The Supreme Court on Tuesday heard oral arguments in Obergfell v. Hodges, which presents the Court with an opportunity to strike down state bans on same-sex marriage once and for all. Most observers seem to think that the court will take the opportunity. The four liberal judges are taken as a given, and both Justice Kennedy and Justice Roberts arguably have obtainable votes. Kennedy, who has repeatedly departed from his conservative colleagues on gay rights issues, seemed to think that the recognition of marriage afforded a kind of dignity to a relationship, and that there wasn’t any good reason why gay couples should be denied that dignity. Chief Justice Roberts, as Andrew Koppleman points out, seemed to be considering a very easy way out: bans on same-sex marriage are sex discrimination.
The sex discrimination argument isn’t immediately apparent, but once you see it, it makes pretty good sense. Mary wants to marry Joe. So does Bob. Mary can, and Bob can’t. The only reason Bob can’t marry Joe is his sex. It’s clear, it’s tidy, and it doesn’t require anything legally novel, like declaring that being gay (or otherwise gender non-conforming) makes one a member of a “suspect class” (something like race, where members of the class have been historically the objects of “invidious discrimination;” legislation affecting them as a class is then guaranteed a higher level of judicial scrutiny). If same-sex marriage bans discriminate on the basis of sex, then they have to survive judicial strict scrutiny, and that seems pretty unlikely. For one thing, it’s not at all clear what compelling governmental interest is served by restricting marriage only to heterosexual couples. The states in question were putting their eggs in the basket that marriage is for the sake of having and raising (one’s own biological) children. As William Saletan points out, that argument makes sense in a vacuum, but if it’s true, then states ought to ban marriage by the old or the infertile. Attorneys defending the ban apparently had one of those bad-days-at-work, repeatedly falling into incoherence.
So let’s assume for a moment that the Court rules in favor of marriage equality. What’s been talked about a lot less in this context is what happens next. As we were all reminded in the uproar about Indiana’s attempt at an (anti-gay) Religious Freedom Restoration Act, most states don’t protect LGBTQ individuals from discrimination. NPR had a story with a nice infographic Tuesday pointing this out: if SCOTUS rules in favor of marriage equality, it will be possible to marry a same-sex partner anywhere, but in a lot of states you can then lose your job if your boss reads the wedding announcement in the local paper. This leads to two points.
First, it seems to me that it therefore matters what SCOTUS comes up with in its (hypothetical) ruling in favor of marriage equality. If the argument is based in dignity interests, then there’s perhaps something for those arguing in favor of full equality to hang their hats on, since it’s not too hard to imagine an argument to the effect that being fired for marrying a same-sex partner is either itself a serious affront to dignity, or undermines the dignity interests that marriage supposedly protects. A dignity ruling would also accord with Kennedy’s reasoning in the Lawrence v. Texas (2003), which struck down sodomy laws and spoke in terms of protecting intimate relationships. These sorts of reasons would also provide a potential basis for protecting trans* and other gender non-conforming individuals.
Such arguments might or might not be very good, or get anywhere with the Court, but they seem better than the options available following a sex-discrimination-based ruling, since the sex-discrimination argument won’t work to protect LGBTQ individuals at work: if Sue gets fired for being in a relationship with another woman, she’s not fired because she is a woman. At that point, the clarity of the sex-discrimination rationale works against efforts to expand equality into the workplace and elsewhere.
The other point to consider is about the power of the Courts. Scholars have wondered for a while if Brown v. Board didn’t jump too far ahead of social norms, both fueling a backlash against school integration and confusing goals and tactics. Derrick Bell, for example, in reflecting critically on his own participation in school desegregation litigation, suggests:
“The danger with our commitment to the principle of racial equality is that it leads us to confuse tactics with principles. The principle of gaining equal educational opportunity for black children was and is right. But our difficulties came when we viewed racial balance and busing as the only means of achieving that goal. At a much earlier point than we did, we should have recognized that our tactic was making it harder rather than easier to reach our goal” (Silent Covenants, 189).
Bell draws on Gerald Rosenberg’s Hollow Hope (1991), which makes the broader claim that reform movements ultimately should spend their time in advocating for legislative change and avoid the courts. The second edition (2008) even suggests that marriage equality litigation hindered the quest for marriage equality: the public was probably willing to support domestic partner initiatives, but not full marriage equality. Advocating for marriage equality then failed in courts and led to a legislative backlash (p. 427). It seems fairly clear that social norms, on the whole, have caught up with marriage equality. That said, efforts at LGBTQ equality can fail even where one might expect them to succeed: just in March, the city of Charlotte’s non-discrimination ordinance narrowly failed because of the very disturbing number of people who very loudly protested trans* accessible toilets; when that language was removed, the ordinance then lost the support not just of conservatives (who were never going to vote for it) but of liberals who wanted the stronger protections. And that’s a progressive city. For a variety of reasons (gerrymandering, overparticipation of activists in primaries, overrepresentation of rural areas, etc.), legislatures at both state and federal levels are very, very conservative, far to the right of anything like median social norms. The Chief Justice of the Alabama Supreme Court has already tried to obstruct federally-ordered marriage equality. To Rosenberg and Bell, then, we can add the observation that the political process produces legislatures (this was also true for Rosenberg’s example of school desegregation and abortion; Justice Ginsburg has expressed similar concerns about Roe v. Wade) far to the right of median social norms, and these legislatures can be expected to lead a backlash. In other words, we can expect a lot more legislation like Indiana’s, and a lot more work before we have true LGBTQ non-discrimination written into the law.
UPDATE: On the question of whether sex discrimination makes legal sense (see comments 1 and 2, below), see also this post by Ilya Somin (Koppelman's co-author), especially part II.