Re-Orienting the Sex Discrimination Argument for Gay Rights after Lawrence V. Texas

By Williams, Jeffrey A. | Columbia Journal of Gender and Law, Winter 2005 | Go to article overview

Re-Orienting the Sex Discrimination Argument for Gay Rights after Lawrence V. Texas


Williams, Jeffrey A., Columbia Journal of Gender and Law


"Heightened equal protection scrutiny is appropriate for laws like Section 21.06 that use a sexual-orientation-based classification. It is also appropriate where, as here, the law employs a gender-based classification to discriminate against gay people." (1)

This claim of sex discrimination in the petitioners' brief in Lawrence v. Texas, (2) a case about criminalized homosexual sodomy, must seem quite out of place to some. (3) Respondents simply belittled its importance in their reply. (4) They chose not to address the extensive argument that the National Organization for Women (NOW) briefed defending sex discrimination. (5) They also did not consider the dissent in the Texas Court below, which similarly relied on a sex discrimination argument. (6) In fact, the sex discrimination argument in Lawrence was far more than a footnote. But the respondents devoted their attention to sexual orientation claims instead. (7) The Supreme Court did, too. (8)

Sex discrimination claims for homosexuals have surfaced again in the arena of same-sex marriage challenges. In Massachusetts, the Supreme Judicial Court rejected the treatment of homosexuals as second-class citizens but recognized at least a terminological difficulty. (9) In San Francisco, Mayor Newsom has very clearly relied on a sex equality claim. (10) Only recently, the New York courts have also entered the same-sex marriage debate, with an opinion by Judge Doris Ling-Cohan that affirmed marital rights for same-sex couples without relying on the sex discrimination argument. (11) The legal relationship between sex discrimination and sexual orientation discrimination arguments is currently unclear because the courts have been reluctant to protect homosexuals under any legal theory. As that reluctance passes, however, the need to examine this relationship has become pressing.

This Article argues that a sex discrimination argument for gay rights under the Equal Protection Clause is incompatible with the developing jurisprudence of sexual orientation discrimination and should be reformulated as a postmodern argument for how various biases can and do intersect. Part I examines the sex discrimination and sexual orientation discrimination arguments individually. Part H explores a deep and persistent incompatibility between these arguments. Part III then resolves this conflict by pursuing an intersectional approach to the Equal Protection Clause.

I. TWO EQUAL PROTECTION ARGUMENTS FOR GAY RIGHTS ARE EACH PERSUASIVE

Both sex discrimination arguments and sexual orientation discrimination arguments are persuasive under the current Equal Protection jurisprudence. The Supreme Court has distinguished three standards of review for Equal Protection cases: a lenient rational review, a nearly fatal strict scrutiny, and a sensitive intermediate level of review. These "tiers of scrutiny" vary according to the relationship of the law and the strength of the asserted state interest. Strict scrutiny requires a law be narrowly tailored towards meeting a compelling state interest. (12) Strict scrutiny is not fatal in fact, however, and both the rational and intermediate standards have been applied less deferentially by the modern Court. (13)

Courts and commentators have devoted tremendous attention to these tiers of scrutiny. However, Justice Stevens once noted how simpler questions come first:

   In every equal protection case, we have to ask certain basic
   questions. What class is harmed by the legislation, and has it been
   subjected to a "tradition of disfavor" by our laws? What is the
   public purpose that is being served by the law? What is the
   characteristic of the disadvantaged class that justifies disparate
   treatment? (14)

Sex discrimination and sexual orientation discrimination claims for homosexuals answer these "basic" questions in different ways. Still, the immediate results can be the same. Each claim is a persuasive theory for the legal equality of homosexuals.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Re-Orienting the Sex Discrimination Argument for Gay Rights after Lawrence V. Texas
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.