Sex discrimination and same-sex marriage in USA

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 burdens
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on both men and women, and claims that these laws do not constitute gender discrimination because they are not motivated by sexism.

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.