More Than Marriage: Obergefell v. Hodges Is About Women’s Rights, Too

From Wall of Separation:

At today’s U.S. Supreme Court marriage-equality arguments, the focus will be on whether the states’ marriage bans impermissibly discriminate on the basis of sexual orientation. But the marriage cases also involve old-fashioned discrimination on the basis of sex. In states without marriage equality, men can marry only women, and women can marry only men. These arguments have not received as much discussion in the cases so far, but they will be before the high court all the same. And they were discussed thoroughly by Judge Marsha Berzon in a concurring opinion in the Ninth Circuit marriage case, Latta v. Otter.

So it’s worth examining the arguments about sex-discrimination, and the broader question of how yoking marriage to traditional gender stereotypes advances the Religious Right’s social goals.

At the outset, the states deny that they are engaging in sex discrimination at all. There is no discrimination, say the states, because the law applies equally to both sexes: both men and women are prohibited from marrying a person of the same-sex, so both sexes are treated equally.

There is a superficial appeal to this argument, but it is not the law. If the states were right, then the government could ban interracial marriage, because the ban applies to all races. Or the government could ban Jews from marrying Christians and vice/versa. Or the states could ban a man from starting a business (or seeing a movie, or riding in a car) with another man and a woman from starting a business (or seeing a movie, or riding in a car) with another women. And so on and so on. Existing precedent and common sense both point in the same direction: A law that restricts marital choice based on the sex of the spouse is, in fact, sex discrimination.

Because the laws classify people according to their sex, the court must apply “heightened scrutiny.” Under existing Equal Protection doctrine, the government can discriminate on the basis of sex only if it has a really good reason—“an exceedingly persuasive justification,” as the Supreme Court wrote in the landmark case of United States v. Virginia. So: are the justifications for same-sex marriage bans persuasive, let alone exceedingly so?

They are not. For one, the states rely on an increasingly comical argument that the only goal of marriage is to promote procreation, and only a man and a woman can procreate together. The ban isn’t related to sex, say the states, but rather to “biological complementarity.” In detailing this argument, the states seem to imagine a population crisis worthy of a P.D. James novel; Kentucky actually suggests that same-sex marriage imperils “the continuation of civilization.”

But the states’ argument doesn’t work—even if we actually do face the prospect of mass extinction—for an obvious reason: Not all married people can or do have biological children. The state allows people to marry (and stay married) even if they use birth control, prefer to adopt, are too old to conceive, or just hate children. Even married couples that want to have biological children can’t always do so, as millions of Americans of child-bearing age are interfile. Many married couples choose to procreate, but many don’t; marriage also carries benefits like love, emotional support, companionship, a public declaration of commitment and more.

The states also argue that children turn out better when they are raised by both a man and a woman. As Michigan puts it, “Men and women are different, and having both a man and a woman as part of the parenting team could reasonably be thought to be a good idea.” But the suggestion that opposite-sex parents are superior to same-sex parents has been debunked by many, many expert organizations—including the American Psychological Association, American Psychiatric Association, American Academy of Pediatrics, American Association for Marriage and Family Therapy, National Association of Social Workers, American Psychoanalytic Association, American Academy of Family Physicians and American Medical Association (to name a few). The state, it would seem, has no stronger interest in banning same-sex marriages than it would in banning same-race, same-ethnicity, or same-religion ones.

What’s left, then, is old-fashioned gender stereotypes—the same stereotypes that lead people to believe that men should focus on earning money and women should focus on bearing and raising children. As Judge Berzon explained in Latta v. Otter, it used to be that “married women had no right to own property, enter into contracts, retain wages, make decisions about children, or pursue rape allegations against their husbands.” Times have changed, stereotypes are (gradually) fading and same-sex marriage further erodes these traditional gender roles. That’s a good thing.

Attempts to preserve traditional gender roles and prioritize procreation above all else should sound familiar, however. They are part of the Religious Right’s legal and policy agenda, which also includes limiting access to contraception and reproductive care. Alliance Defending Freedom has gone so far as to argue that in expanding access to contraception for women, the Obama administration "desires to impose its own anti-life and anti-fertility image on every citizen and organization in the nation.”

It’s no surprise, then, that the Religious Right wants to maintain “traditional marriage” yoked to old-fashioned gender roles. But the Equal Protection Clause prohibits states from helping them do so.

From Americans United's Wall of Separation blog.