Does a marriage really need sex? A critical analysis of the gender restriction on marriage.

• Author: Frankle, Randi E.

INTRODUCTION

Marriage seems like an uncomplicated institution at first blush. Many people, beginning in childhood, think that marriage is something for which they should strive as a routine part of adult life. It seems that much of a person's life, particularly in the younger years, is devoted to finding that "special someone." A problem often arises, however, when that special someone is not who society expects, such as when that person is of the same-sex, is transsexual, or the individual is intersex. (1) The topic of marriage then seems to become extremely complicated.

Opponents of same-sex marriage argue that marriage should remain limited to a union between one man and one woman. (2) This definition categorically excludes homosexuals, transsexuals, and, presumably, intersex individuals. The most common rationale for limiting marriage in this manner, however, is circular: marriage should be limited to between one man and one woman because that is the way it has always been. (3) Nevertheless, many other long-standing practices have changed to reflect changing social values. (4)

The legal limitation on the definition of marriage to the union of a man and a woman has drawn courts into the difficult business of adjudicating sexual identity, raising concerns of fairness and individual freedom. (5) For example, courts have had to determine whether a transsexual is defined by pre or post-operative sexual identity. (6) Even more problematic are situations involving intersex individuals. If a person's genitalia or chromosomes are ambiguous, binary classification into "male" or "female" is virtually impossible. (7) Indeed, an intersex individual may be precluded from legally marrying anyone because she meets the definition of neither man nor woman. (8)

Marriage is a fundamental right, (9) therefore, it is questionable that an intersex person could be constitutionally precluded from exercising that right altogether. (10) This entire group of people should not be deprived of their fundamental right to marry merely because they do not fit the definition of "male" or "female." Nevertheless, because they do not fit these definitions, there are considerable problems in determining whom they are legally able to marry. (11) The question then is, who is the "opposite sex" of an intersex person for the purposes of marriage?

Part I of this Comment discusses the constitutional protection of the right to marry, intersex conditions, and case law regarding intersex, transsexual, and same-sex marriage. Part II discusses the consequences for marriage when it is narrowly defined, not only for intersex people, homosexuals, and transsexuals, but also for heterosexuals. Part III presents the resolution reached by most courts and proposes an alternative solution. Part III also asserts that because an intersex person is a combination of both male and female characteristics, she should be able to self-designate her gender and, even if she has physical characteristics that are mostly female, (12) be able to marry either a man or a woman. Further, this Comment argues that if an intersex person can marry either a man or a woman, then a male-to-female transsexual and a genetic woman (13) must also be able to marry either a man or a woman because all are similarly situated and must be treated alike under the Equal Protection Clause of the Fourteenth Amendment.

1. BACKGROUND

   1. Constitutional Protection of Marriage

      1. The Fundamental Right of Marriage

         For over sixty years, beginning with Skinner v. Oklahoma, the United States Supreme Court has recognized that the right to marry is a "basic civil right." (14) Generally, classifying a right as a basic civil right means that the exercise of that right cannot be unreasonably burdened by the government. (15) Further, both Loving v. Virginia (16) and Zablocki v. Redhail (17) reaffirmed the Court's holding in Skinner, stating that "marriage is a fundamental right" and giving the right to marry constitutional protection. (18) Marriage is a fundamental right that everyone should be able to exercise and, at least, can exercise when in a seemingly heterosexual relationship. Problems arise, however, when a person attempts to exercise that right in an untraditional manner, that is, attempting to marry someone who is not of the "opposite sex." Nonetheless, marriage remains a fundamental right and cannot be unreasonably impinged upon. (19)

         The Supreme Court has consistently held that if a statute or classification affects a fundamental right, heightened judicial scrutiny is required. (20) In Zablocki, the Court stated that since the right to marry is of fundamental importance, a "classification that significantly interferes with the exercise of that right" requires "critical examination of the state interests advanced." (21) When a fundamental right is affected, any classification that has no bearing on the asserted state interest or that is deliberately discriminatory will not be upheld. (22)

