sex discrimination see this denial of summary judgement (pdf) from the District of Massachusetts in 2002 in a harrasment suit Centola v. Potter.  The defendants argued that the harassment was on the basis of sexual orientation and not sex.  The court noted, however

But the line between discrimination because of sexual orientation and discrimination because of sex is hardly clear. Sex stereotyping is central to all discrimination: Discrimination involves generalizing from the characteristics of a group to those of an individual, making assumptions about an individual because of that person's gender, assumptions that mayor may not be true.:..

Stated in a gender neutral way, the rule is: If an employer acts upon stereotypes about sexual roles in making employment decisions, or allows the use of these stereotypes in the creation of a hostile or abusive work environment, then the employer opens itself up to liability under Title VII’s prohibition of discrimination on the basis of sex.
This is the nub of Centola's complaint: Co-workers and supervisors, he claims, discriminated against him because he failed to meet their gender stereotypes of what a man should look like, or act like. In so doing, they created an objectively hostile and abusive work environment in violation of Title VII....

Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women. While one paradigmatic form of stereotyping occurs when co-workers single out an effeminate man for scorn, in fact, the issue is far more complex. The harasser may discriminate against an openly gay coworker, or a co-worker that he perceives to be gay, whether effeminate or not, because he thinks, "real men don't date men." The gender stereotype at work here is that "real" men should date women, and not other men.

 

Tradition, Tradition!

In the courts, states have had a hard time explaining what possible justification there can be for denying same-sex couples the right to marry.  The two most common arguments given in the past are that the state would like to restrict marriage to couples who can procreate and the state would like provide the best environment for raising children.  More and more courts though have pointed out the severe problems with these arguments.  The first must deal with the fact that the state allows--and at times makes it easier--for non-procreative couples to wed.  While it is true that under the rational basis test a statute may be over-inclusive or under-inclusive in achieving its goals it seems laughable to suggest that the state does not really want non-procreative couples to marry and does so only through oversight or lack of convenient way to prevent it.  The second argument fares even worse.  It tends to backfire as courts agree that marriage can be vitally important to the children involved and thus the state has no business denying the children of same-sex couples this invaluable protection.  It is not surprising then that many states have recently stopped making these arguments (although Washington is one notable exception to this trend). Instead states like New Jersey, New York, and California have switched primarily to a claim that the state has an interest in preserving the traditional notion of marriage.  It is for the sake of tradition that same-sex couples must be excluded from marriage. 

I am actually somewhat sympathetic to the tradition argument.  First of all, unlike the other arguments present above I believe this one is sincere.  I think many people do oppose same-sex marriage because it disrupts their traditional concept of marriage.  This can explain why support for civil unions for same-sex couples has generally been stronger than that for marriage.  Civil unions provide a way to offer some of the protections of marriage without breaking from tradition.  It also explains why many groups opposed to same-sex marriage talk about supporting, protecting, or defending traditional marriage but we don't see proposals for license plates asking to support procreative marriage.   

I also find myself agreeing that tradition is important.  It provides stability and continuity with the past.  Tradition can be quite comforting and reassuring as we constantly face changes throughout life.  It can be particularly distressing to see changes to traditions concerning family and religion as they are areas we associate with continuity and comfort.  Because I find tradition so important I would concede that it could be a rational basis for legislation. There is something to be said for continuing to do something the way it has been done provided there is no good reason to change.  But of course that is not the situation we face with same-sex marriage.  The law as it stands violates our right to equal protection and harms families.  When tradition is accused of being discriminatory it is hardly a defense to say that the discrimination is traditional.

This is particularly the case when we deal with traditions concerning the role of gender in our society.  Traditions have long dictated distinct roles for women and men.  In our present day those traditions have come into conflict with our ideals of equality and liberty.  There is a belief that we should all have equal opportunities without regard to our gender; and we should have the  liberty to pursue  our dreams without the government using our gender to dictate our decisions for us.  These new beliefs have caused many of our traditional laws to change.  Some of those changes were initiated through the legislative process, some through executive orders, and many have come through court orders.  The area of family law has been especially ripe for change in this regard.  The role of each gender was perhaps no where more differentiated than in the home.  At one point a woman lost all separate legal identity at the time of marriage.  Only the husband could own property.  These laws were challenged, often in the courts.  If tradition had been an acceptable defense, the laws of marriage would not have changed.  If tradition had been an  acceptable defense, VMI would still exclude women.  Fortunately our new ideals won out over or older traditions.

