Marriage Equality, Sex Discrimination, and the Future of LGBT Rights

05/04/2015 12:14 pm ET | Updated May 04, 2016

I'm not sure it's necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?

So asked John Roberts, Chief Justice of the United States Supreme Court, on Tuesday, April 28, during oral arguments in the landmark Obergefell v. Hodges marriage-equality case.

His question was an afterthought, late in the first round of oral arguments, with the justices questioning the Michigan attorney, John Bursch, he of the baby face and bow tie who had already argued before this court eight times and was now arguing to limit marriage to "one man, one woman."

The country's focus has steadfastly been on Justice Anthony Kennedy, the author of all the pro-gay decisions since Romer v. Evans in 1996, and still the swing vote in most observers' eyes. Kennedy is believed to be willing, once again, to decide on the basis of "fundamental liberty," an argument he made so eloquently in the previous opinions, in spite of his concern last week about overturning "millennia" of traditional marriage. However, because of the chief justice's question in this case and his reticence to engage on fundamental principles in the Windsor and Perry decisions of 2013, the question has now arisen as to whether or not he is searching for a way to be on the right side of history but with a different rationale. That would allow him to write a concurring opinion in a 6-3 vote while ceding pride of place once again to Justice Kennedy, as a capstone to his career as Supreme Court champion of gay rights.

All along the focus for those pushing for marriage equality has been on the fundamental right to marry. As we've discovered over the past 10 years, the right to marry may be followed during the honeymoon by being fired for being gay. Such an opinion by Chief Justice Roberts, however, would not only strengthen the overall decision but put into the Supreme Court's toolbox the importance of viewing sexual orientation as a form of sex, and discrimination against someone on the basis of her sexual orientation as simple sex discrimination. This would help bring "heightened scrutiny" into consideration in future gay-rights cases; while not binding on the courts, it would open the door to the proliferation of such arguments in the future and become even more persuasive.

It would also support the belief I've held for years now that the trans community, should a transgender discrimination case ever make it to the Supreme Court level, would be protected in a similar manner. Considering the EEOC's Macy decision of 2012 and the parade of positive decisions based on Macy, such as the recent Lusardi case, plus the now full-throated support of not only the EEOC but the Departments of Justice and Labor in support of comprehensive trans rights, that outcome becomes much more likely. Change doesn't occur in society in the manner of "quantum jumps," from zero to one instantaneously. It proceeds at times boldly and other times timidly, beginning with a plausible argument in a dissent, which then appears in a concurrence before years later becoming the majority opinion. The "tipping point" is just that; we so quickly forget all the messy efforts over many years in many places that were necessary to build up a consensus to reach that tipping point. And those efforts are not only legal but legislative and cultural as well.

As an example, I believe that Bruce Jenner's public coming out as trans two weeks ago was just such a tipping point. While we in the community celebrated Laverne Cox appearing on the cover of Time magazine one year ago, we should recognize that few read Time in 2015, and even fewer watch the Netflix series Orange Is the New Black, in which Cox co-stars. But everyone in the post-war generation knows Jenner, just as everyone knew Rock Hudson when he died of AIDS in 1986, and Magic Johnson when he announced he was HIV-positive in 1991. How else to explain the stunning statement by perennial Republican presidential candidate Rick Santorum:

If he says he's a woman, then he's a woman. My responsibility as a human being is to love and accept everybody, not to criticize people for who they are.

That's not what you'd expect from one of the most homophobic senators in American history. Whether it's the start of a trend or an outlier, only time will tell. But for the chief justice, his willingness to broach the question of sexual orientation being reducible to a question of sex is the result of over 40 years of state and federal court cases and societal change. The Kentucky plaintiffs made such a claim in this case, 20 years after the Hawai'i Supreme Court considered same-sex marriage based on the premise of sex discrimination, and the Hawai'i court noted that the earliest cases, as much as another 20 years earlier, had done the same.

This is so very obvious once you leave the rarefied environs of the high courts of the land. Are there any Americans without law degrees who don't think being transgender or gay is fundamentally a matter of sex? Outside some antediluvian psychiatrists, I haven't found any. Those psychiatrists had to categorize being gay and trans as mental illnesses in order to shut down the argument; it is so obvious to everyone else, including those conservative extremists who fear trans rights functioning as a shield for male sexual predators. When fundamentalist parents speak of the fear of having their children changing in a room with trans women, it's clearly from fear of having to explain sexual variation to their children. They're not thinking of fundamental liberties or the 14th Amendment. Their call for privacy is for protection from having to deal with matters of sex.

The social rejection of homosexuality and its grounding in sex is made clear in the amicus brief of Clark, Koppelman, et al. The misogyny underlying the rejection is described thusly:

To the extent that laws banning same-sex marriage are motivated by rejection of homosexuality, that purpose is also often closely tied to sex discrimination and the subordination of women. This connection is a matter "not so much for judicial notice as for the background knowledge of educated men who live in the world." [Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421, 426 (1960)]. Indeed, homosexuality is itself defined by reference to gender. Merriam-Webster's Collegiate Dictionary 556 (10th ed. 1994) (defining homosexual as "of, relating to, or characterized by a tendency to direct sexual desire toward another of the same sex" and "of, relating to, or involving sexual intercourse between persons of the same sex" [emphases added]). The link between prejudice against gays and lesbians and sexism is common knowledge, if anything is. At least until recently, most Americans learned no later than high school that one of the nastier social sanctions that one will suffer if one deviates from the behavior traditionally deemed appropriate to one's sex is the imputation of homosexuality. It is an obvious cultural fact that the stigmatization of homosexuality is closely linked to gays' and lesbians' supposed deviation from the roles traditionally deemed appropriate to persons of their sex. While not all hostility to homosexuality can be attributed to prejudice against perceived gender-nonconformity, such motives are often a major factor. See, e.g., W. Christopher Skidmore, et al., "Gender Nonconformity and Psychological Distress in Lesbians and Gay Men," 35 Archives Sexual Behav. 685, 686-87 (2006) (noting evidence that prejudice against gays and lesbians is often linked to hostility towards gender nonconformity, and finding that lesbians and gay men who exhibit more such nonconformity are subject to greater stigma than those who exhibit it less).

Moreover, the stigmatization of both lesbians and gay men often takes gender-specific forms that imply that men ought to dominate women. While gay men are stigmatized as "effeminate," i.e., insufficiently aggressive and dominant, lesbians are stigmatized as too aggressive and dominant, and are thereby seen as guilty of a kind of gender insubordination. The two stigmas -- sex inappropriateness and homosexuality -- are often virtually interchangeable. Each is readily used as a metaphor for the other. Much of the resistance to same-sex marriage is likewise parasitic on a gendered conception of marriage in which men and women have distinct and complementary roles, with male dominance a part of the model.

The chief justice seems to have read Koppelman and others who have made the same case, going back to Suzanne Pharr in 1988, and it will be a very positive change to the legal environment should he rule in favor of marriage equality based on sex. And if four other justices would concur, it would be a huge advance, the beginning of the end of the fight for full LGBT civil rights.