Same-sex marriage bans as gender discrimination

Latta v. Otter, Nos. 14-35420 & 14-35421 (9th Cir. Oct. 7, 2014), and Sevcik v. Sandoval, No. 12-17688 (9th Cir. Oct. 7, 2014). 

Unsurprisingly, the Ninth Circuit has struck down the same-sex marriage bans in Idaho and Nevada. The most interesting part of the decision, however, may be Judge Berzon’s concurrence, where she argues that same-sex marriage bans discriminate on the basis of sex. As she noted at oral argument, this line of reasoning hasn’t caught on in the case law. And, as she also noted, it’s puzzling that it hasn’t. 

Judge Berzon points out that same-sex marriage bans explicitly classify on the basis of sex: women may marry only men, and men may marry only women. That’s a sex-based classification that triggers heightened scrutiny of the law’s constitutionality. The states can’t get around this kind of scrutiny just because people of both sexes are equally affected by the marriage ban. It’s the sex-based classification itself that matters. 

Now, the defendants argued that there’s no sex discrimination because the classifications treat men and women “equally,” in the sense that both men and women are prohibited from marrying people of the same sex. Judge Berzon utterly destroys this argument. “That argument,” she writes, “revives the long-discredited reasoning of Pace v. Alabama, which upheld an anti-miscegenation statute on the ground that ‘[t]he punishment of each offending person, whether white or black, is the same.’”

One final point. Striking down same-sex marriage bans as sex discrimination has an added doctrinal advantage, one not mentioned by Judge Berzon: it defeats any slippery-slope arguments that invoke the (admittedly specious) specters of incest, polygamy, and so on.