APA Newsletters
Spring 2000
Volume 99, Number 2

Articles

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John M. Orlando
The University of Vermont

I. Same-Sex Marriage

The gay community has emerged as a political force in the past twenty years, with its efforts paying dividends at a number of levels. Not only have openly gay politicians successfully run for office, but many municipalities and states—and even the federal government—now have laws barring discrimination against gays.1 However, the gay community has had far less success in its most recent battle: the fight for same-sex marriage. With the current political climate making legislative action to extend marriage to same-sex couples a virtual impossibility, the gay community has turned to the courts for relief. Yet, no court in the country has recognized the right to same-sex marriage.2

One strategy adopted by supporters of same-sex marriage is to argue that barring same-sex marriage constitutes gender-based discrimination.3 If so, then such laws would violate the Equal Protection Clause found in the Fourteenth Amendment to the Constitution. Those who argue in this vein draw an analogy to anti-miscegenation laws, which were deemed unconstitutional in the historic Loving case.4 The aim is to turn plaintiffs into a protected class, because while homosexuality has never been recognized as a protected category, gender has.

At first blush, the claim that current marriage laws discriminate with respect to gender seems counterintuitive, since neither women nor men as a class are singled out for discrimination by these laws. However, anti-miscegenation laws also did not pick out a particular race for discrimination. Critics of the analogy counter that anti-miscegenation laws were nevertheless rooted in contempt for blacks, and harmed them by enforcing a race-based caste system, while current marriage laws do neither with respect to gender.

Advocates of same-sex marriage respond that current marriage laws do in fact support a gender-based caste system that adversely affects women. They claim that marriage laws symbolize, and encourage, a social system whereby women are relegated to the home and their interests subsumed under those of their husbands. Resistance to same-sex marriage, on this view, results from the worry that traditional gender roles will become less well defined. Thus, implementing true sexual equality requires providing gays with access to marriage in order to break these attitudes.

The problem with this argument is that the connection between resistance to same-sex marriage and preservation of traditional gender roles is tenuous at best. According to advocates of the position, resistance to same-sex marriage is due to a more general anxiety about the existence of homosexuality. This is because traditional gender roles are premised on the view of men as active and women as passive. It is argued that the passive/active dichotomy is itself either symbolized by, or perhaps even due to, the heterosexual act of sex. Since the homosexual act of sex places one male partner in the traditionally passive role of the woman, it thus constitutes an attack on the link between men and activity, and women and passivity. (See Sunstein, subsection III.)

While these commentators appeal to certain psychological and sociological studies in support of their contention,5 it is hard to imagine any court delving this deeply into the underlying symbolic nature of homosexual and heterosexual sex, or of the marriage relationship in general. Even if a judge were personally convinced of this representation of human relationships, it is doubtful that he or she would premise such a monumental decision on a controversial and interpretive psychology. Sunstein himself concedes that the position is "quite adventurous," so much so that "judges should probably not accept the argument" (Sunstein, 270, 280).

Beyond this matter, it is undeniable that women have made considerable strides toward equality with men under current marriage laws. Surely the gender stratification within society is not as rigid as it once was. Thus, it is not clear that opening marriage to same-sex couples is necessary for realizing full equality between the sexes. The advocate of same-sex marriage could respond by retracting the claim that same-sex marriage is necessary for realizing full equality of the sexes, and instead rest his or her position solely on the claim that prohibitions on same-sex marriage have their source in impermissible gender stereotypes. But this would require a judge to venture into the legal minefield of evaluating the sources of peoples’ attitudes. Courts would soon discover that many laws can be traced to nothing more than, say, a religious origin, thus requiring a decision concerning whether such origins count as pernicious. Understandably, courts are not enthusiastic about treading into such dangerous territory. Connecting current marriage laws to discrimination against women also has the curious effect of excluding males from same-sex marriage lawsuits, since two males could not claim to be harmed by the discrimination in question.6

But all is not lost for advocates of same-sex marriage. I will argue that they can demonstrate that bans on same-sex marriage constitute gender discrimination on much firmer grounds. In fact, the case actually requires less than these theorists believe. Commentators on both sides of the issue assume that the case for gender discrimination requires demonstrating that women as a class are harmed by current marriage laws due to less than careful attention to the standards used to interpret the Equal Protection Clause, as well as misreading the Loving decision. I will first outline the procedures for applying the Equal Protection Clause, then examine same-sex marriage through the prism of the clause, and finally show through Loving that the issues with which commentators have been concerned up to now are in reality not relevant.

II. The Equal Protection Clause

The Equal Protection Clause stipulates that "no State shall . . . deny to any person . . . the equal protection of the laws." This directive requires a significant amount of interpretation, since many laws do not apply equally to all persons (e.g., minors are treated differently than adults), and the clause has been extended to include benefits as well as protections. The courts have adopted a two-step method for interpreting the Equal Protection Clause.7 First, a court must determine the level of scrutiny used to analyze the law. Second, a court tests the justifications advanced by the State in defense of the law in question to discern if they pass the review applicable to that law.

