Academic journal article South Dakota Law Review

But-For Sex: Equal Protection and the Individual Right to Marry a Specific Person without Regard to Sex

Academic journal article South Dakota Law Review

But-For Sex: Equal Protection and the Individual Right to Marry a Specific Person without Regard to Sex

Article excerpt

When California's notorious Proposition 8 came before the United States Supreme Court two years ago, (1) Justice Kennedy made a potentially significant remark about discrimination against same-sex partners. When the oral argument turned to the appropriate level of equal protection scrutiny for classifications based on sexual orientation, Kennedy interjected, "Do you believe this can be treated as a gender-based classification? ... It's a difficult question that I've been trying to wrestle with." (2)

Kennedy was recurring to a longstanding legal theory characterizing the exclusion of same-sex partners from civil marriage as a sex-based classification. Ironically, this theory was first articulated by traditionalists opposed to same-sex marriage. In the 1970s, they used it to argue against ratification of the federal Equal Rights Amendment, (3) which would have required probing judicial scrutiny of governmental actions based on an individual's sex. (4) The sex-discrimination theory re-emerged in 1993, when the Hawaii Supreme Court affirmatively adopted it as the rationale for closely scrutinizing the exclusion of same-sex partners from civil marriage. (5) Since then, the theory has played a supporting role in other constitutional challenges as an alternative basis for invalidating the same-sex exclusion, (6) as in a federal ruling now on appeal to the Eighth Circuit. (7)

Kennedy's uncertainty about the theory is understandable. The exclusion of same-sex partners from civil marriage harms those lesbians, gay men, and bisexuals who wish to marry a same-sex partner, so one is apt to assume that the exclusion classifies on the basis of sexual orientation, not sex. When same-sex partners are excluded from civil marriage by a law that authorizes only opposite sex marriages--such as South Dakota's constitutional stipulation (8)--or by one that disallows same-sex marriages--such as the state's statutory exception to its policy of interstate recognition (9)--the intuitive reaction is often that the law discriminates against gays and thus classifies on the basis of sexual orientation. A law of this type does not look exactly like the kind of laws that the Court has deemed sex-based classifications. It seems different from such sex-based classifications as the exclusion of women from the Virginia Military Institute (10) or the adoption of different ages of majority for women and men. (11) The sex-based disparate treatment of women and men is manifest in those kinds of governmental actions, whereas any sex-based disparate treatment in the exclusion of same-sex partners from civil marriage is less obvious and thus more contestable. In an analogous context, for instance, Justice Scalia argued that a sodomy ban applicable only to same-sex partners did not facially classify on the basis of sex because "[m]en and women ... [were] all subject to its prohibition of deviate sexual intercourse with someone of the same sex." (12) It is not surprising that Kennedy has been uncertain whether the exclusion of same-sex partners from civil marriage can be viewed as a sex-based classification.

Nevertheless, as I have argued previously, (13) the answer to Kennedy's question is yes. Not only can the exclusion of same-sex partners from civil marriage be viewed as a sex-based classification, but that theory is actually the best way to view the exclusion, the way most consistent with existing equal protection doctrine. Critics of the theory, including Scalia, have generally rejected it only by contradicting the fundamental premise that equal protection is an individual right to a specific opportunity, not a guarantee of group-based parity. Whenever the government makes an individual's sex the but-for cause of a denial of a specific opportunity, the denial is a sex-based classification, which triggers intermediate scrutiny (14) and requires an "exceedingly persuasive justification." (15) As I shall explain, the exclusion of same-sex partners from civil marriage also triggers that standard of review because it denies an individual, because of her sex, the unique opportunity of marrying the specific person she loves. …

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