      2. Marriage and Equal Protection

         A discussion of marriage and its categorical limitations necessarily implicates the Equal Protection Clause. (23) Equal protection jurisprudence dictates that "all persons similarly situated should be treated alike." (24) Depending on the classification at issue, courts use different levels of scrutiny: race-based classifications require strict scrutiny; (25) gender-based classifications are subject to intermediate scrutiny; (26) and all other classifications must merely pass a rational basis review. (27) In addition, a classification or restriction which burdens a fundamental right will be subject to heightened scrutiny even if the classification does not involve a suspect class, such as race or gender. (28)

         In Zablocki, the Supreme Court stated that a classification that significantly interferes with a person's ability to exercise a fundamental right "cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." (29) Classifications that burden the fundamental right to marry, particularly when applied to similarly situated persons, must be examined under this level of heightened scrutiny? (30) The state must demonstrate an important interest and the legislation must be closely tailored to serve that interest. (31) This is the standard the Supreme Court sets in Zablocki. (32) At times, courts have circumvented standards and tests that would otherwise seem to apply where homosexuality or gender nonconformity are concerned. (33) It is possible that the Court would define the right to marry as narrowly as the right to marry a person of the opposite sex, or even as the right to marry a person with opposite chromosomes, but thus far has defined the right as the right to marry. (34)

         1. A Brief Overview of Same-Sex Marriage Jurisprudence

         There have been several cases challenging the denial of marriage licenses to same-sex couples. (35) The national debate on this issue, however, was not sparked until 1993, when the Hawaii Supreme Court held that the denial of a marriage license to a same-sex couple, based on the sex of each partner, presumptively violated the state constitution's equal protection clause. (36) The court held the restriction was a classification based on sex and treated it as a suspect class for purposes of the state constitution's equal protection clause. (37) The restriction, therefore, was subject to strict scrutiny. (38) Hawaii has since passed a constitutional amendment banning same-sex marriage, (39) but the court's decision sparked a feverish debate between advocates of same-sex marriage and its opponents. (40)

         Advocates of same-sex marriage present several arguments. (41) One of the central arguments is a due process claim; marriage is a fundamental right, and same-sex couples should be able to exercise that right. (42) This argument, however, failed in the courts. (43) Courts frame the right as a "right to same-sex marriage" instead of simply the right to marry. (44) In Baehr, the court acknowledges the fundamental right to marry, but states that the right to same-sex marriage is not "implicit in the concept of ordered liberty" or "so rooted in the traditions and collective conscience of our people" that it should have constitutional protection. (45) Other arguments, grounded in gender discrimination (46) and equal protection claims, have also failed. (47) According to this argument, by allowing men to marry women, but not allowing women to marry women, unequal treatment of women as compared to men exists. (48) Opponents of same-sex marriage argue that men and women are treated equally because each can marry someone of the opposite sex. (49) Although the gender discrimination argument has failed in the courts, there are still Equal Protection issues yet to be addressed. (50)

   2. Intersex Conditions

      An intersex individual has at least one of several conditions that make determining gender problematic. By definition, an intersex individual displays physical sex characteristics that are ambiguous, that is, a combination of male and female characteristics. (51) When ambiguity is present at birth, it can perplex doctors and parents as they attempt to classify the newborn into one of only two categories, male or female. (52)

      Several conditions can cause intersexuality. Certain hormonal disorders, such as androgen insensitivity syndrome ("AIS") and 5-Alpha-Reductase Deficiency ("5-A-R D"), cause the external genitalia to be incongruent with the individual's chromosomes. (53) Intersexuality can also result from several chromosomal conditions. For example, an individual may have an unusual number of sex chromosomes, either more than two or only one. (54) A person born with visible, physical ambiguity is also considered intersex on the basis of that ambiguity. (55) In addition, most individuals affected by an intersex condition are infertile. (56)

      1. Hormonal Disorders

         An individual with...