There are three possible levels of scrutiny: heightened (or strict), intermediate, and minimal.8 If plaintiffs can demonstrate that a law implicates a "fundamental right," or that they are members of a "suspect classification," then the Court must apply the "heightened scrutiny analysis" to the law. This requires the State to demonstrate that a "compelling interest" supports the law, and that the law "is narrowly tailored to serve that objective." In U.S. courts, classifications based on gender activate an intermediate level of scrutiny, whereby a law must serve an "important" governmental purpose, and be "substantially related" to that purpose. If neither strict nor intermediate scrutiny apply, then the Court is obligated to apply the "rational basis review," which requires only that a law reasonably relate to a legitimate public purpose (Baker, 146 and Rodriguez, 16–17). In practice, cases are often won or lost at the first step in the analysis. A law is unlikely to pass the heightened scrutiny analysis, which has been described as "strict in theory but fatal in fact."9 Conversely, a law fails the rational basis review only if "similar people are treated differently on arbitrary or capricious grounds" (Baker, 146). In general, courts are hesitant to strike down a law under the rational basis review for fear of acting as a second legislature. Cases subjected to the intermediate level of scrutiny are harder to predict, but there is a certain respect in which it is closer to strict scrutiny than the rational basis review, since the burden of proof is placed on the State to justify gender-based discrimination.

III. Gender-Based Discrimination

Let us now return to the question of whether laws excluding same-sex couples from marriage constitute gender discrimination. This requires first asking if such laws implicate gender as a category. To do so, we will return to the analogy of anti-miscegenation laws, which were deemed to implicate race as a category. If current marriage laws are relevantly similar to anti-miscegenation laws, then these laws implicate gender as a "quasi-suspect" classification. In order to determine if this is the case, I will examine the underlying logical structure of both laws.

Let us assume that a black man wished to marry a white woman in a state with anti-miscegenation laws. Here, individual X, of race R1, is unable to marry individual Y, of race R2, due to Y’s race. That is, if X’s race were different, the union would be legal. Now take the case of laws forbidding same-sex marriage. Here, individual X, of sex S1, is unable to marry individual Y, of sex S1, due to Y’s sex. Again, if X’s sex were different, then the union would be legal. The question is whether this is a case of gender-based discrimination. If it is not, it must be because there is a relevant difference between the two situations. What, then, might that difference be?

Of course, the relevant difference cannot be that one law appeals to race and the other to gender, since this is to concede that marriage laws discriminate with respect to gender. Another possible difference is that in the race example, person Y possesses a different characteristic than person X, while in the second example person Y possesses the same characteristic as person X. However, this also cannot be a relevant difference, for imagine a law that forbid individuals from marrying members of the same race. Clearly, such a law would implicate race as a category just as do laws that forbid interracial marriages. Similarly, a law forbidding members of the same sex from entering into business partnerships would surely be deemed to implicate gender as a category.

As noted earlier, critics of the analogy claim that anti-miscegenation laws were a result of prejudice against blacks, and supported a caste system based on race. Thus, they are distinguished from current marriage laws in terms of motive and intent. Advocates of same-sex marriage respond by arguing that current marriage laws have similarly harmful motives and intent with respect to women. The debate has then centered on whether the latter case can be made.

What neither side has asked is where issues of motive and intent enter into the analysis required by the Equal Protection Clause. Commentators forget that the Equal Protection Clause is applied in two steps: the determination of the level of scrutiny applicable to the law, and the determination of whether the law in question satisfies that test. For our purposes, this means first asking if marriage laws implicate gender as a category, and if so, whether they meet the standards of justification required by intermediate scrutiny. By ignoring this distinction, commentators telescope the two stages of the analysis into one. Yet the two issues were clearly meant to be kept separate, since the determination that a law implicates a suspect classification does not automatically make it unconstitutional; it only raises the standards used to justify it. Thus, the question is whether issues of motive and intent are relevant for determining if a law in question implicates a suspect classification, or instead in testing the justifications for a law.

This question is not merely academic, as it makes a significant difference in the burdens of proof required of parties in same-sex marriage lawsuits. If questions of intent and effect fall into the second stage of analysis, then the analysis has already moved to the level of intermediate scrutiny. That level requires that a state provide positive justifications for excluding same-sex couples from marriages. Plaintiffs in a same-sex marriage lawsuit would then need not demonstrate that women as a class are harmed by current laws. The burden would instead be on the State to justify its laws as advancing an "important government purpose," and that they are "narrowly tailored" to fit that purpose. That positive case is not made by thwarting the negative argument that women are harmed by current laws; it requires establishing that current laws are needed because they provide some important benefit.

