Re-orienting the sex discrimination argument for gay rights after Lawrence v. Texas.

• Author: Williams, Jeffrey A.

"Heightened equal protection scrutiny is appropriate for laws like Section 21.06 that use a sexual-orientation-based classification. It is also appropriate where, as here, the law employs a gender-based classification to discriminate against gay people." (1)

This claim of sex discrimination in the petitioners' brief in Lawrence v. Texas, (2) a case about criminalized homosexual sodomy, must seem quite out of place to some. (3) Respondents simply belittled its importance in their reply. (4) They chose not to address the extensive argument that the National Organization for Women (NOW) briefed defending sex discrimination. (5) They also did not consider the dissent in the Texas Court below, which similarly relied on a sex discrimination argument. (6) In fact, the sex discrimination argument in Lawrence was far more than a footnote. But the respondents devoted their attention to sexual orientation claims instead. (7) The Supreme Court did, too. (8)

Sex discrimination claims for homosexuals have surfaced again in the arena of same-sex marriage challenges. In Massachusetts, the Supreme Judicial Court rejected the treatment of homosexuals as second-class citizens but recognized at least a terminological difficulty. (9) In San Francisco, Mayor Newsom has very clearly relied on a sex equality claim. (10) Only recently, the New York courts have also entered the same-sex marriage debate, with an opinion by Judge Doris Ling-Cohan that affirmed marital rights for same-sex couples without relying on the sex discrimination argument. (11) The legal relationship between sex discrimination and sexual orientation discrimination arguments is currently unclear because the courts have been reluctant to protect homosexuals under any legal theory. As that reluctance passes, however, the need to examine this relationship has become pressing.

This Article argues that a sex discrimination argument for gay rights under the Equal Protection Clause is incompatible with the developing jurisprudence of sexual orientation discrimination and should be reformulated as a postmodern argument for how various biases can and do intersect. Part I examines the sex discrimination and sexual orientation discrimination arguments individually. Part H explores a deep and persistent incompatibility between these arguments. Part III then resolves this conflict by pursuing an intersectional approach to the Equal Protection Clause.

1. TWO EQUAL PROTECTION ARGUMENTS FOR GAY RIGHTS ARE EACH PERSUASIVE

   Both sex discrimination arguments and sexual orientation discrimination arguments are persuasive under the current Equal Protection jurisprudence. The Supreme Court has distinguished three standards of review for Equal Protection cases: a lenient rational review, a nearly fatal strict scrutiny, and a sensitive intermediate level of review. These "tiers of scrutiny" vary according to the relationship of the law and the strength of the asserted state interest. Strict scrutiny requires a law be narrowly tailored towards meeting a compelling state interest. (12) Strict scrutiny is not fatal in fact, however, and both the rational and intermediate standards have been applied less deferentially by the modern Court. (13)

   Courts and commentators have devoted tremendous attention to these tiers of scrutiny. However, Justice Stevens once noted how simpler questions come first:

   In every equal protection case, we have to ask certain basic questions. What class is harmed by the legislation, and has it been subjected to a "tradition of disfavor" by our laws? What is the public purpose that is being served by the law? What is the characteristic of the disadvantaged class that justifies disparate treatment? (14) Sex discrimination and sexual orientation discrimination claims for homosexuals answer these "basic" questions in different ways. Still, the immediate results can be the same. Each claim is a persuasive theory for the legal equality of homosexuals.

   1. An Argument for Equal Protection of Homosexuals Under a Sex Discrimination Theory Is Persuasive

      In Baehr v. Lewin. the Supreme Court of Hawaii became the first court to embrace the sex discrimination argument in addressing same-sex marriage. (15) The sex discrimination argument grew within a legal climate hostile to Due Process and Equal Protection claims for homosexuals. The argument represented an opportunity to "break this impasse" with a "third path." (16) Less severe than strict scrutiny, sex discrimination's intermediate scrutiny would still invalidate more legislation against homosexuals than would rational review. For this reason, demonstrating that laws against homosexuals are a form of sex discrimination is an attractive legal argument.

