More recognition for the importance of the sex discrimination analysis in Perry

By Nan Hunter-

Judge Walker's analysis of the sex discrimination issue in his decision in Perry is getting more attention, as it should. Although not the focus of the evidence presented at trial, the sex discrimination question was prominent at oral argument for a good reason: the constitutional standard for testing a law that discriminates based on sex is tougher than what any federal court has ever applied to sexual orientation discrimination. So the plaintiffs' lawyers argued that banning gay marriage enacted a distinction based on the sex of one's partner, and the defendants argued that because marriage is all and only about procreation, the sex differential is not bad, but essential.
The significance of the link between gender, marriage and sexuality, however, runs much deeper than that. Here's what Judge Walker wrote:

The evidence did not show any historical purpose for excluding same-sex couples from marriage...Rather the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed...
Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines... Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.
Gender no longer forms an essential part of marriage; marriage under law is a union of equals....

Sexual orientation discrimination can take the form of sex discrimination. ...The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation....Sexual orientation discrimination is thus a phenomenon distinct from, but related to, sex discrimination.

In my view, this was the most creative part of his analysis. Linda Greenhouse at the NY Times agreed:

Of the many smart moves Judge Walker made in his 136-page opinion last week, the smartest was his unveiling of a central hiding-in-plain-sight fact: the change in society’s expectations about what partnership in a marriage entails...

There is much more to Judge Walker’s analysis, but it seems to me that this revelation is the heart of it: that while we have been fussing about same-sex marriage, marriage itself has undergone profound change as the result of forces completely independent of federal judges...
If Judge Walker’s opinion survives on appeal in its full sweep, I think it will be on this basis...

BU Law Professor Linda McClain pointed out that another important aspect of the analysis was its highlighting of the irrelevance of gender to parenting.
Going a step further, Loyola Law Professor Doug Nejaime highlights the channeling function that the ban on gay marriage serves and offers an explanation for why the question got a more extensive examination in Perry:

Marriage equality advocates have pointed out the connection between marriage restrictions and gender roles in earlier litigations. But state courts considering same-sex couples' right to marry have consistently rejected or neglected the way in which marriage restrictions rely on and perpetuate sex stereotypes that subordinate women. While disappointing, this hardly seems surprising; state officials defending the restrictions increasingly refuse to explicitly rely on gender norms, and arguments about sex stereotypes are often buried in amicus briefs.
But Proposition 8 proponents' direct role in the Perry litigation forced Judge Walker to fully consider the sex-based implications of Proposition 8. Arguments based on sex stereotypes now constituted part of the principal case put forward by the proposition's defenders. And where Proposition 8 supporters saw legitimate justifications for the amendment, Judge Walker saw impermissible sex stereotypes, concluding that "Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage."
For all the confusion introduced by Proposition 8 proponents' role in the litigation, their presence has made one thing crystal clear: Laws that prohibit marriage for same-sex couples constitute just one part of a broader normative framework of the family that harms individuals based on both sex and sexual orientation.

I agree with Doug that Perry unmasked the kind of heteronormative "marriage culture" that is at base what the conservative true believers want.  Unfortunately for them, it's no longer what most Americans want. And that is a huge part of the reason why public opinion is shifting about gay marriage.


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