I argue that issues of motive and intent are not relevant to determining whether a law implicates a suspect classification, because the mere structure of the law is sufficient for that purpose. I will take my cue from Loving, the final word on anti-miscegenation laws and the legal basis of the anti-miscegenation analogy. Advocates of the anti-miscegenation analogy argue that issues of motive and intent were central to deciding this case. Sunstein, for instance, asserts that "[t]he key sentence in Loving says that ‘the racial classifications [at issue] must stand on their own justification, as measures designed to maintain White Supremacy’" (Sunstein, 173). Sunstein interprets the Supreme Court’s reasoning as asserting that:

[e]ven though the ban on racial marriage treats blacks and white alike—even though there is formal equality—the ban is transparently an effort to keep the races separate and, by so doing, to maintain the form and the conception of racial difference that are indispensable to White Supremacy. Viewed in context—in light of its actual motivations and its actual effects—the ban was thus part of a system of racial caste.

From this, Sunstein concludes that "[t]he Supreme Court’s reference to ‘White Supremacy’ was thus both necessary and sufficient to defeat Virginia’s argument" (emphasis added) (Sunstein, 176). In Sunstein’s mind (and Koppelman follows him here), the intent and effect of the anti-miscegenation laws were the key to their undoing in Loving, and must therefore be the key to the undoing of current marriage laws.10

But this reading of Loving is simply mistaken. The State of Virginia argued in Loving that because its laws applied equally to whites and blacks, they did not implicate race as a class. The Court’s very first response was to claim that this fact, even if true, did not matter to the question of whether the laws in question implicate race as a category. The Court said that "[b]ecause we reject the notion that the mere ‘equal application’ of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discriminations, we do not accept the state’s contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose" (Loving, 4). The point is made even more forcefully later in the ruling when the Court says that "[t]here can be no question that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. . . . At the very least, the Equal Protection Clause demands that racial classifications . . . be subjected to the ‘most rigid scrutiny’" (Loving, 5). The message in both passages is that the mere use of racial classifications is sufficient to activate the heightened scrutiny analysis.

But what about the reference to "White Supremacy" in Loving? This passage has been taken out of context. The reference comes after the Court has determined that the use of racial distinctions by itself activates "the most rigid scrutiny." The Court then turns to examining possible justifications for those laws, as required by the established means of applying the Equal Protection Clause. Thus, the reference to maintaining a caste system comes in the second stage of the analysis, when judging whether the laws in question can be said to meet the level of review applicable to the heightened scrutiny analysis. Taken with the sentence immediately preceding it, the passage reads: "[t]here is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving White persons demonstrates that the racial classifications must stand on their own justification as measures designed to maintain White Supremacy." In other words, the Court reasons that the law’s unequal application demonstrates that maintaining "White Supremacy" is their only purpose, which does not provide an acceptable purpose for such laws. Of course, this conclusion does not follow, since the fact that the laws serve one purpose does not preclude them from serving other purposes as well. But the larger point is that the law’s intent to maintain "White Supremacy" was not a factor in the Court’s decision that the law implicated race as a category; the fact that distinctions were made by race was sufficient. Analogously, the motive and effects of marriage laws would not be a factor in determining whether those laws implicated gender as a category.11

IV. Conclusion

I argue that advocates of the gender discrimination argument with regard to same-sex marriage have unwittingly been playing the opposition’s game in tacitly accepting a conception of gender discrimination that stacks the deck against them. This is due to misreading one brief reference in Loving. The result is the mistaken view that racial classifications are implicated when a law has the motive or effect of harming a particular race. However, the Loving court very clearly established that the mere fact that one is excluded from the protections or benefits of the State due to one’s race was sufficient for activating the heightened scrutiny analysis. As Justice Stewart says in his concurring opinion, "it is simply not possible for a state law to be valid which makes the criminality of the act depend upon the race of the actor" (Loving, 6). If so, then the fact that one is prevented from marrying due to one’s gender should be sufficient for activating the intermediate level of scrutiny associated with gender distinctions. In other words, the structure of current marriage laws is all that is needed for establishing the analogy with anti-miscegenation laws. There is no need to search for any hidden motives or effects of those laws. Of course, marriage laws must still be tested under intermediate scrutiny, and they may in fact pass the intermediate scrutiny analysis. But the issue has been reoriented away from questions of harm to women as a class toward how a State might justify excluding same-sex couples from the benefits of marriage.12

Note that under the interpretation of anti-miscegenation laws advanced by commentators such as Sunstein, if a city enacted an anti-miscegenation law under the honest belief that interracial marriages would lead to birth defects, plaintiffs would have no grounds for challenging the law. This strikes me as counterintuitive. Luckily, Loving makes it clear that such a law would be examined under the microscope of the heightened scrutiny analysis. The city would be required to present strong evidence in support of its contention. This seems closer to the spirit of equal protection under the law.