by Michael Dorf
During Part 1 of Tuesday's oral argument in the SSM cases, CJ Roberts created a stir when he asked the lawyer for the state the following question: "if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?" Writing in the NY Times, Adam Liptak suggested that the Chief Justice's question hinted at a possible narrower ground on which he might join the presumed five other votes for a right to SSM. Stating what has become more or less the emerging conventional wisdom, Liptak wrote that CJ Roberts "may have found a modest path that would not require revision of constitutional standards for discrimination based on sexual orientation."
I have long agreed with the argument that laws banning SSM are unconstitutional under the equal protection rationale of Loving v. Virginia for exactly the reason articulated by the Chief Justice. And of course I would be very pleased were the Chief to write a concurrence or a majority opinion that was based on the sex discrimination argument. However, I disagree with the claim that a sex discrimination rationale would be narrower than an expressly sexual orientation discrimination rationale or a fundamental right rationale. Let me explain.
The chief objection to the sex discrimination rationale is that it is formalistic. Yes, barring Tom but not Sue from marrying Joe formally draws a distinction based on sex but not in a way that is at all invidious with respect to sex. By contrast, everyone understood that the social meaning of laws banning interracial marriage was white supremacy. The social meaning of laws banning same-sex marriage is hetero supremacy but not patriarchy or the like. The use of a sex-based classification to ban same-sex marriage, in this view, is something like the use of race in a race-based identification of a criminal suspect: Formally, it uses race (or sex) but as a substantive matter there's no race or (sex) discrimination.
That initially looks like a good objection, but it doesn't stand up to analysis, and the way in which it fails is instructive. The analogy itself is problematic because, as Stanford Law Professor Rick Banks has argued insightfully, race-based identifications are not in fact as benign as generally assumed. Because race is a social construct and not simply a biological fact, race-based descriptions often incorporate racial stereotypes.
More directly to the present point, whatever one thinks about racial identifications, laws that ban SSM do not merely draw formal distinctions based on sex. They rely on the very sorts of stereotypes about proper sex roles that the modern sex discrimination cases condemn as the central problem with laws that discriminate on the basis of sex. Just as it's sex-stereotyping for the state to say a woman can't be a lawyer because women are supposed to be wives and mothers, so it's sex-stereotyping for the state to say a woman can't marry a woman or a man can't marry a man because men should be with women. Put differently, discrimination on the basis of sexual orientation is sex discrimination in a substantive, not just a formal sense.
But relying on the argument of the foregoing paragraph to defeat the objection to the Loving analogy for sex means that a holding that SSM bans are invalid on sex discrimination grounds would have broad implications for other state laws and policies that discriminate on the basis of sexual orientation. If sexual orientation discrimination is sex discrimination, then such laws and policies are subject to the same (nominally intermediate but often even tougher) level of scrutiny that applies to other laws and policies that discriminate on the basis of sex. By rooting the decision in the constitutional law applicable to sex discrimination, the Court (or CJ Roberts for himself) would not be issuing a narrower ruling.
To be sure, the sex discrimination argument might be attractive to CJ Roberts anyway, because he could say that he is simply applying Loving in a formalistic way with respect to sex. His answer to the objection that this is formalism would be, in essence, "so what?". As a supporter of color-blindness with respect to race, CJ Roberts believes in equal protection formalism. I don't think CJ Roberts would be prepared to fully follow through on sex classification formalism. For example, I don't imagine that he would require an "exceedingly persuasive justification" (the characterization of the sex discrimination test in United States v. Virginia) for sex-segregated restrooms in government buildings. But maybe he would; he might be prepared to say that interests in privacy satisfy the test.
Still, even a formalistic understanding of sex discrimination in the SSM case would have broad implications and applications, because just about every law and policy that classifies people based on same-sex attraction or same-sex conduct necessarily involves drawing sex distinctions in exactly the same way as the hypothetical example of Sue, Joe, and Tom does.
To reitierate, I think that's fine. I agree that sexual orientation discrimination is sex discrimination both formally and substantively. But as a consequence, a ruling on this basis would be at least as sweeping as a sexual orientation ruling simpliciter. Indeed, the approach suggested by the Chief Justice's question is potentially broader than the sort of anti-animus approach of Romer and Windsor. The latter is nominally not heightened scrutiny at all, whereas treating laws barring SSM as sex-discriminatory makes sexual orientation (at least) a de facto semi-suspect classification.