Wednesday, January 21, 2015

Is marriage discrimination a form of sex discrimination?

Lawyer Ilya Somin thinks the question should be decided on the grounds of sex discrimination.

Although the sex discrimination argument has been advanced by several academic advocates of gay marriage, nonacademics tend to be skeptical because the same-sex marriage bans seem to be targeted against gays, not men or women. Hostility towards gays is certainly part of the motivation for bans on same-sex marriage. But that does not prevent these laws from qualifying as sex discrimination. In terms of the way the law is actually structured, a same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And it is perfectly possible to discriminate on the basis of sex even if the motivation for doing so is something other than sexism. 
Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because he is a man. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination. 
By contrast, sexual orientation actually has no effect on the way the law operates... 
All of this simply underscores the reality that a ban on same-sex marriage discriminates on the basis of gender rather than orientation – even if the motivation for the discrimination is hostility towards gays and lesbians. 
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It is also not true that a ban on same-sex marriage avoids qualifying as sex discrimination because it affects members of both genders. It still denies rights to both men and women solely on account of their sex. The fact that Bob cannot marry Colin solely on account of gender is not somehow “balanced” by the fact that Anne is similarly forbidden to marry Carol.  

1 comment:

Bill Ghrist said...

It seems to me that the only legitimate way you could argue that a ban on same-sex marriage is not based on gender is if you argue that same-sex marriage is an oxymoron, and therefore you are simply banning something that cannot by definition exist. But the Supreme Court has already (in shooting down DOMA) ruled that same-sex marriage is in fact a legitimate thing.

A thought on the idea that "sexual orientation has no effect on the way that the law operates"--it has not been much remarked that, strictly speaking, same-sex marriage need not apply only in the case of homosexual orientation. There are plenty of examples that one does not have to be straight in order to marry a person of the opposite sex. Likewise, one does not have to be homosexual to marry a person of the same sex. I doubt that happens much now, but as same-sex marriage becomes more commonplace, I suspect that it will. Marriage has to do with more than sex, and some people may have perfectly valid reasons for marrying even though they have no intention of having sexual relations with each other.