This Article highlights both the rewards in accepting and the risks in rejecting a claim of sex discrimination as one constitutional basis for invalidating restrictions on marriage for same-sex couples. It argues that recognition of same-sex marriage and elimination of enforced sex roles are as inextricably intertwined as the duck is with the rabbit in the famous optical illusion. As the Article demonstrates, this has long been clear to opponents, from the pope to David Blankenhorn, but needs to become as clear to proponents and to judges deciding same-sex marriage cases if we are to preserve and extend the liberty and equality of all regardless of sex or orientation.
The Article begins by suggesting some advantages of thin over thick definitions of both sex and marriage in law. Through a review, first of landmark U.S. Supreme Court sex discrimination cases concerning the law of marriage and then of state constitutional same-sex marriage litigation from the 1970s to the present, it goes on to demonstrate, on the bright side, that opening marriage to same-sex couples would eliminate the last vestige of sex stereotyping from the law of marriage and complete the law’s evolution away from legally enforced sex-role differentiated inegalitarian marriage, with a resulting benefit to persons of all orientations. On the dark side, however, it also demonstrates that to insist, as some state judges have done, that denial of marriage licenses to same-sex couples does not discriminate on the basis of sex because neither the class of women nor the class of men is singled out for disadvantageous treatment is a repudiation, not only of the entire body of U.S. Supreme Court sex discrimination law of the last forty years, but of more general fundamental principles of U.S. equal protection law established for a century. Even more ominously, some state judges have justified the exclusion of same-sex couples from marriage by relying on exactly the sort of “fixed notions concerning the roles and abilities of males and females” settled understandings of federal constitutional sex equality mandate they repudiate. Not only gays and lesbians, but heterosexual women from a feminist perspective are the losers when marriage is (p)reserved for heterosexual couples because of and not in spite of its traditions, traditions that include sex-role differentiation and female subordination.
The Article ends with an examination of the many opportunities Ted Olson and David Boies missed to highlight the sex discrimination argument in the trial of Perry v. Schwarzenegger and with some speculation as to why the two have so far failed to make the strong case they could have in support of the proposition that denial of marriage to same-sex couples is unconstitutional discrimination on the basis of sex.