I find it remarkable to read in the same legal brief that the laws forbidding same-sex marriage have nothing to do with gender discrimination and a few pages later that they are necessary to preserve our traditions regarding marriage.  Do they not realize that the tradition to which they appeal is one based upon the same gender discrimination they deny exists?  Yes marriage has generally always been between a man and a woman, but when in that time has it not also always defined distinct gender roles? 

It is difficult to resolve the tension between tradition and change.  Too rigid an adherence to tradition prevents us from progress in achieving our ideals.  A rush to change in blindness to tradition can leave us feeling adrift and lost.  The key must be not to abandon our traditions wholesale, but rather to gradually modify them when and where necessary so that our traditions evolve.  That is what has happened with marriage as we have seen it gradually lose its gender based distinctions emphasizing instead aspects of mutual responsibility and commitment.  To keep the gendered entrance requirements of marriage based upon an allegiance to these past traditional distinctions would be a repudiation of the changes we have made toward gender equality.  No court should be making that repudiation.

 

ERA in Washington

On March 8 the Washington State Supreme Court will hear oral arguments in two same-sex marriage cases.  In both cases the lower courts ruled that Washington's state DOMA violated the state constitution and that same-sex couples had a right to marry in Washington.  In the first case, Andersen v. King County, eight same-sex couples, represented by Lambda Legal and the Northwest  Women's Law Center, filed suit against King County (which includes Seattle) because they were denied marriage licenses.  Judge William Downing ruled (pdf) that the fundamental right to marry includes the right to choose whom to marry and the state had no rational, let alone compelling, interest in restricting that right here.  In the second case, Castle v. State, eleven same-sex couples, represented by the ACLU of Washington, similarly filed suit against the state.  In that case Judge Richard Hicks ruled (pdf) that by not allowing same-sex couples to marry the state was violating the Privileges and Immunities clause of the Washington State Constitution again as there was little in the way of state interests for the ban. 

Both judges noted that it would seem quite possible that the state Equal Rights Amendment might also forbid the restriction, but they were bound by an earlier 1974 decision Singer v. Hara (pdf) of an intermediate Washington court which ruled that since marriage was by definition between a man and a woman there was no discrimination.  They also both noted that said decision has come in for much criticism for failing to engage in any analysis and based on more recent cases seemed to be on shaky ground, but they were still bound by it.  They practically invited the State Supreme Court, though, to overturn that decision.  The Court will certainly have that opportunity when it renders its decision on these cases sometime in the coming year. 

I am a firm believer that denying same-sex couples the right to marry makes an impermissible classification based on sex and is hence unconstitutional in almost the exact same way the California Supreme Court in 1948 found racial classifications in marriage impermissible.  (See my post on Perez v. Sharp or my posts on sex discrimination).  Some people, like Professor Jack Balkin, feel this argument has a disadvantage in that it's not really sex discrimination but rather sexual orientation discrimination.  Well, there is a great amicus brief being (pdf)  filed in the Washington cases by NOW and other women's rights organizations that explains how sex discrimination and sexual orientation discrimination are linked and how denying same-sex couples the right to marry is detrimental to all who wish to be free from traditional gender stereotypes.  I am hopeful the court will make use of this brief to strike down Singer. 

[For more information on the numerous amicus briefs filed in support of the couples see this press release from Lambda.]    

But The Discrimination Is Justified Because...

In an earlier post I examined some of the reasons I find discrimination troubling.  In the last post I responded to some common arguments that try to claim that the prohibition on SSM is not a case of sex discrimination.  It is one thing to try to justify the discrimination, but those arguments merely ignored the discrimination and evaded the issue.  Today, I will examine some arguments that deal with the issue and try to justify the discrimination.  Such arguments will need to explain why the sex of the individual makes their situation so different as to justify the disparate treatment.  Note it is not enough to say that gender differences are real.  If that alone were enough, all gender discrimination as well as religious discrimination would be justified.  Any substantive argument needs to address why these differences justify disparate treatment when it comes to marriage. 

