Justice Kennedy and Gender Discrimination

Sonja West has an article at Slate about one intriguing possibility for how the two marriage equality cases could turn out. She points to a key question asked by Justice Kennedy, who will almost certainly be the swing vote as usual, during the oral argument in the Prop 8 case.

In March, during the oral argument about California’s same-sex marriage ban, Kennedy said that he was “trying to wrestle” with a “difficult question” about the constitutionality of same-sex marriage. The question on his mind was whether prohibitions on same-sex marriage are a form of gender discrimination. The lawyer defending the ban, Charles Cooper, responded that this was a case about sexual orientation, not gender, and the argument quickly moved in a different direction.

But we shouldn’t dismiss Kennedy’s question about gender discrimination too hastily. The court’s precedents on gender might offer Kennedy the conservative compromise he is looking for: a way to recognize a constitutional right for same-sex marriage in a limited way.

The gender-discrimination argument is not complicated. Imagine Alice applies for a license to marry Charlie and it is granted. Yet if Bob applied for a license to marry Charlie, he would be denied. The crucial difference between Alice and Bob is, of course, their gender—not their sexual orientation. In fact, as we all know, homosexuals have long been free to marry members of the opposite sex. Thus, Kennedy is wrestling with the possibility that Bob is being discriminated against because he is a man and not because he is gay. And, if so, should the court apply the same level of heightened protection it traditionally applies whenever the government treats men and women differently?…

The gender-discrimination framework may appeal to Kennedy in other ways, too. During oral argument, he expressed worry about the court about moving too far too fast. Bouncing between metaphors of entering “uncharted waters” or going off a “cliff” with its decision, Kennedy expressed a desire for the court to proceed cautiously “in light of the newness” of the issue.

This approach could help Kennedy with these concerns. He doesn’t have to break new legal ground by declaring a constitutional right to be free from discrimination based on sexual orientation. Instead, Kennedy could turn to the much more developed path of our constitutional protections against gender discrimination. The outcome (constitutional protection for same-sex marriages nationwide) would be revolutionary, but the basis for it (gender discrimination) would be familiar.

The reach of these cases is also naturally circumscribed. A gender-discrimination ruling on marriage would not, for example, determine how much constitutional protection a person might receive if he was fired from his job because of his sexual orientation. Kennedy could save that case for another day. It also does not give fodder to the slippery-slope argument about polygamy, which presents a problem of numbers and not gender.

That is a really interesting possibility. Given his past rulings, I suspect that Justice Kennedy leans toward supporting more equality for gay people, but I think he’s also likely looking for a way to do that without going “too far.” This is one possible result. There are others, of course. We’ll find out in a couple weeks.

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  • I personally have used a similar argument in discussions, and it’s really hard to argue against if you already accept that the government can’t discriminate based on gender. I’ve yet to hear a compelling (or even coherent) response to it.

  • hunter

    Nothing gives fodder to the slippery slope argument about polygamy — nothing needs to. It’s a red herring, pure and simple, and seems to have an infinite shelf-life.

  • jamessweet

    @Deen: Yeah, I’ve had the same thought, and frankly I think the most compelling “rebuttal” to it is that it’s a distraction from achieving full rights for LGBT people — which is not really a rebuttal per se, just a reason to maybe not focus on that argument. But if it achieves the short term goal…

    That said, I seriously doubt the court will rule this way.

  • cptdoom

    I’ve often thought gender was the better argument than sexual orientation, and I know that Ted Olsen has discussed that aspect of the case when talking about it. The other aspect that isn’t addressed in this piece is the very real issue that gender is not as binary as people think. One out of every 2000 births is estimated to be intersex, someone who is physically in between the two genders. If there are people who cannot be easily classified as male or female, how can laws limit our participation in any aspect of society based on gender?

    The gender argument would also be very powerful with Ruth Bader Ginsburg, who has expressed some concerns as well about going too far with the ruling. Her career was largely built on cases of gender discrimination, particularly cases involving discrimination against men.

  • lofgren

    It seems to me the rationale can be extended to argue against most discrimination based on sexuality. Oh, you’re discriminating against Ted because he is a MAN who likes MEN? Well if he was a WOMAN who liked MEN, then that would be perfectly OK. Gender discrimination.

  • Reginald Selkirk

    Imagine Alice applies for a license to marry Charlie and it is granted. Yet if Bob applied for a license to marry Charlie, he would be denied.

    Well duh. If Charlie is already married to Alice, his marrying Bob would constitute bigamy.

  • @jamessweet: I actually think that could be a valid objection, but of course, not one that an opponent to gay marriage could use.

    Still, it can be quite amusing to point out to the “small government” types that they basically support their government performing a genitals check before issuing a marriage license, to make sure the two people applying for the license own a complementary set. Throw in a discussion of transgender and intersex conditions, and you can really make their heads explode.

  • dogmeat

    I would argue that the slippery slope to polygamy argument goes nowhere because the state has a well established compelling interest to be concerned about multiple marriages. The issues that arise when those marriages are terminated in relationship to property rights, custody, visitation, etc., alone are compelling enough. The argument against same sex marriage basically breaks down to “ewwww.”

    We’re pretty solid on the lineup in the case, the question is Kennedy as the swing justice. I think the liberal justices would rule in favor of full same sex marriage rights, Kennedy wouldn’t go that far except, in this case. I doubt the court is ready to go Loving, give it another 5-10 years (unfortunately).

  • RickR

    I find that language about the worry of a ruling that goes “too far” to be really distasteful.

    As if there were such a thing as “too much equality”.

  • footface



    Sure, we’re all in favor of equality and justice, but let’s not go crazy!