Legal Scholars Argue for Gender Discrimination Ruling

A group of prominent legal scholars — Ilya Somin, Andrew Koppelman, Stephen Clark, Sanford Levinson, Irina Manta and Erin Sheley — have filed an amicus brief in the same-sex marriage cases arguing that they should be treated as gender discrimination cases. I’ll explain why this is important after a brief excerpt from the brief:

Each of the laws challenged in this case clearly mandates that whether one can marry any specific person depends on whether one is a man or a woman. As a recent district court decision striking down a similar Missouri law explains, “[t]he State’s ‘permission to marry’ depends on the gender of the would-be participants. The State would permit Jack and Jill to be married but not Jack and John. Why? Because in the latter example, the person Jack wishes to marry is male. The State’s permission to marry depends on the genders of the participants, so

the restriction is a gender-based classification.” Lawson v. Kelly, 14–0622–CV–W–ODS, 2014 WL 5810215, at *8

(W.D. Mo. Nov. 7, 2014)….

Classifications based on sex… are subject to… intermediate level of scrutiny. “[S]tatutory classifications that distinguish between males and females” are presumptively invalid, and thus, to overcome this barrier, must be “substantially related” to the achievement of “important governmental objectives.” See Craig [v. Boren], 429 U.S. at 197.

That last paragraph indicates why this is an important argument to make. Gender-based discrimination is subjected to a higher scrutiny than sexual orientation-based discrimination, but not as high as race-based discrimination. Laws that have a discriminatory effect based on race are subject to strict scrutiny, those that are gender-based are subject to intermediate or heightened scrutiny, and those that effect sexual orientation face the rational basis test.

Of particular interest is the fact that these legal scholars are often on opposite sides of constitutional questions, but on this one they agree that the proper way to view bans on same-sex marriage is as gender-based discrimination.

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  • EnlightenmentLiberal

    I’ve always felt that the gender discrimination basis is really solid, and I usually go to that first for the layperson. (For an advanced user, I would first go to JS MIlls’ Harm Principle.)

  • themadtapper

    I seem to recall that topic coming up in some of the cases while they were in the lower courts, and the judges have not agreed. I understand the angle, but it has not worked thus far. Probably won’t work on the SCOTUS either. Certainly not with four of them.

  • doublereed

    But that just justifies other forms of discrimination for homosexuals and things like that. Obviously sexual orientation should also have intermediate scrutiny. By treating same-sex marriage this way, it fails to achieve precedent in other legal situations.

  • colnago80

    I like the way Judge John Jones III stated it. Rational basis with bite, implying something in between rational basis and heightened scrutiny.

  • beergoggles

    #3, Exactly. I love how underhandedly they’re trying to sabotage recognizing sexual orientation as an actual thing. That exists. After decades of work we’re almost at the cusp of heightened scrutiny for sexual orientation. If the marriage cases don’t do it, the laws currently being passed down south preventing municipalities from passing sexual orientation and gender identity protections would be the clear indicator of animus for scotus to step in and provide heightened scrutiny to those laws. Heck, the recent attempts by OK and TX to remove marriage license issuance by the government should be enough to spur scotus to recognize this is something they’re going to have to elevate scrutiny on.

    So fuck those guys for trying to do an end run around this.

  • Die Anyway

    Well, I hope that argument lends some weight to the overall case but my own feeling about the issue is that the restrictions on marriage are an imposition of one sect’s religious beliefs on all other citizens in a secular society. That *should* be enough to settle the case right there.

  • Markita Lynda—threadrupt

    I agree with Die Anyway. It’s clear that the main objections against same-sex marriage are from people trying to import their religious beliefs into law.

  • Jared James

    I’m with DA, too. I suspect the big reason we haven’t already settled the matter on First Amendment grounds is it’s thus far been unnecessary to make any such sweeping rule.

    I hope the Court is ready to make a sweeping ruling. I’m not optimistic, but I still hope.

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    Look, to be completely crass, the OK marriage ban doesn’t examine the number of blow-jobs you have given or clits you’ve tickled with your tongue. You cannot escape the ban by pledging that you won’t have any sex but that you think that the person you’ve chosen is an awesome human being, you live well together, and there are practical benefits to civil marriage to which you would like access.

    Regardless of the **purpose** of the ban, the classification which gets us to this point is a gender classification (“legal sex” is a gender category, confusingly, not a sex category…because lawmakers are idiots who don’t have enough brains to ask what differences between gender and sex might exist before they legislate on gender and sex). Gender classifications are subject to intermediate scrutiny.


