justice kennedy

Supreme Court Justice Anthony Kennedy

Last week  I came across a piece by Sonja West at Slate that was quite interesting, given all of the chatter about the upcoming Supreme Court rulings on Prop 8 and DOMA. The major arguments that have been made about the civil right of gays and lesbians to marry have primarily rested on sexual orientation and the institutionalized discrimination that still exists in myriad ways, including employment bias and lack of protection in that arena.

But what if one of the swing justices considering the culture, legal recognition and marriage is thinking about this differently? West:

In March, during the oral argument about California’s same-sex marriage ban, Kennedy said that he was “trying to wrestle” with a “difficult question” about the constitutionality of same-sex marriage. The question on his mind was whether prohibitions on same-sex marriage are a form of gender discrimination. The lawyer defending the ban, Charles Cooper, responded that this was a case about sexual orientation, not gender, and the argument quickly moved in a different direction.

But we shouldn’t dismiss Kennedy’s question about gender discrimination too hastily. The court’s precedents on gender might offer Kennedy the conservative compromise he is looking for: a way to recognize a constitutional right for same-sex marriage in a limited way.

The gender-discrimination argument is not complicated. Imagine Alice applies for a license to marry Charlie and it is granted. Yet if Bob applied for a license to marry Charlie, he would be denied. The crucial difference between Alice and Bob is, of course, their gender—not their sexual orientation. In fact, as we all know, homosexuals have long been free to marry members of the opposite sex. Thus, Kennedy is wrestling with the possibility that Bob is being discriminated against because he is a man and not because he is gay. And, if so, should the court apply the same level of heightened protection it traditionally applies whenever the government treats men and women differently?

Are civil marriage equality activists missing opportunities by working the status quo angle? Would a gender discrimination argument be more palatable to courts wrestling with this?

During the arguments over California’s Proposition 8 banning gay marriage, Cooper’s response to Kennedy’s question offered another common, yet flawed, retort to the gender-discrimination argument. Cooper said that this case involves a gender-based classification only “in the sense that marriage itself is a gendered institution, a gendered term.” The government in the Hawaii case similarly argued “the right of persons of the same sex to marry one another does not exist because marriage, by definition and usage, means a special relationship between a man and a woman.”

Surely Kennedy could easily see through this kind of circular logic. Marriage is a “gendered term” that “by definition and usage” involves only members of the opposite sex precisely because we have always prohibited same-sex couples from marrying. In Loving, there was a similar reliance on the so-called natural state of marriage. The trial court judge declared “there was no cause for” interracial marriage because “God created the races … and did not intend for the races to mix.” But it proves nothing to say that marriage is innately one way and must remain that way when—whether because of alleged divine order or legal fiat—it has never had the opportunity to be any other way. Marriage is no more an inherently gendered institution than an inherently racial one.

Some reinforcement of the fact that marriage itself can ‘withstand” redefinition (a common flawed argument tossed out there by the professional anti-LGBT Beltway crowd and various bible-beaters) came in a study that discovered the obvious — “Study Finds Marriage Equality Doesn’t Affect Opposite-Sex Marriage Rates” -

The study, authored by Alexis Dinno and Chelsea Whitney of Portland State University’s School of Community Health, was published in the online research journal PLOS ONE. Dinno and Whitney compared rates in the 13 states which had legalized marriage equality or strong civil unions before 2009 to those in other states, finding that opposite-sex marriage rates did not differ in those states to a statistically significant degree:

“We found that state rates of opposite sex marriage in the U.S. from 1989–2009 do not significantly differ when same sex marriage and union laws are in force compared to when they are not in force, contrary both to concerns raised by opponents of same sex marriage and same sex civil unions,” the authors wrote.

Yawn. Earth shattering news, I tell you. Man-Woman Marriage is alive and well. But I can only the imagine the yelps of protest that this study will generate by the anti-equality crowd.