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.