    I advocated in the 1990s that we had to stop screaming sexual orientation discrimination and start screaming gender discrimination (in this particular case and some related situations where the actual classification being done was being done by gender and a law was silent as to sexual orientation), but the fucking HRC thought that brought them too close to the trannies. Thus they overtly and purposefully rejected pursuing that strategy for years.*1

    I suppose anyone can learn, given enough kicks to the head.

    *1 …Frankly, it was a struggle just to get them to listen. I had to talk to someone at another national group who talked to someone at HRC because the state HRC affiliate wasn’t interested in talking to me…despite my heavy participation in leadership activities for one of the two groups that eventually merged to form and my low-level but substantial volunteer effort at the other group, which was a one-off campaign organization against a fucked up ballot initiative whose leadership realized we were fighting these things every cycle and might as well have a permanent electoral capacity: that’s right, I gave a lot of time to one, and substantial time in leadership with the other of the 2 groups that created the HRC affiliate, but once it was an HRC affiliate I was too radical to hear

  • marcus

    Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    “Look, to be completely crass…

    Yes please.

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    @Die Anyway:

    Of course they are. You’re absolutely right. That’s also why I was advocating in the 90s for strategies in other cases than marriage cases that we make religion as overt as the idiots trying to discriminate. We had people accused of sexual orientation discrimination in Oregon (one case I’m remembering the bigots in question were landlords) who openly defended themselves to the media by saying that they were Christians and that people whose sexual orientation was anything other than heterosexual were unclean, according to the bible, and that they could kick out anyone from their housing that they thought was biblically unclean, else, hey, how could they be good Christians?

    We actually had people in the queer community sufficiently ignorant of the law that they were screaming, screaming that no, this isn’t a case about religion, this is a case about sexual orientation.

    For Freud’s sake, really? Anti-sexual-orientation-discrimination laws were relatively new and the implications of taking them against religious rights had not been directly tested as of yet. (No reason to think it should be different than other anti-discrimination laws vs. religious rights, but no positive precedents on point because there weren’t any precedents on point.) OTOH, the rights of landlords vs. tenants in cases of religious discrimination were actually fairly well settled by then. Making it a religious case would have made it super-easy to kick their asses. But we wanted to make the point that this was sexual orientation discrimination and that was apparently far more valuable to the community than actually getting those bigots up on the stand to rant about how awesomely perfect their bigotry was because God hates the unclean …and then stomping that into the dust as an un-American, unlawful, and ineffective excuse for discrimination.

    If we’d done that then, we’d have a lot less whining about, “Oh, but we really want to discriminate b/c we’re Christians and they aren’t!” now. They’d be BEGGING to pass separate anti-discrimination laws specific to sexual orientation so that, when they argued, “I told them, ‘Fags should all die: move out now, you homos!'” at least they would be arguing against no particular precedent, just the law itself.

    In fact, I think it would have focused things nicely. Because we didn’t do that then, now we have all these bigots trying to fall back on, “But we’re just good Christians!”

    If we had already squashed that as a legal and moral argument, it would be legally in their favor to act in the name of naked hatred of queer folks as queer folks, not as people who had different conceptions of the various gods available.

    Then we would get exactly what the community wanted: an open acknowledgement that queer folk are discriminated against as queer folk. We’d get a better picture of the problem. There’d be less ability to deny the problem. Political action would be better and the frivolous case of Scalia et al. against the applicability of Footnote 4 to queers would be all the more laughable.

    Note that Footnote 4 played a huge role in crafting the arguments of the intervenor-defense team. While we won the case and the 9th circuit follow up and SCOTUS failed to look at it directly, being able to have better data more securely placing queers in Footnote 4’s scope and thus making it much tougher to deny that classifications along the lines of sexual orientation are legally shaky and constitutionally infirm.

    But we didn’t do it, and now it’s too late. Argggghhhh.

    I should have gone to law school years ago, then I could have tried these strategies in court. If I got shot down, at least I wouldn’t be wasting everyone’s time here boasting of unappreciated genius. And if it did have the effects I suspect it would have had, we’d only be better off.

    1. You not having to listen to me whine == win

    2. The case for justice farther advanced == win

    You’ve got a coin with two heads there.

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    Note that Footnote 4 played a huge role in crafting the arguments of the intervenor-defense team.

    Oh, crap. How did I miss that?

    The intervenor-defense team in Perry v Schwarzenegger. For those not in the know, that was the California marriage case. (AKA the “Prop 8” case …or would that be AKA The “Prop 8” Case?)