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Volokh Conspiracy

A cross-ideological amicus brief on sex discrimination and same-sex marriage


Northwestern University law Professor (and Balkinization blogger) Andrew Koppelman and I recently submitted an amicus brief urging the Supreme Court to invalidate laws banning same-sex marriage because the discriminate on the basis of sex. Andy is one of the leading academic experts on same-sex marriage, and I am very grateful for the opportunity to work with him on this. The brief is written on behalf of ourselves and four other academics: Stephen Clark (a leading expert on gay rights issues), Sanford Levinson (one of the nation's most prominent constitutional theorists), and well-known legal scholars Irina Manta and Erin Sheley.

Here is a brief excerpt that summarizes our argument:

Each of the laws challenged in this case clearly mandates that whether one can marry any specific person depends on whether one is a man or a woman. As a recent district court decision striking down a similar Missouri law explains, "[t]he 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." Lawson v. Kelly, 14-0622-CV-W-ODS, 2014 WL 5810215, at *8
(W.D. Mo. Nov. 7, 2014)….

Classifications based on sex… are subject to… intermediate level of scrutiny. "[S]tatutory classifications that distinguish between males and females" are presumptively invalid, and thus, to overcome this barrier, must be "substantially related" to the achievement of "important governmental objectives." See Craig [v. Boren], 429 U.S. at 197.

The brief explains why laws banning same-sex marriage qualify as sex discrimination subject to heightened scrutiny under both longstanding Supreme Court precedent, and the original meaning of the Fourteenth Amendment. In addition to explicitly classifying on the basis of gender, laws banning same-sex marriage are also often, at least in part, motivated by overbroad stereotypical generalizations about the sexes and their appropriate roles in the family. Legislation based on broad gender or racial stereotyping is in and of itself constitutionally suspect. We also rebut several standard objections to the sex discrimination argument, including claims that laws banning same-sex marriage do not discriminate on the basis of gender because they impose symmetrical burdens on both men and women, or because they are not motivated by sexism.

It is perhaps worth noting that this brief brings together people on different sides of the political spectrum who rarely agree on other disputed constitutional issues. Andy and I have a long history of disagreement on a variety of cases, most notably the Obamacare litigation, where we wrote amicus briefs, articles, and books, on opposite sides of the issue. The other four scholars joining the brief are also divided between those generally associated with the political right, and those on the left.

We are grateful to Stephen Clark and others for helpful suggestions on how to improve the brief, and to Joe Lombardo and Camilla Taylor for all their good work in helping to prepare it.