The Supreme Court Will Overturn Gay Marriage Bans, But Not Because They Discriminate Against Gays

gay marriage

After the oral arguments finally took place this week, almost everyone expects the Supreme Court to overturn state bans on same-sex marriage at the end of their session in June. But there may be a surprising reason why they do so that has nothing to do with discrimination against gays and lesbians.

The majority of the oral arguments dealt with the 14th Amendment “equal protection” argument that same-sex couples deserve the same access to the civil (not religious) institution of marriage that “traditional” opposite-sex couples do. It’s a compelling argument that declares the dignity of committed gay and lesbian couples is no less than straight couples. But it’s not what might clinch the majority vote on the court.

Roberts: “I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

Given his long history of pro-gay rulings, Justice Kennedy will likely make the decision this june a 5-4 majority already, and probably write the opinion himself. But if Chief Justice Roberts follows his line of questioning on the gender issue, he could make that a much more significant 6-3 majority, which might help cement the issue as a broad concensus rather than a partisan schism.

After all, gays aren’t prohibited from marrying because they’re gay, but because they choose to marry someone of the same sex. They still have the right to marry, as many conservatives love to argue trollishly, but only someone of the opposite sex, just like everyone else. Bisexuals aren’t prohibited from marrying someone of the opposite sex either. So really, it’s an issue of gender, not orientation. Should my right to marry be restricted to half the possible consenting adult parters, based on only their sex?

Ilya Somin of the Volokh Conspiracy cowrote an amicus brief for this case on that exact issue.

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.

Many people are still uncomfortable with sexual orientation as a protected classification. Indeed, orientation (and its frequent legal partner, gender identity) isn’t included in the vast majority of nondiscrimination law around the country. In most places, it’s perfectly legal to discriminate against someone because of their orientation.

While the 9th Circuit has decided that cases of discrimination involving orientation deserve heightened scrutiny, the Supreme Court has not yet granted that status. They do, of course, use that level of scrutiny for cases of sex discrimination. So if it can be argued that same-sex marriage bans are actually an issue of discrimination on the basis of sex, not orientation, it might be easier to prove and provide the opportunity for a larger majority ruling in favor of overturning those bans.

We’ll likely find out on June 25, the last day of the Court’s 2015 session.

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