Sunday, May 18, 2008

Do Prohibitions on Same-Sex Marriage Amount to Sex Discrimination?

My latest FindLaw column sets out the core argument of the California Supreme Court in the Marriage Cases, speculates about the consequences, and defends the result. Because the column is short and the decision is (unnecessarily) long, I don't address everything in the opinions. Here I want to consider one feature of the case: En route to finding that restricting marriage to opposite-sex couples constitutes impermissible discrimination on the basis of sexual orientation, the California Supreme Court says it does not constitute sex discrimination. Herewith, a few observations about this point:

1) It's odd that the Court even addressed the argument, because it is so obviously irrelevant to the ruling. Having found two independent doctrinal grounds for subjecting the marriage law to strict scrutiny---denial of the fundamental right to marriage and discrimination on the basis of sexual orientation---the Court could have simply said that it did not need to reach the question of whether the law was also a form of impermissible sex discrimination. Yet the Court's conclusion that opposite-sex-only marriage is not sex discrimination can now be invoked by opponents of same-sex marriage in other jurisdictions, who will say something like: Even the super-liberal California Supreme Court did not think that sexual orientation discrimination counts as sex discrimination, so it clearly should be understood differently here as well. And in some of the jurisdictions in which this argument is advanced, the notions that marriage is a fundamental right and that sexual orientation is a suspect classification will not be available. Defeat of the argument that sexual orientation discrimination = sex discrimination may not have mattered in this case, but it could be crucial in another jurisdiction.

2) The idea that same-sex marriage restrictions should be struck down as a form of sex discrimination is often called "the Loving analogy," because it rests on a logic drawn from Loving v. Virginia, the U.S. Supreme Court case invalidating Virginia's anti-miscegenation law. It goes like this: If telling a black man that he can't marry a white woman because their races differ is race discrimination, then telling a man that he can't marry a man because their sexes are the same is sex discrimination. The California Supreme Court relied on its own decision invalidating an anti-miscegenation law, Perez v. Sharp (1948), for the proposition that the fundamental right to marry is not limited by its precise history, but the Court rejected the Loving analogy in its standard form: Anti-miscegenation laws express the social meaning of white supremacy, the Court said, but same-sex marriage prohibitions are not an expression of patriarchy (or some other form of sex/gender subordination).

3) There is pretty clearly a sense in which the California Court is right, but that sense does not (or should not) exhaust the scope of equal protection. Although the particular law at issue in Loving was clearly an expression of white supremacy, imagine a case in which it were not. Suppose a state forbade interracial marriage on aesthetic grounds alone. Wouldn't we still want to say that such a law constitutes race discrimination? And wouldn't that conclusion be independent of the fact that marriage is a fundamental right? Surely a law forbidding interracial bowling is an instance of race discrimination, even though there is no fundamental right to bowl and even if the law were in fact adopted for reasons having nothing to do with claims about the superiority or inferiority of various races.

4) What's really going on---and the California Supreme Court opinion gestures incompletely in this direction---is that the California Court is much less formalist than the U.S. Supreme Court. Here's what the California Supreme Court said last week:
a statute that treats a couple differently based upon whether the couple consists of persons of the same race or of different races generally reflects a policy disapproving of the integration or close relationship of individuals of different races in the setting in question, and as such properly is viewed as embodying an instance of racial discrimination . . . . [I]n realistic terms, a statute or policy that treats same-sex couples differently from opposite-sex couples, or that treats individuals who are sexually attracted to persons of the same gender differently from individuals who are sexually attracted to persons of the opposite gender, does not treat an individual man or an individual woman differently because of his or her gender but rather accords differential treatment because of the individual’s sexual orientation.
The California Court is, in this passage and throughout the relevant section of the majority opinion, rejecting the sort of formalism one sees in the U.S. Supreme Court, in which the relevant threshold question for applying heightened scrutiny is whether the government has used a suspect or quasi-suspect CLASSIFICATION. Understood in those terms---what the California Supreme Court called a "semantic" argument with some appeal---laws forbidding same-sex marriage unquestionably do constitute sex discrimination.

5) Accordingly, we have an answer to the problem I identified above in 1). A jurisdiction can justifiably reject the Loving analogy only if it more generally rejects formalism in its equal protection jurisprudence. Thus, a state high court that applies the same exacting scrutiny to affirmative action programs as to programs that disadvantage traditionally disadvantaged groups---i.e., a state high court that practices equal protection formalism with respect to affirmative action---should not be able to reject the formalism of the Loving analogy. In other words, the liberal California Supreme Court could reject the Loving analogy because of its commitment to a vision of substantive equality. A more conservative state high court, with a more formal vision of equality, should accept the Loving analogy.

Not that I'm naive enough to think that this will happen.

Posted by Mike Dorf


Mortimer Brezny said...

The post above is absolute nonsense.

Michael C. Dorf said...

Despite my power as blog administrator to delete comments, I'm leaving mortimer brezny's trenchant and respectful criticism of my post here as a demonstration of my commitment to freedom of speech, which is strong---although not quite as strong as my commitment to nonsense, which, as mr. brezny points out, is absolute.

Mortimer Brezny said...

Suppose a state forbade interracial marriage on aesthetic grounds alone. Wouldn't we still want to say that such a law constitutes race discrimination?

