Northwestern University law professor Andrew Koppelman and I
have published an op ed in USA Today explaining why the Supreme court
should strike down laws banning same-sex marriage because they discriminate on
the basis of sex. The op ed is based on an amicus brief we coauthored on behalf of ourselves
and an ideologically diverse group of legal scholars.
Here is an excerpt:
As the Supreme Court considers
the constitutionality of laws banning same-sex marriage later this month, few
have noticed that the case can easily be resolved under existing precedent.
Laws banning gay marriage are
unconstitutional because they discriminate on the basis of gender. If same-sex
marriage is forbidden, Anne is allowed to marry Bob, but Charles can’t. Charles
is denied the right to marry Bob, solely because Charles is a man. Denial of a
legal right solely because of gender is the very essence of sex discrimination.
Laws banning gay marriage
discriminate on the basis of gender even more clearly than on the basis of
sexual orientation. Anne is still allowed to marry Charles, even if one of them
happens to be gay or lesbian. Bob is denied that right whether he is gay or
not. The Supreme Court has long held that laws discriminating based on gender
must be presumed unconstitutional and invalidated unless the government can
prove that they can pass rigorous, heightened judicial scrutiny.
The op ed also rebuts
two standard objections to the sex discrimination argument: the argument that
laws banning same-sex marriage do not discriminate on the basis of gender
because they impose symmetrical burdensWatch this Video
As sometimes happens, the headline (which, per usual practice in
newspapers, was not drafted by us) does not fully reflect our argument [but see
UPDATE below]. Our position is not that sexual orientation is completely
irrelevant to the case, but that the sex discrimination rationale for striking
down laws banning same-sex marriage is stronger than arguments that focus on
sexual orientation discrimination alone.