When the Supreme Court hears the marriage equality cases starting tomorrow, there are lots of reasons why they should subject Proposition 8 and Section of 3 of Defense of Marriage Act to close judicial scrutiny and strike them down as unlawfully discriminatory. But one important reason that has received relatively little attention is the close connection between laws that treat men and women differently based on gender stereotypes and laws that discriminate on the basis of sexual orientation. In both contexts, the Constitution must provide strong protection against government efforts to perpetuate stereotyped gender roles.
Like discrimination on the basis of sex, discrimination on the basis of sexual orientation often rests on stereotypes about supposedly “natural,” “moral” or “traditional” behavior for women and men. Both types of discrimination often take the form of punishing or burdening individuals who fail to conform to gender stereotypes. In fact, federal courts have noted the difficulty of drawing a sharp line between sexual orientation discrimination and discrimination because of sex.
For example, in Centola v. Potter, a 2002 case about a male postal worker in Massachusetts who was tormented by his colleagues for being effeminate and subjected to anti-gay slurs even though he never disclosed his sexual orientation at work, the federal district court observed that “sex stereotyping,” or “making assumptions about an individual because of that person’s gender … that may or may not be true,” is central to discrimination based on sex or sexual orientation. It continued: “Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms.”
Laws prohibiting marriage between same-sex couples also embody stereotyped gender norms: that a woman should be attracted to a man, and that a man should be attracted to a woman; that a woman’s role is to form a household and a family with a man, and that a man’s role is to form a household and a family with a woman; and that women should not enter intimate relationships with each other, and that men should not enter intimate relationships with each other.
This matters because over the past 40 years, in case after case dealing with sex discrimination, the Supreme Court has emphasized that laws that discriminate based on gender stereotypes violate the federal Constitution’s equal protection principle. In particular, the Supreme Court has emphasized that government may not assume and enforce gender-specific rules based on stereotypes about roles that women and men perform within the family, whether as caregivers, breadwinners, heads of households, or parents. Such laws violate the Constitution because they fail to recognize that many men and women either do not wish to or are unable to conform to gender stereotypes. When the law enforces assumptions about the proper roles of men and women, it closes opportunity, depriving individuals of their essential liberty to depart from gendered expectations.
For most of modern history, the law of marriage in particular reflected and enforced gender stereotypes of husbands as breadwinners and heads of households and wives as economically dependent homemakers. In this way, the law imposed very separate and unequal roles on men and women within marriage. For example, well into the second half of the twentieth century, state laws limited married women’s ability to serve in various legal roles and to conduct independent business, and gave husbands control of marital assets. Over the past 40 years, courts interpreting the Constitution’s protection against sex discrimination have played a key role in dismantling this legal machinery. Under the law, men and women getting married today can decide for themselves the responsibilities each will shoulder as parents or wage earners or family decision-makers, regardless of whether these responsibilities conform to or depart from traditional arrangements.
Laws specifying that women can be wives only to men and that men can be husbands only to women (and that marriage requires one of each) are vestiges of an era that assumed that men and women must fill separate and complementary roles within marriage. In other words, they are almost all that is left of what was once a vast network of laws that explicitly imposed separate and unequal roles on men and women within marriage on the basis of gender stereotypes.
For decades, the Supreme Court has applied close constitutional scrutiny to laws that discriminate on the basis of sex (and other protected classes) because of the recognition that such laws frequently rely on overbroad and inaccurate stereotypes and that legal enforcement of such stereotypes arbitrarily limits individuals’ choices most personal decisions about their own lives. The same rationale required Section 3 of DOMA and Proposition 8 be subjected to close scrutiny under the Constitution and struck down.
To read more about the relationship between sex discrimination and sexual orientation discrimination, take a look at the brief filed by the National Women’s Law Center, the Williams Institute of UCLA, and other women’s legal groups and legal scholars in the marriage equality cases.
Emily Martin is Vice President and General Counsel at the National Women’s Law Center, where she undertakes cross-cutting projects addressing women’s health, economic security, and education and employment opportunities. She also provides in-house legal advice and representation to the Center. Prior to joining the Center, Ms. Martin served as Deputy Director of the Women’s Rights Project at the American Civil Liberties Union, where she spearheaded litigation, policy, and public education initiatives to advance the rights of women and girls, with a particular emphasis on the needs of low-income women and women of color. She also served as a law clerk for Senior Judge Wilfred Feinberg of the U.S. Court of Appeals for the Second Circuit and Judge T.S. Ellis, III, of the Eastern District of Virginia and previously worked for the Center as a recipient of the Georgetown Women’s Law and Public Policy Fellowship. She has served as Vice President and President of the Fair Housing Justice Center, a non-profit organization in New York City. She is a graduate of the University of Virginia and Yale Law School.