      1. The Sex Discrimination Argument Is Persuasive in Arguing Both Facial Sex Classifications and Discriminatory Sexist Purpose

         The sex discrimination argument details several ways to consider laws against homosexuals as a form of sex discrimination. One prong maintains that laws against homosexuals contain facial sex-based classifications. For example:

         If a business fires Ricky, or if the state prosecutes him, because of his sexual activities with Fred, while these actions would not be taken against Lucy if she did exactly the same things with Fred, then (assuming that Fred would be a desirable spouse for either) Ricky is being discriminated against because of his sex. (17) Professor Koppelman maintains that this constitutes discrimination "as a matter of definition." (18) Other scholars have similarly argued "explicit" sex discrimination in laws against homosexuals. (19) The Baehr Court also recognized facial sex discrimination. (20)

         The most common response to this claim argues that laws targeting homosexuality are not discriminatory by sex because they apply to both men and women equally. (21) Even if persuasive, this criticism is at least partially non-responsive because it does not deny the reliance of these laws on sex classifications. In this sense, it argues more around than against the existence of a facial sex classification. (22) Facial findings involve "judgment calls." (23) While this discretion makes a facial argument alone difficult to impress upon a skeptical court, it also makes the finding of a facial classification difficult to refute.

         The sex discrimination argument also investigates the underlying purpose of the challenged statute. It identifies unconstitutional "gender premises." (24) Professor Cass Sunstein suggests that the same-sex marriage ban "has everything to do with constitutionally unacceptable stereotypes about the appropriate roles of men and women." (25) Professor Sylvia Law argues that laws against homosexuals serve "primarily to preserve and reinforce the social meaning attached to gender." (26) Koppelman agrees that homophobia has an impact on "other traditional, restrictive attitudes about sex roles." (27) While the first prong recognizes these laws as facial discrimination, this theoretical prong condemns these regulations as discriminatory in their purpose. (28)

      2. An Analogy to Miscegenation Bolsters the Argument's Persuasiveness

         Sex discrimination advocates also emphasize an analogy to the constitutional battle over interracial intimacy or "miscegenation." Like same-sex relationships today, miscegenation was seen by some as a radical redefinition of the social order. The miscegenation cases suggest that laws regulating homosexuals are a form of sex discrimination. This analogy impressed Justice Blackmun as "almost uncanny." (29) At the least, the analogy is very thought-provoking.

         The miscegenation analogy serves concrete legal functions as well. It harkens back to the eventual rejection of the equal application defense in the miscegenation cases. (30) In 1883, the Supreme Court in Pace v. Alabama (31) upheld a statute against interracial adultery because penalties extended to "each offending person, whether white or black." (32) However, the Supreme Court rejected Pace in McLaughlin v. Florida, (33) and again in Loving v. Virginia. (34) The McLaughlin Court declared that "Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court." (35) Loving extended this repudiation to interracial marriage. (36) Critical Queer scholars urge that the rejection of mere equal application should apply to the sex discrimination argument. (37)

         The miscegenation analogy is also important because Loving denounced discriminatory purpose in especially clear terms. (38) Loving's unequivocal renunciation of discriminatory purpose did not rely on the social science research featured prominently in Brown v. Board of Education. (39) Similarly, a forceful articulation of the sex discrimination argument claims that these biases are just as overt as Loving's racial supremacy.

         Taken together, the support for a sex discrimination claim is strong. Laws against homosexuals could be seen as sexually discriminatory for using sex classifications on their face. Gender stereotypes or biases could also support the argument. Recognizing the analogy to miscegenation strengthens each argument. For all these reasons, viewing laws against homosexuals as sex discrimination gives rise to a persuasive legal theory.

   2. An Argument for Equal Protection of Homosexuals Under a Sexual Orientation Discrimination Theory Is Persuasive

      Arguments against sexual orientation discrimination are also persuasive. The Supreme Court's recent jurisprudence suggests a path around the "impasse" constructed by Bowers v. Hardwick. (40) Other contemporary cases show that sexual orientation discrimination itself can invalidate laws concerning homosexuals. Further, an examination of the basis for the protection of other suspect classes suggests that stricter scrutiny for homosexuals is appropriate.

      1. Homosexuals Are Entitled to a Rational Basis for Government Regulations

         The Court's decisions in Romer v. Evans (41) and...