The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In its recent decision in Waters v. Ricketts, the Federal District Court for the District of Nebraska ruled that state's ban on same-sex marriage discriminates on the basis of sex and is therefore likely unconstitutional (thereby justifying the issuance of a preliminary injunction, which requires the plaintiffs to prove that they are likely to prevail on the merits). Here is the key passage from the opinion by Judge Joseph F. Bataillon:
Whether couched in terms of equal protection or due process jurisprudence, the State of Nebraska's purported rationales for its wholesale prohibition of same-sex marriage and refusal to recognize same-sex relationships valid in other states do not withstand constitutional scrutiny. The Amendment explicitly creates a classification based on gender because a person's eligibility to marry, or to have his or her marriage recognized, is based on the gender of the individuals seeking to marry. It facially discriminates based on gender and is subject to an intermediate level of scrutiny. The state must show an important governmental objective and the challenged classification must be substantially related to achievement of those objectives-it must demonstrate an exceedingly persuasive justification for its gender-based action.
Although it still hasn't gathered as much support as some of the other rationales for striking down laws banning same-sex marriage, the sex discrimination argument has been gaining momentum. This ruling follows on the heels of a recent Missouri federal district court decision endorsing the the same argument, as well as a strong concurring opinion by Judge Marsha Berzon of the Ninth Circuit Court of Appeals.
Northwestern University law professor Andrew Koppelman and I recently coauthored an amicus brief urging the Court to endorse the sex discrimination rationale. The brief was filed on behalf of ourselves and a cross-ideological coalition of other legal scholars.
For reasons I outlined here and here, I believe this is the best way for the Court to invalidate laws banning same-sex marriage. Hopefully, these recent lower court decisions will focus more attention on the sex discrimination issue.
NOTE: The Nebraska ruling was issued on March 2. I missed it at the time, probably because I was out of the country. But the issue is still very much current. The sex discrimination argument and several other possible rationales for striking down laws banning same-sex marriage are currently before the Supreme Court in Obergfell v. Hodges.