My take on Perry v. Scwharzenegger: Why Proposition 8 is NOT Unconstitutional Gender Discrimination

No, it is not unconstitutional gender discrimination because it is not actually gender discrimination.  Instead, Proposition 8 is unconstitutional under the Fourteenth Amendment as impermissible discrimination on the basis of sexual orientation.  

Fooled you there didn’t I?  :)  

(You might have thought I was a troll if you just read the headline or if you knew me, might have thought that I had a psychotic break or something)  

The California Supreme Court will hold a hearing next week to determine a question raised in Perry v. Schwarzenegger and that is whether the proponents of Prop 8 have standing under state law to appeal Judge Vaughn Walker’s 2010 decision holding Prop 8 unconstitutional.  Although the California Court will not address the merits of the case, it’s worth discussing the merits of the Prop 8 case should the 9th Circuit or the Supreme Court decide to hear the merits.  And it’s also worth discussing because even if Prop 8 dies without the Supreme Court rendering a decision on the merits, the issue will come up again.  In Perry, the plaintiffs have raised the argument that Prop 8 is unconstitutional as impermissible gender discrimination.  

Since there are many who are proponents of this argument, I wanted to take the time to point out why I do not like this argument and hope that, if heard on the merits, Prop 8 is not struck down on this ground.  

The argument that same-sex marriage prohibitions are gender discrimination (and therefore unconstitutional) is a popular argument that’s been around for a long time in both legal and political circles.  It’s been raised in just about every suit challenging a same-sex marriage prohibition (except maybe for Dean v. District of Columbia (D.C. 1995)).  

The gist of the argument is that same-sex marriage prohibitions discriminate on the basis of gender because the laws prohibit a man from doing something a woman may do (marry a man) and prohibit a woman from doing something a man may do (marry a woman).  

If some of you are wondering why this argument is used, it’s because gender discrimination under the U.S. Constitution requires intermediate scrutiny.  For the non-lawyers: basically that means the government has the burden of proving the legislation is valid and that burden is extremely high.  At a state level, this argument hits home because many state constitutions have their own Equal Rights Amendments (ERAs).  

To be sure, this argument is not a silly throwaway, it’s embraced by many prominent lawyers and activists including William Eskridge Jr., who is one of the greatest gay legal minds in the country (and a personal hero to me).  

I hate it.

And I hate it for both legal and social reasons.  Here’s why:

1.  It never works:  Some will argue that my hope in sexual orientation receiving suspect classification is misplaced and that I need to be pragmatic.  Some will argue that the gender discrimination argument will be the only way to strike down same-sex marriage prohibitions.  But that’s not right.  Granted the Hawaii Supreme Court bought the argument to a degree.  But their decision in Baehr v. Lewin (Haw. 1993) did not lead to a single same-sex marriage in Hawaii.  Instead, the Hawaii Supreme Court was able to dump the case off on a lower court.  That lower court did hold the law was unconstitutional but then stayed the decision so that the state would have time to amend its constitution, which it did.  

Now I’ve seen bloggers write that if the Supreme Court upholds Prop 8, that will be motivation to finally enact a federal ERA to ensure same-sex marriage rights.  That’s not right either.  State court after state court in states with ERA’s in their constitution have upheld same-sex marriage laws by saying they do NOT discriminate on the basis of gender.  What I think is most telling is that the California and Connecticut Constitutions both have ERA’s in their state constitution yet neither was used.  In fact, much the to aghast of some activists, the California Supreme Court, in In Re Marriage Cases (Cal. 2008) (which was one of the most pro LGBT opinions in legal history) held that our same-sex marriage prohibitions could not properly be considered gender discrimination.  