I have a hard time understanding what the content of such a law would be. What does it mean to forbid interracial marriage on aesthetic grounds?

David Crowley said...


I think by "aesthetic grounds" he means unpleasing to the senses---e.g., it's much more pleasing to the eyes to see couples with the same skin color than couples with different skin color, the legislature might argue. To follow the hypothetical, we are to assume that this would be a stand-alone, non-pretextual reason. A law that forbids interracial relationships because they are unattractive would not necessarily be discriminating on the basis of race (in a non-formalist sense) because that law is not designed to burden or advance any particular racial group (in theory).

If you have a hard time picturing the content of such a law, consider a GSA regulation that mandated that all federal buildings have separate, gender-specific bathrooms, and that each gender was only allowed to use the appropriate bathroom (i.e., men couldn't use the woman's bathroom, and vice versa; bracket all the objections about transgendered individuals, etc.). We can imagine a simple, "non-discriminatory" purpose for this regulation: to reduce sexual assaults.

I think Professor Dorf's point is that under the formalist approach of the U.S. Supreme Court, this regulation would (or should) recieve heightened scrutiny, with all the accompanying burden shifting and doctrinal skepticism, simply becasue it referenced the different sexes. This would be true even if the Court knew at first glance that there was nothing invidious about the regulation. By contrast, the California Court would comfortably uphold the regulation against a sex discrimination suit because it would not presume that the regulation was discriminatory simply because it invoked sexual classifications.

If you're a realist, this may all seem like "nonsense." After all, who cares what analysis the different courts use to reach their outcome? If the U.S. Supreme Court wants to allow same-sex marriage prohibitions, the realist argues, it'll find a way to do it under whatever scrutiny it chooses to apply, and however it chooses to follow/distinguish precedent; same goes for the Cali. Supreme Court. This, I take it, is Professor Dorf's point when he states that he is not naive enough to think that courts will scrupulously follow their precedents and doctrines in a politically-charged issue like same sex marriage.

egarber said...

A few points / questions:

1. I doubt the court answered this, but was there any mention of a potential slippery slope in making the case a fundamental rights analysis? Here I mean the "risk" that if courts put teeth in marriage as a fundamental right, it potentially opens the door to unintended consequences -- legalized polygamy, etc. After all, is there really a *compelling* state need in denying a right to marry more than one person?

2. In your article, you talk about how state constitutions are easier to change than the federal charter -- and that might lend credibility to the argument that the federal supreme court should stay out of such matters. You sort of went into this a few posts back, but are you therefore advocating that SCOTUS justices formally adopt that standard as a doctrine unto itself?

3. It seems to me there's a simple solution to all of this, one that *should* be appealing to conservatives, because it enforces an inherent LIMIT on government: get the state out of the marriage business altogether. Instead, the states should create a single, non-discriminatory civil union law. That way, the question of whether marriage is between a man and woman can be left fully within the realm of faith / church. The state, by taking a step out of that arena, would limit its reach and thereby enlarge the sphere of individual liberty.

Michael C. Dorf said...

David C is exactly right in discerning my meaning and, I should add, I did not create out of whole cloth the notion of an aesthetic justification for race discrimination. It's based on the following question mooted by Owen Fiss and Paul Brest in the 1970s: "How should a court treat a [public] school principal’s decision, based solely on aesthetics, to have black and white students sit on opposite sides of the stage at the graduation ceremony?”

As for Eric's questions:

1) The Cal S Ct does not address polygamy or the rest of the Santorum agenda.

2) I did not mean to be taking a position on the question whether the difficulty of amending the US Constitution is a sufficient reason for the US S Ct to trim its constitutional interpretations. I was simply making a comparative point about the strength of the argument in different contexts.

3) The Cal S Ct expressly states that it is not addressing the question of whether the state has to recognize any "marriages" as opposed to "civil unions" for everyone, but suggests that there may well be a right to the term "marriage." (I find this suggestion unappealing precisely for the reason that it takes off the table the compromise Eric proposes.)

Mortimer Brezny said...

David C is exactly right in discerning my meaning and, I should add, I did not create out of whole cloth the notion of an aesthetic justification for race discrimination. It's based on the following question mooted by Owen Fiss and Paul Brest in the 1970s: "How should a court treat a [public] school principal’s decision, based solely on aesthetics, to have black and white students sit on opposite sides of the stage at the graduation ceremony?”

Well, Fiss' and Brest's question is about how to arrange large groups of people in space for a ceremonial event, so it makes sense; it's a "segregation as flower arrangement" kind of argument. But implying that black people are flowers is different than implying that black people are just too ugly to mate with, which seems to be the import of your hypothetical "aesthetic anti-miscegenation law," an import little different the "white supremacist" grounds offered by the state of Virginia in its briefs in Loving. In other words, what you referred to as "aesthetic grounds alone" is not really "aesthetic grounds alone," thus rendering your hypothetical nonsensical.

ms said...

Even on a formalist account, same-sex marriage bans discriminate ont he basis of sex. As the hawaii Supreme Court noted in Baehr, a man can marry a woman but not a man and a woman can marry a man but not a woman. A separate question is the constitutionality of the ban, but the basis is sex.

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