Alternative rationales for striking down laws banning same-sex marriage in today's Ninth Circuit opinions

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Today's Ninth Circuit Court of Appeals decision striking down laws banning same-sex marriage is important in several ways. First, as co-blogger Dale Carpenter points out, same-sex marriage will now soon be legal in five more states, bringing the total to thirty-five. For reasons I noted in this post, the more states have legal gay marriage by the time the Supreme Court finally gets around to addressing the issue, the more likely it is to strike down laws banning same-sex marriage nationwide. Second, it adds to the already long and impressive string of victories by same-sex marriage advocates in numerous court decisions since the Supreme Court issued United States v. Windsor last year. This momentum also makes it more likely that the Supreme Court will ultimately rule the same way.

It is also notable that the judges on the Ninth Circuit panel outlined three different rationales for striking down laws banning same-sex marriage. Judge Stephen Reinhardt's opinion for the court concluded that they violate the Equal Protection Clause of the Fourteenth Amendment, because they discriminate on the basis of sexual orientation, and sexual orientation discrimination is subject to heightened scrutiny. In a concurring opinion to his own majority opinion, Judge Reinhardt also concluded that these laws violate the Due Process Clause of the Fourteenth Amendment because they infringe on the "fundamental" right to marriage.

In her separate concurring opinion, Judge Marsha Berzon argues that the laws also violate the Equal Protection Clause because it discriminates on the basis of sex, and cannot withstand the heightened scrutiny imposed on such legislation. In my view, this is the strongest argument for striking down laws banning same-sex marriage, and the one that the Supreme Court should ultimately adopt. Judge Berzon gives a powerful and succinct explanation of the reason why laws banning same-sex marriage qualify as sex discrimination:

Idaho and Nevada's same-sex marriage prohibitions facially classify on the basis of sex. Susan Latta may not marry her partner Traci Ehlers for the sole reason that Ehlers is a woman; Latta could marry Ehlers if Latta were a man…. But for their gender, plaintiffs would be able to marry the partners of their choice. Their rights under the states' bans on same-sex marriage are wholly determined by their sex.

A law that facially dictates that a man may do X while a woman may not, or vice versa constitutes, without more, a gender classification.

Judge Berzon correctly points out that a law that allocates legal rights on the basis of sex counts as sex discrimination even if it is not motivated by hostility to one or another gender. Craig v. Boren, the 1976 case where the Supreme Court first ruled that sex discrimination is subject to heightened scrutiny involved a case where there was probably no such hostility. Craig invalidated an Oklahoma law under which 18 to 20 year old men, but not women of the same age, were forbidden to purchase 3.2% beer. It is unlikely that the Oklahoma legislature of that era was motivated by anti-male sexism.

Berzon also notes that laws banning same-sex marriage "if anything, classify more obviously on the basis of sex than on the basis of sexual orientation." Who you can and cannot marry under these laws is determined entirely by your gender, not your sexual orientation. Whether they are gay or straight, men are forbidden to marry other men, but permitted to marry women, and vice versa.

Finally, she emphasizes that, although much of the motivation for laws banning same-sex marriage is unrelated to sexism, as such, they do in part stem from a desire to enforce traditional gender norms. Same-sex couples are disfavored because they go against what for a long time were conventional understandings of masculinity and femininity. In that respect, laws banning same-sex marriage qualify as sex discrimination not only because they classify on the basis of gender, but also because they are in part intended to enforce gender-based behavioral norms.

It is now increasingly likely that the Supreme Court will issue a decision striking down laws banning same-sex marriage in the next few years. But it is not yet clear which of several possible rationales for this result it will rely on. In addition to the three theories outlined by the Ninth Circuit judges, it could also rule that the challenged laws fail even minimal rational basis scrutiny, possibly because they are motivated by "animus." Which option the court picks is likely to have important implications for future cases. The sex discrimination approach is both the most compelling and the least likely to create problematic slippery slope effects. Unlike the "fundamental rights" argument, for example, it would not call into question state laws refusing to recognize polygamous and incestuous marriages.