Justice Roberts revives an old argument that could save gay marriage

This artist rendering shows former Michigan Solicitor General John Bursch defending state laws during the Supreme Court hearing on same-sex marriage. Justices, from left: Sonia Sotomayor, Stephen Breyer, Antonin Scalia, Ruth Bader Ginsburg, Samuel Alito and Elena Kagan. (Photo: Dana Verkouteren/AP)

The gay rights movement has spent years trying to convince judges across the country that prohibiting same-sex marriage discriminates against gays and lesbians solely because of their sexual orientation.

But on Tuesday, a surprising question from Chief Justice John Roberts revived a very different legal strategy that the gay rights movement had all but abandoned.

Roberts, who generally sides with the court’s conservatives, asked John Bursch, who was defending Michigan’s same-sex marriage ban, whether the law discriminates against people based on their gender.

“Counsel, I’m not sure it’s necessary to get into sexual orientation to resolve the case,” Roberts said. “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?”

Bursch responded that he believed the government can legally draw lines based on sex if it’s related to biology, such as the ability to procreate. But Justice Ruth Bader Ginsburg disagreed with his interpretation, interrupting his rebuttal.

The argument quickly moved on to other questions, but the point Roberts raised hung in the air, suggesting a way for the chief justice to strike down state bans on gay marriage on relatively narrow grounds, without finding a fundamental right to marriage for LGBT people.

Twenty years ago, the gay rights movement won its first legal victory in the Hawaii Supreme Court using this very same gender discrimination argument. Same-sex couples are generally denied marriage licenses based on their gender, not their sexual orientation. If a straight man wanted to marry a straight man, he would not be allowed to in a state that bans same-sex marriage. So, as Roberts points out, the reason a man is denied a marriage license to marry another man is his gender. If he were a woman, he could marry his partner.

But since the Hawaii decision — which was later rebutted by a Constitutional same-sex marriage ban — judges have gone out of their way to reject it. In 2008, the California Supreme Court explicitly said that the marriage ban discriminated against gay people — not against people for their gender. And gay marriage advocates have focused on the fact that LGBT people are a group that’s unfairly discriminated against for their sexual orientation.

An opponent of gay marriage protests outside the Supreme Court Building. The historic case could prevent states from banning gay marriage. (Photo: Jim Lo Scalzo/EPA)

“Courts recently haven’t been particularly open to the argument,” said Doug NeJaime, a law professor at the University of California at Irvine.

The argument also avoids confronting the issue of discrimination against the actual LGBT people who are affected by same-sex marriage bans.

“I can’t say it’s been a winning theory, but there’s a lot about it that’s correct,” said Mary Bonauto, the gay rights lawyer who argued on behalf of same-sex married couples Tuesday. Bonauto had mentioned gender discrimination in a reply brief to the Michigan government, but it was not a main argument in her case.

Bonauto said she’s not making too much of the fact that Roberts raised it, however.

“They’re not forecasting the outcome [with their questions],” she said.

Justice Anthony Kennedy, who usually votes with the conservatives on the court, is a much more likely fifth vote for same-sex marriage than Roberts given his record on cases dealing with gay rights.

But University of Chicago law professor Mary Anne Case — a leading proponent of the gender argument — thought Roberts’ question suggested that the lawyerly and careful justice may have found a way to support same-sex marriage without venturing into the uncharted waters of finding a fundamental right for gay people to marry.

Mary Bonauto, a lawyer for the plaintiffs, speaks to the media after arguments about gay marriage at the Supreme Court. (Photo: Joshua Roberts/Reuters)

“Sex discrimination is a simple, clean, established, ordinary, doctrinal way under ordinary law of shutting down bans on same-sex marriage, but not opening up all these kinds of messy questions about polygamy and incest and all these other more complicated and problematic forms of marriage that keep getting raised by opponents to same sex marriage,” Case said.

Thanks in large part to the work of Justice Ginsburg before she became a judge, classifications based on gender merit an intermediate level of scrutiny from the courts. Classifications based on sexual orientation, on the other hand, have been treated by the Supreme Court with a lower level of scrutiny. If the court treats same-sex marriage as a question of gender discrimination, states would have to prove that their bans are “substantially related” to some compelling interest, such as encouraging procreation within family units. That could be a difficult hurdle.

Last year, Ninth Circuit Judge Marsha Berzon revived the gender argument in a decision that struck down Idaho and Nevada’s same-sex ban as discriminatory. She joined a majority opinion that held the laws were discriminatory based on sexual orientation. But she wrote a separate concurring opinion finding that gay marriage bans constitute gender discrimination.

But aside from Berzon, the argument has fallen out of fashion.

“I think it got derailed for a number of reasons,” Case said. “I think if you’re an advocate for gays and lesbians, you understandably want to focus on the harm to people on the basis of their sexual orientation.”

Case draws an analogy to the gradual erosion, over the course of a century, of “coverture” laws that said married women could not enter into contracts or own property — that their identities were subsumed into their marriages. It took a long time for male judges to recognize that this form of “traditional” marriage meant the subordination of a whole class of people, namely women.

An American flag and a rainbow flag fly in front of the Supreme Court. (Photo: Andrew Harnik/AP)

“We heard at the oral argument about ‘millennia, millennia, millennia,’” Case said, quoting conservative justices worried about changing an age-old institution to include same-sex couples. “But throughout all those millennia, marriage has been defined as female subordination to male heads of households.”

That definition has changed, thanks to judges closely examining classifications based on gender and gender stereotypes and eventually rejecting them. The idea that men have to marry women and women have to marry men might be the next such stereotype that bites the dust.