2.  It’s NOT actual gender discrimination:  Same-sex marriage prohibitions treat both genders equally.  Now that leads to some to retort with the Loving v. Virginia (1967) analogy (one I agree with respect to the Due Process analysis of that case) where Virginia’s defense that both blacks and whites were treated equally didn’t hold water.  This is inapposite and misplaced.  The point there was that such laws were intended to discriminate agains blacks and promote white supremacy.  What gender supremacy are same-sex marriage prohibitions intended to promote?  The answer is none.  There is no intent to discriminate against any gender, no disparate impact on any particular gender, and no gender that becomes inferior because of such laws.  

3.  It hides the true discriminatory issue and attempts to win on a technicality:  It’s pretty much undisputed that same-sex marriages discriminate on the basis of sexual orientation (even courts that have upheld the laws as constitutional have agreed on that).  But instead of addressing the true issues and the true harms and the true evils of same-sex marriage prohibitions, the gender discrimination argument attempts to hide.  Essentially, what this argument says is that discrimination on the basis of sexual orientation is a-okay but same-sex marriage should be allowed on a technicality of gender dicrimination.  

4.  It diminishes and trivializes the reasons why same-sex couples want the right to marry:  The gender discrimination argument posits that people may want to marry for purely economic and companionship reasons.  Such an argument dimishes and trivializes those gay and lesbian couples in long-term, committed, relationships who want to share a life together and want the dignity of a marriage license and the attendant benefits.  And such an argument diminishes and trivializes the millions of young gay men and women who simply want to have the same rights and opportunities available to them as their straight peers.  

By making these arguments, same-sex marriage gets trivialized into a tool of folks who simply want to marry those of the same gender in order to either 1) benefit themselves, 2) test the limits of society, or 3) piss off their parents and experiment.  When my sister lived in Boston, she had every opportunity to go down to the courthouse and marry another woman.  She didn’t do that though because she is straight.  

5.  It perpetuates negative, demeaning, and above all completely inaccurate stereptypes about gays and lesbians:  My brother had this horrible friend in college, who once admitted to me that she had hooked up with at least 12 women (in addition to the 500 plus men).  She of course opposed same-sex marriage and equal rights though she claimed to understand the needs “for sexual release and experimentation.”  She explained that with gay men, she had some sort of understanding because she couldn’t understand how a man couldn’t get hard for her (she reasoned “there must be something wrong with him”……).  But with women, she reasoned, lesbians attempting to enter into long term relationships were just those who couldn’t find a man.  I use this extreme example to prove the following point:

With the gender discrimination argument, the myth is perpetuated that lesbian couples are just those women who are too ugly or too old to get a man to date them or marry them.  Thus these ugly, nasty, women must resort to marriages to those of the same gender, not out of true love, but out of a need to get together because no man would want them.  Then there’s the myth that gay men are those with extreme mental, psychological, and emotional disturbances.  Basically, a man who wants to marry another man is one who has sexual problem with women.  When we use the gender discrimination argument, we further these negative stereotypes.  It perpetuates these stereotypes because it suggests, not that these stereotypes are wrong, but in fact they might even be right.  It diminishes gays and lesbians, who we are as individuals, and our relationships.  

For these reasons, I continue to oppose the gender discrimination argument on the issue of same-sex marriage.  And I remain hopeful that when same-sex marriage prohibitions are eventually held to be unconstitutional (whether Prop 8 or a different one), they will be held unconstitutional for the right reasons.  

2 thoughts on “My take on Perry v. Scwharzenegger: Why Proposition 8 is NOT Unconstitutional Gender Discrimination

  1. Yes, gender discrimination doesn’t work because it’s not addressing the central issue: GLBT citizens cannot marry each other because of their sexuality. Positing a same-gender heterosexual couple who wants to get married gets us back to the problem: straight people don’t seem to have any problem getting marriage rights. It’s gay people who are denied the rights. I can even imagine the reddest of red states making a law prohibiting gay couples from marrying, and another law allowing all straight couples, including those rare same-gender heteros, to marry. Sexual discrimination actively denies a minority group equal rights under the law; gender discrimination names no minority group, and by itself shows no injury to real plaintiffs.

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