Same-sex Marriage Preview I

By Tom Watts*

This is the first in a series of blog posts previewing some of the conceptual questions that may come up in the same-sex marriage oral arguments on Tuesday. Part II is here.

On Tuesday, we will have the legal equivalent of the Super Bowl, a presidential election, and the finale of Seinfeld at all once: oral argument in Obergefell v. Hodges, the Supreme Court’s same-sex marriage case. The outcome of the case is in as little doubt as in any major case in recent memory: most court-watchers expect the Supreme Court, most likely in a 5-4 opinion written by Justice Kennedy, to strike down the state bans on same-sex marriage. (This would be consistent with the gay rights decisions in the Supreme Court for nearly the past twenty years, from Romer to Lawrence to Windsor.) As a result, the interesting questions are not around what the Court will do but rather how the Court will do it.

For example, the Court needs to determine what type of classification these laws make (because the type of classification determines the level of scrutiny under the Equal Protection Clause), and that alone is not as simple as it seems. Most courts have understood these laws to classify people by sexual orientation — in the same way that a law requiring black people to sit in the back of the bus and white people to sit in the front classifies by race — but the question may not be as simple as it seems.

A typical classification actually mentions the classification in the law’s text (in legalese, “on the face of the law”). However, nowhere in the text of the same-sex marriage bans do the words “gay” or “straight” appear. Instead, the words “man” and “woman” appear. These words describe sex, not sexual orientation, so isn’t this a sex classification? Hawaii, in the first successful marriage equality case, thought so. Judge Berzon of the Ninth Circuit thought so. But most judges have taken it to be a sexual orientation classification instead. Perhaps saying “man” and “woman” together in the context of marriage is so close to saying “heterosexual” as makes no difference; after all, a law that classified on the basis of “having the organs to bear children” would almost certainly be a sex classification, even if it never said “woman” anywhere. Also, an unconstitutional classification typically bears a message of the supremacy of one class over others, such as segregation bearing the message of white supremacy. The marriage bans seem to be sending a message of heteronormativity — what might be called heterosexual supremacy — so they seem like sexual orientation classifications.

But is that mutually exclusive with a sex classification? After all, our usual sense of sexual orientation is a composite characteristic: to determine whether someone is gay or straight (or otherwise), you need to know that person’s gender identity and also the genders of that person’s preferred partners. Simply knowing that a person is attracted to men doesn’t tell you whether the person is gay or straight unless you know, for example, that the person also considers himself a man. For this reason, the government cannot determine that a person is gay until after it classifies the person by sex. Perhaps a sexual orientation classification is a sex classification, most of the time.

This approach has some real-world resonance: if a man is attracted to another man, one of the homophobic comments he might get is that he is not a real man, because men aren’t supposed to feel that way or do those things. That sounds like sex stereotyping and, thus, sex discrimination. Moreover, this wouldn’t be the first time that the judiciary has recognized that discrimination on the basis of a sex-related concept should be grouped under the heading of “sex discrimination,” since gender discrimination is considered a type of sex discrimination, even though sex and gender are distinct (albeit related) concepts. The Court could consider sexual orientation discrimination a type of sex discrimination, too.

Of course, one could imagine a law that might allow the government to classify by sexual orientation without classifying by sex. Consider a law that required only self-identified homosexuals to sit at the back of the bus. To administer this law, the government need not determine whether it thinks that the person is homosexual — which requires determining the person’s sex — but only whether the person thinks of himself or herself as homosexual. However, even if this law didn’t involve a sex classification (and it might be complicated to determine whether it did or didn’t), that’s not how the law in this case is structured. It explicitly says “man” and “woman,” so the government must classify one person as a “man” and the other as a “woman.” Those are sex classifications.

Despite the foregoing analysis, there is very little chance that the Supreme Court will consider sexual orientation discrimination a type of sex discrimination. The reason is Title VII of the Civil Rights Act of 1964. Title VII bars (among other things) sex discrimination in employment. Members of Congress have been proposing adding sexual orientation to Title VII (in a bill called “ENDA”) since 1974, but it has never passed. If the Supreme Court held that sexual orientation discrimination is a species of sex discrimination, then it would be implying that Title VII’s ban on sex discrimination includes a ban on sexual orientation discrimination. I suspect the Court would view this as judicial (rather than legislative) enactment of ENDA and would find that prospect distasteful. Thus, somehow, it has to determine that this law is a sexual orientation classification, even though the law says nothing about sexual orientation on its face.

It will be interesting to see if the Court digs into any of these issues at oral argument. Most lower courts have simply assumed that the laws classify on the basis of sexual orientation, but the Supreme Court could dig deeper if it chose.

* Tom Watts is a fourth-year JD/MPP student at HLS and HKS and is the Executive Online Editor of HLPR.