The Volokh Conspiracy
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Today, Judge Ortrie D. Smith of the federal district court for the Western District of Missouri invalidated that state's law banning same-sex marriage on the basis that it discriminates on the basis of sex. Here is the key passage from the opinion [HT: co-blogger Dale Carpenter]:
The restriction on same-sex marriage is a classification based on gender. The State's "permission to marry" depends on the gender of the would-be participants. The State would permit Jack and Jill to be married but not Jack and John. Why? Because in the latter example, the person Jack wishes to marry is male. The State's permission to marry depends on the genders of the participants, so the restriction is a gender-based classification.
Restrictions based on gender are subject to intermediate scrutiny. The State bears the burden of demonstrating that the classification serves important governmental objectives and that the use of a gender-based classification is substantially related to the achievement of that objective. E.g., United States v. Virginia, 518 U.S. 515, 532-33 (1996). The State has not carried its burden. Its sole justification for the restriction is the need to create rules that are predictable, consistent, and can be uniformly applied. Assuming this is a valid justification for a restriction, there is no suggestion as to why the gender-based classification is substantially related to that objective. A rule that ignores gender would be just as related to that objective and be just as easy to apply (and arguably would impose less of a burden on the Recorders of Deeds because they would not have to conduct any gender-based inquiry whatsoever). Regardless, administrative convenience is not a valid reason to differentiate between men and women.
The sex discrimination rationale for striking laws that restrict marriage to opposite-sex couples was previously endorsed by a Utah district court, and by Judge Marsha Berzon of the Ninth Circuit. For reasons I have outlined previously, I think this is the strongest of the several different constitutional arguments against laws banning same-sex marriage. Previous Supreme Court decisions make clear that laws discriminating on the basis of gender are subject to heightened scrutiny even if they are not motivated by hostility towards men or women, as such.
Today's ruling gives the sex discrimination argument a welcome boost. It also makes Judge Jeffrey Sutton's failure to even consider it in yesterday's Sixth Circuit decision upholding the constitutionality of same-sex marriage bans all the more glaring.
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