Question for legal eagles re same-sex marriage rhetoric

Several times in the last few days I have heard advocates of same-sex marriage explain that they would have all the rights accorded to married couples except for the gender of their partner. But why isn’t it a more powerful anti-discrimination argument to say that they are being discriminated against not because of the gender of their partner but because of their own gender — that if they were of the opposite gender they could be legally married to their partner?

13 thoughts on “Question for legal eagles re same-sex marriage rhetoric”

  1. Not really a question for the legal eagles. It’s either circular or not relevant. Logically, the individual isn’t being prevented from marrying because of his or her own gender since he or she is free to marry a person of the opposite sex. Therefore it seems to me that the discrimination is indeed on the basis of proposed partner in marriage and not on the basis of one’s own sex.

    Also, it’s not legally relevant to this case. The general principle is that a plaintiff must seek to vindicate his or her own injury but that’s not really applicable to this case. It isn’t relevant to the procedural questions like standing because the main question the court focused on was who might have standing if the state chose (as in this case)not to defend an initiative of which the governor and the attorney general disapproved.

    The broader legal questions revolve around the meaning of the “rational basis” test and whether discrimination on the basis of homosexuality ought to be given “intermediate scrutiny” as for gender discrimination or “strict scrunity” in which governmental actions that disadvantage homosexuals would be tested under the same rules as actions disadvantaging people on the basis of race (a test which is essentially impossible for any statute to satisfy)

  2. I’ve wondered about this as well. Not only is it discrimination against men who want to marry men or women who want to marry women that they are denied purely on the basis of their own gender; it’s also discrimination against people who don’t identify as either. Of course, it’s far from the only situation where people are forced to choose ‘male or female’, but that doesn’t make it any more justifiable from an ethical point of view.

  3. In paragraph 2, where you said “vindicate,” did you mean “mitigate”?

    Also, I have some concerns that California’s governor and AG were able to choose not to defend Prop. 8 in court. I’m no supporter of discrimination, so their decision breaks well for me this time, but since the entire purpose of the initiative process is to circumvent government officials and enact legislation by popular vote, I’d be more comfortable overall with a law that required the relevant government officials to vigorously defend initiatives in court.

    Of course, I’d also be happy if the initiative process went away or were dramatically scaled back.

    1. “Vindicate” as in a litigant must seek to uphold or champion his own rights. This helps to assure that lawsuits are contests between people with genuine, concrete interests at stake.

      Interestingly, this idea is closely related to your concerns, which I share, about what happens in California when the formal advocates of the state are antagonistic to a particular initiative that’s being challenged in court. I agree it seems like a very serious structural defect in light of the traditional justifications for having initiatives in the first place.

  4. Gender is more fundamental to identity than sexual orientation. If Tom is gay, then he is a man who happens to be attracted to men. He’s not “someone who is attracted to men who happens to be a man”. The latter formulation sounds odd because gender is the more observable characteristic. Tom (and others) knew he was a man before he knew he was gay.

    Thus, when people imagine the alternative scenario where Tom is allowed to marry his lover, the easier thing to change mentally is Tom’s orientation, not his gender. Hence: “If Tom’s partner was Erica rather than Eric, then he would be allowed to marry.”

    1. Gender is more observable, but it’s not really clear that it’s more fundamental.

  5. What’s the difference between saying in this case “it’s not discrimination, because both heterosexuals and homosexuals are free to marry somebody of the opposite sex” and saying of a hypothetical prohibition against performing mass or hearing confession, “it’s not discrimination, because both Baptists and Catholics are prohibited from performing mass or hearing confession”?

      1. That’s the most obvious response, of course. The question is, I think, whether society has a valid interest in encouraging heterosexual marriage but not encouraging (and possibly discouraging) homosexual relations. In previous times, the answer would have been simple: in order to encourage procreation.

  6. My understanding is that discrimination by race requires a higher degree of scrutiny (that is “strict scrutiny”) than discrimination by gender (which requires what is called “intermediate scrutiny”). The courts will tolerate a lot more discrimination by gender than they will by race.

    The courts see no problem with restrooms segregated by gender (Men’s and Women’s Rooms) but would absolutely prohibit separate restrooms for blacks and whites. And maybe some of you people don’t have a problem with that. This is a major issue, however, for transgender activists. Employers can have separate dress codes. A few years back (don’t have a citation, sorry) a woman not accustomed to wearing makeup sued her employer because it required her to wear makeup but had no such requirement for male employees. (In fact, the males were not allowed to wear makeup.) In fact (IIRC), the dress codes specified that she wear six kinds of paint: (1) foundation, (2) eye shadow, (3) eye liner, (4) mascara, (5) lipstick, and (6) blusher. The court found for her employer, the defendant. I think this is completely wrong, but it’s a good example of how gender discrimination is viewed with much lower scrutiny than racial discrimination.

    Lower than either strict scrutiny and intermediate scrutiny, there’s “rational basis.”

    The CA Supreme Court (if I understand this right) ruled that (1) this was a case of discrimination by sexual orientation; and (2) such discrimination was to be judged under the more stringent level of “strict scrutiny.” That is, discriminating against somebody because of their sexual orientation is to be judged as strictly as doing so because of their race.

    This is the first time, as I understand it, that any high state court has applied the strict scrutiny standard to sexual orientation. And their decision is not binding outside of California. In some states, there are absolutely no laws against discriminating against gays. Others are in between.

    In response to Quincy’s question, I suspect these folks are making legal arguments for the various pending cases. More important than any law court is the court of public opinion. And for that, the most compelling arguments are emotional — all they want is the same thing you have, the right to marry the person they love.

    1. I was kind of long-winded, and I didn’t wrap it up properly.

      The reason, I think, that advocates are arguing discrimination by sexual orientation (that is, against gays) and not by gender is that the case is in California.

      If it was a different state, one that had to proscription against discriminating against gays, then they’d make a different argument.

  7. “More important than any law court is the court of public opinion. And for that, the most compelling arguments are emotional — all they want is the same thing you have, the right to marry the person they love.”

    Clearly the emotional argument, even if not wholly honest. If the person you love is underage, or a sibling, or already married, you don’t have the right to marry them – yet. If the Supremes rule that gay marriage is a right, it’s difficult to imagine a cogent argument against polygamy – or sibling marriage, for that matter. The latter has been traditionally forbidden for various reasons, most especially related to procreation. But if marriage is no longer for the purpose of encouraging procreation, what’s the basis to forbid consenting incest?

    1. I think the answer to this will depend on how the court treats the lower court’s rather cavalier attitude towards the “rational basis” test. Previously, the presumption in favor of upholding laws or classifications tested under “rational basis” was so strong that it was considered almost inconceivable for a law support to any kind of good faith fact-finding or the making of a societal judgement to be struck down. The more “modern” test used by the district court seems to be that the legislature can’t pass laws the judges think are stupid or bad. So, depending on what the judges think about the merits of the law, one might be able to argue that there’s a rational basis for incest laws if there’s a finding of fact about economic harms of inbreeding. There’s also the question that wasn’t addressed about whether the “ick” factor can be a rational basis for legislating.

      I’ve been thinking about the “ick” factor a lot lately and, in that connection, I’ve been revisiting Richard Parker’s writing, especially his “Here, the People Rule: A Constitutional Populist Manifesto” and rethinking a few of my past criticisms in light of the oral arguments and the relationship between the increased public acceptance of same-sex marriage and the fact that it’s almost universality expected to be approved by the court. I don’t agree with this but I do think he was right (and I was wrong) about some predictions made many years ago.

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