Caitlyn and the Court -- Why Not All Couples Are Same-Sex or Opposite-Sex

06/16/2015 02:45 pm ET | Updated Jun 14, 2016

There are 50 states where I could marry Caitlyn Jenner.  But only 37 states where I could marry Bruce.

That's because, right now, 13 states prohibit same-sex marriage.  (Of course I don't know whether Caitlyn Jenner is legally male or female -- it depends on whether she has filed a "gender change petition" in state court.)

But why should marriageability depend on gender in the first place?

The marriage cases before the Supreme Court this spring are, ostensibly, about the right of male-male or female-female couples to marry.  One case will determine whether there is a constitutional right to marry a person of the same sex.  The second case -- which should be moot if the answer to the first question is yes -- will determine whether states that don't perform same-sex marriages must recognize such marriages from other states.

The briefs are full of references to "same-sex" and "opposite-sex" couples.

But aren't the cases really about the right of any two people to marry, whether M-F, M-M, F-F, or something else entirely? Not every couple, in fact, is "same-sex" or "opposite-sex."

By transitioning from male to female, Caitlyn Jenner suggested -- with as much fanfare as possible -- that gender is "one or the other": You're either all boy or all girl. But in fact gender is a a continuum, and there are people who see themselves as neither male nor female. More and more of them are coming out as gender queer, with even Facebook now allowing "custom" gender designations.

But how would someone who's neither male nor female fit into a system that privileges only same- or opposite-sex couples?

The fundamental right to marry belongs to every person. To honor that promise, the Court needs to take gender out of the marriage equation entirely.  It could, and should, announce that marriage is available to any two unrelated adults.

Words matter, especially words coming from the Supreme Court. And so the justices should choose their language carefully, avoid unnecessarily restrictive words like "same" and "opposite." An "any two unrelated adults" formulation would include couples whose genders don't fit either rubric.

That may sound like more progress than we can expect from the nine justices. But in fact the law of the land has been changing faster than any marriage-equality advocate could have predicted.
How fast? When the love of my life -- in reality neither Bruce nor Caitlyn but Chuck -- and I decided to get married, in 2006, we had to drive to Canada  to seal the deal.  At the time, only one state -- Massachusetts -- allowed same-sex marriages and, unlike Canada, it had a residency requirement. The trip from Brooklyn to Montreal was no hardship.  It was fun being married in a Francophone city, and we spent our (one-night) honeymoon in the Ice Hotel in Quebec.  

Yes, we shivered.  But we didn't really feel out in the cold until we got back to New York, where our marriage wasn't recognized.  There, in our home state, we weren't husband and husband, but (legally at least) mere roommates.  That didn't change until 2008, when Governor Paterson ordered state agencies to recognize same-sex marriages performed outside the state. (In 2011, the New York legislature voted to allow same-sex marriages in-state.)

Since then progress has been rapid -- same-sex unions are now recognized in 37 states.
One reason for the change is the wider acceptance of the notion that sexual orientation discrimination is gender discrimination.  If I were a woman -- or if Chuck were a woman -- we would be as married in Alabama as we are in New York. But since I'm a man and my spouse is a man, Alabama considers us unwed.

Allowing gender to dictate who you can marry is gender discrimination, plain and simple. And Americans get that.

But the court is still thinking about gender as binary, which is another, subtler form of discrimination. In the Edie Windsor case, the court overturned the federal Defense of Marriage Act because it privileged opposite-sex over same-sex marriages. It's remarkable that the court went that far. But it should go farther: by excising a few unnecessary words from its opinion, it can extend a fundamental right to people whose gender isn't either/or, but neither/nor.