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.