The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Political theorist Sherif Girgis has written a thoughtful response to my critique of his argument that laws banning same-sex marriage should not be subject to the same heightened scrutiny as other legislation that discriminates on the basis of gender. The response helpfully clarifies Girgis' position, but fails to fix its shortcomings.
I. Sexism and the motivation for excluding same-sex couples from the institution of marriage
Early in his response, Girgis disclaims reliance on the common argument that laws banning same-sex marriage are different from laws banning interracial marriage because, while the latter are motivated by racism, the former are not motivated by a desire to promote "male supremacy." I appreciate the clarification and am sorry if I misinterpreted his earlier reference to this argument as an endorsement of it. But if supposed lack of sexist motives does not distinguish laws banning same-sex marriage from other forms of gender discrimination, this weakens the case for exempting them from heightened judicial scrutiny.
Moreover, as I noted in my earlier post, the issue of motive cuts against Girgis' position in another way: sexism was historically one of the reasons for excluding same-sex relationships from marriage recognition in the first place. Same-sex relationships were excluded from marriage and often subjected to persecution in large part because their participants did not conform to traditional sex roles and were seen as a potential threat to male dominance. The presence of this motive does not by itself prove that discriminatory marriage laws should be struck down by courts. It also does not mean that everyone opposed to same-sex marriage is automatically a sexist. But it further undermines the case for subjecting legislation banning same-sex marriage to a lower standard of review than other sex-discriminatory laws. In modern jurisprudence, even laws that are formally gender-neutral or race-neutral are subjected to heightened scrutiny if they were enacted in large part out of racist sexist motives. This principle applies with even greater force to laws that are not gender-neutral at all, because, as Girgis himself puts it, they "involve.. treating sex as Virginia's ban [on interracial marriage] in Loving had treated race."
II. Is there a unique "conceptual" connection between opposite-sex marriage and reproduction? Does it matter if there is?
Girgis also tries to clarify his central argument for exempting laws banning same-sex marriage from heightened scrutiny, its connection to reproduction:
When a policy's form triggers extra scrutiny, again, judges pivot to examining its justifications: the state's reasons for thinking that the classification is sufficiently linked to a legitimate interest….
But my point was that in the case of a law classifying by sexual composition-by male-female pairing-the law's form itself already points to its own link to the common good, apart from mere social conventions, or merely contingent data about men and women. So the justification of this classification begins to appear at the first, "formal" stage of analysis….
neither (a) reproduction nor (b) its social value nor (c) its link to the male-female pairing is just a social construct….
Likewise, my argument isn't undermined by Somin's objection that "adoption and artificial insemination" make "same-sex marriage . . . also closely connected to reproduction." Neither adoption nor reproductive technology weakens the conceptual link tying male-female union to reproduction. So they do not justify a judicial presumption against classifications based on the male-female pairing. Even finding ways to make children out of two ova or two sperm cells wouldn't cut that link. It would only mean that, while male-female union has a conceptual link to reproduction, other groupings could have a contingent, technologically enabled link. The latter (unlike the male-female) link would require inquiry into empirical data; and it wouldn't be limited to same- or opposite-sex couples, but any group of adults deciding to produce and rear children.
None of this provides a good reason to treat laws banning same-sex marriage differently from other laws that discriminate on the basis of gender. At the risk of belaboring the obvious, it is important to emphasize that an opposite-sex relationship is neither necessary nor sufficient for reproduction to occur. Many opposite-sex couples are unwilling or unable to reproduce by standard biological means (e.g.- because of age or sterility). Conversely, reproduction and child-raising can and do occur in same-sex relationships. Girgis makes much of the fact that "male and female are defined with respect to the physical potential for… reproduction." But potential for reproduction is not the same thing as reproduction itself. The connection between potential and actuality is, in Girgis' terms, a merely "contingent" one.
Moreover, legal status of marriage is not and never has been limited to those couples who are willing and able to engage in conventional biological reproduction. There is of course a high correlation between marriage and biological reproduction. But that connection, although strong and important, is also "social" or "contingent" rather than "conceptual." Or, if it can be considered conceptual despite the fact that it is not an inevitable link, then the same goes for the connection between same-sex marriage and reproduction.
It is also worth noting that, as a social good, reproduction cannot be separated from child-raising. The latter is the main purpose of the former. And even if same-sex relationships had no direct connection to reproduction whatsoever, they still clearly can and do facilitate child-raising. Including them in the institution of marriage enhances same-sex couples' ability to raise children in a variety of ways.
Finally, even if there was a conceptual connection between opposite-sex marriage and reproduction in some strong sense of the term that does not apply to same-sex couples, this still would not justify exempting laws excluding the latter from heightened judicial scrutiny. The whole point of heightened scrutiny is to ensure that the gender classification in question really is necessary to advance the interest in question, and that there is not a comparably effective gender-neutral way of achieving the same goal. The need to conduct that inquiry is not obviated by the existence of a "conceptual" connection. In this case, the ability of opposite-sex marriage to facilitate reproduction and child-raising is in no way impaired by extending marriage rights to same-sex couples. In states where same-sex marriage exists, opposite-sex couples can still reproduce and raise children, and the institution of marriage can still facilitate those activities.