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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