During oral argument in Obergefell v. Hodges, the same-sex marriage case, Chief Justice John Roberts asked an important, substantive question that had some commentators scratching their heads. The plaintiffs' lawyer had just made the argument that bans on gays marrying amounts to discrimination on the basis of sexual orientation. Then, the Chief Justice said:
I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?
In a way, he's right. Sue can marry Joe because she's a woman; Tom can't marry Joe because he's a man. That's sex discrimination. And although this seems pretty obvious, the argument got scant attention in the volumes of briefs before the Court in Obergefell and was raised only a few times during the post-Windsor onslaught of cases over the last two years.
That is not to say that the sex discrimination argument is entirely foreign to the marriage equality movement. Indeed, as Northwestern Law Professor Andrew Koppelman and George Mason Law Professor Ilya Somin noted in their Obergefell amicus brief, some of the first generation of marriage equality cases relied on a sex discrimination rationale. And if his question is any indication of his ultimate opinion -- a dubious correlation, however -- the Chief Justice could be another vote in favor of marriage equality.
Perhaps most gay couples yearning to marry don't care how we get to a nationwide freedom to marry, just as long as we get there in the end. After all, a win is a win is a win. But a sex discrimination argument would be like winning a battle because the enemy engaged in a strategic retreat: it is not only unsatisfying, it doesn't answer the ultimate question of who wins the war. It leaves gay persons without necessary constitutional protections and opens us up to myriad forms of discrimination. Arguing that gay marriage bans are examples of sex discrimination is a half truth: they may be discriminating on the basis of sex, but they absolutely discriminate on the basis of sexual orientation, as well. To ignore the latter just because the former is a little easier offers tacit approval for antigay discrimination.
I tease out the sex discrimination argument, explain why it should be discarded, and speculate on how the argument could play out in June, AFTER THE JUMP...