…a person cannot procreate with a person of the same sex.  This certainly does make the situation different.  It implies the germane characteristic, though, is the ability to impregnate or get impregnated by ones spouse.  As any SSM proponent will remind you, though, even those without the ability to impregnate their spouse are still allowed to marry if they are of the correct sex.  So in this case, gender is acting as an imperfect—although still fairly good—proxy for the germane characteristic. But as most SSM opponents will remind you, there are some reasons to avoid using the germane characteristic directly.  So we might consider the use of a proxy, and hence the discrimination, as justified in this circumstance.  That would only be the case, though, if we could justify the discrimination on the basis of the germane characteristic directly.  That is, if we believed the inability to procreate justified withholding the validation of a marriage, it might make sense to use gender as an imperfect but close proxy to achieve that goal.  Sure, some infertile couples may marry, but that is unavoidable because of practical considerations.  I don’t believe, however, the discrimination on the basis of the ability to procreate is justified in the first place.  Furthermore, I don’t believe that most who support the sex based discrimination would support it if applied to this supposedly germane characteristic directly.  That is I don’t see the infertile marrying as some detriment that should be avoided if possible.   I don’t see the situation of an infertile couple marrying as being so different so as to justify denying the marriage.  Yes, it’s different, but the many things that an infertile marriage has in common with a potentially fertile one—not least of which is the possibility of having children through other means-- are far more important than this difference.  In any case, unless one believes the direct discrimination is justified, there is no way the proxy discrimination can be justified and I suspect the motive behind the discrimination is not truly the desire to weed out infertile couples.

…a same-sex couple cannot provide both the mother and the father that a child needs.  From a policy perspective I have often wondered why it is better for the children to be raised by unmarried parents of the same sex than by married parents of the same sex.  Those are issues that I have dealt with elsewhere, and will continue to address elsewhere.  For now, I want to focus merely on the discrimination aspects.  I see this situation as having much in common with other circumstances in which parents marry.  They cannot provide everything for their child, but they try their best to provide as much as they can.  A person who wishes to marry someone of the same sex also generally seeks to provide for their children (present or future) as much as they can.  In choosing a spouse we tend to think of what sort of parent that person would be, but we don’t forbid others from marriage simply because the chosen spouse is not able to provide everything we would want a child to have. 

On a deeper level, though, there is something that troubles me even more about this argument.  Essentially it says that a man cannot be a mother and a woman cannot be a father.  Well certainly by definition that is true, but as we have noted we must move beyond the definition in matters of discrimination.  What is it exactly that we are saying a man can provide for a child that a woman cannot (or vice-versa)?  I have heard three answers to that question, although I am certainly receptive to more. 

The first answer I have heard is a general one that a child relates to his or her father differently than to a mother.  This highlights, however, an aspect of discrimination I find troubling.  We relate to all individuals differently.  A child relates to his or her parents as individuals and not as some representative of a larger group.  We should be focusing on the individual things a person can provide for his or her child, and not resort to generalities about how men or women behave.

The second answer I have heard is slightly more specific and points out that only a parent of the same gender can know first hand what it is like to be that gender and can relate to the unique difficulties of maturing with a particular physical body.  Of course children grow up with all sorts of experiences and difficulties.  Sometimes one parent can relate to it directly, sometimes both, and sometimes neither.  Even when parents don’t know first hand what the experience is like, though, they can often relate in some other way.  The situation of a parent not being able to relate directly to all of the experiences of a child is common to all parents, and I don’t believe it is justified to use this one particular instance to justify denying the child’s parents the ability to marry one another. 

The final answer I have heard is that only a parent of a certain gender can role model that gender.   This highlights what I think I find most troubling about the discrimination.  First of all, as in the last case, parents relate or don’t relate to the child on so many levels that to focus on this difference strikes me as wrong.  We don’t prohibit a marriage because it lacks a parent who can model other roles.  Only gender roles are so necessary so as to require this distinction.  Furthermore, what use is it to model a role unless a person is going to model it well?  I don’t know what "male" qualities a father is supposed to be model, but I have been told they include duty, honor, and responsibility. Aren’t these virtues a woman can model as well?  Just the idea that there are gender roles that need to be modeled I find troubling.  I don’t think our genders should determine our roles and that is precisely what I find most difficult about gender discrimination.  It implies there are such roles and I would rather leave it to the individual to determine what significance gender will play in his or her life decisions.

Some have hinted that I might be setting the standards too high for what is necessary to justify the discrimination. Well, then I have high standards.  I would note, though, that what passes for justification of the sex discrimination here, might be used to justify just about any instance of sex discrimination.  What if the government decided that a child not only needs a mother and a father, but a mother who stays home with the child?  It might seek to prohibit women from the workplace (for the sake of the children, of course).  What troubles me in that case is the same as what troubles me in this instance of sex discrimination.   The government should not let gender determine our roles.  We should allow the parent to decide what is best for her child, which in an individual case might involve the mother working (or the mother marrying a woman).  And we should recognize that the woman who wants to work to provide for her child or the woman who wants to marry her beloved spouse to protect her family is in essentially the same situation as the man who desires to do the same things.