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Why the sex discrimination argument failed in California

By Jack M. Balkin

It remains puzzling why the California Supreme Court, in its recent same-sex marriage decision, rejected the most formally powerful argument for its result: the argument that denying licenses to same-sex couples is sex discrimination. The weakness is made clear in this recent column by Steve Chapman, who writes: ?while the California Constitution forbids discrimination on the basis of ?sex, race, creed, color, or national or ethnic origin,? it does not forbid discrimination on the basis of sexual orientation. The justices somehow found something in the document that the authors thought they omitted.? As I?ve explained earlier, the Court had to work very hard to reject the sex discrimination argument, using tired old arguments that had been used long ago to defend miscegenation laws: since both blacks and whites [both men and women] are equally burdened, there?s no discrimination.

Why did the court reject the cleaner, more theoretically elegant argument in favor of the more convoluted one that the law discriminated on the basis of sexual orientation (which it didn?t; no clerk ever asked applicants their sexual orientation, while they did need to know whether each applicant was male or female)? It insisted that calling the relevant discrimination sexual orientation discrimination was more ?accurate? and ?realistic.? Why did it do that?

Here?s what the court wrote:

?a statute or policy that treats men and women equally but that accords differential treatment either to a couple based upon whether it consists of persons of the same sex rather than opposite sexes, or to an individual based upon whether he or she generally is sexually attracted to persons of the same gender rather than the opposite gender, is more accurately characterized as involving differential treatment on the basis of sexual orientation rather than an instance of sex discrimination, and properly should be analyzed on the former ground. . . . [I]n realistic terms, a statute or policy that treats same-sex couples differently from opposite-sex couples, or that treats individuals who are sexually attracted to persons of the same gender differently from individuals who are sexually attracted to persons of the opposite gender, does not treat an individual man or an individual woman differently because of his or her gender but rather accords differential treatment because of the individual's sexual orientation.?

In the interracial marriage context, this argument would have sounded very strange. Suppose the Supreme Court, when it struck down laws against interracial marriage in 1967, had adopted this kind of reasoning. Instead of holding that the prohibition was race discrimination, the court would have focused on the group specifically burdened by the law, people who were in interracial couples. Call them ?miscegenosexuals.? Now you can see what the reasoning of the California court would look like in this context:

?a statute or policy that treats blacks and whites equally but that accords differential treatment either to a couple based upon whether it consists of persons of different races rather than the same race is more accurately characterized as involving differential treatment on the basis of being a miscegenosexual rather than an instance of race discrimination, and properly should be analyzed on the former ground. . . . [I]n realistic terms, a statute or policy that treats different-race couples differently from same-race couples does not treat an individual man or an individual woman differently because of his or her race but rather accords differential treatment because of the individual's miscegenosexuality.?

The argument would not even have been a bad argument. Certainly members of interracial couples have been subjected to vile and unjust treatment throughout American history. They were prime candidates for judicial protection. But a decision written this way would still have been missing something important.

The difference between the two cases, and the reason the hypothetical is so bizarre, is that everyone understands that the miscegenation prohibition is all about maintaining the structure of racism, so that the idea of a ?miscegenosexual? never even occurs to anyone, and indeed strikes most people as weird and racist. I don?t understand the resistance to the idea that the homosexuality taboo is about sexism. Homosexuality and deviation from gender norms (which, of course, are relentlessly hierarchical) are so tightly connected with each other in popular culture that each is normally and easily taken as a marker for the other. A ?faggot? or a ?dyke? is a person who fails to conform to normal gender norms; the term is routinely applied to people without regard to their sexual behavior.

The court?s reluctance is, I think, evidence that Jack Balkin is right about the dependence of the law on the wider culture in order to determine the crucial question of which arguments are within or outside the bounds of legitimate argumentation. The sex discrimination argument is unfamiliar to people. A few of us have made it in academic journals, but it hasn?t been trumpeted much in the popular culture, and so judges, who one might have expected to be influenced primarily by the soundness of legal argumentation as such, shy away from it. It?s not enough to craft good arguments. You need to be out there, working the media and making these claims repeatedly, thereby making them familiar.

In the end, it may not matter, except for a few law geeks who care about the details of legal argumentation, whether the court uses the best arguments or not. The argument the Court did use, that discrimination against gays is inherently suspect, is good enough. Almost no one reads judicial opinions anyway. If the taboo in question really functions to reinforce sexism, then relaxing the taboo will weaken at least the existing forms of sexism whether courts realize it or not. If the Supreme Court had referred to ?miscegenosexuals? in its reasoning in 1967, the taboo on interracial marriage would still have been fatally weakened. On the other hand, today the opinion would look a little silly, and we?d think that it had missed the most important point. That?s not the worst thing in the world, but it?s not a flattering reflection on the court.

Full post as published by Balkinization on May 23, 2008 (boomark / email).