Many supporters of gay rights, including President Obama, believe that sexual orientation should be treated as a "suspect classification" -- that is, when a government policy makes classifications on the basis of sexual orientation, courts should view those policies with suspicion. The problem for the Supreme Court, and especially Justice Anthony Kennedy, is how much suspicion.
Classifications based on race demand strict scrutiny from the courts (a very high threshold), while classifications based on gender trigger intermediate scrutiny. Courts are instructed to allow all other types of group classifications if they have a rational basis (a very low bar to meet).
Justice Kennedy has written two landmark opinions in favor of gay rights in past cases, but it is not entirely clear how the logic of those opinions fits into this system of civil rights law I just described. Buried in the oral argument transcript of the Proposition 8 case is a potentially key revelation of how Justice Kennedy might be thinking now:
Justice Kennedy: Do you believe this can be treated as a gender-based classification?
Mr. Cooper: Your Honor, I--
Justice Kennedy: It's a difficult question that I've been trying to wrestle with it.
Mr. Cooper: Yes, Your Honor. And we do not. We do not think it is properly viewed as a gender-based classification. Virtually every appellate court, state and federal, with one exception, Hawaii, in a superseded the opinion, has agreed that it is not a gender-based classification, but I guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term. And so in the same way that fatherhood is gendered or motherhood is gendered, it's gendered in that sense.
What Justice Kennedy is saying here is this: Don't think of it as "gay marriage" but as "same-sex marriage." Discrimination on the basis of sexual orientation isn't the problem; gender discrimination is.
Wait, what? Aren't gender discrimination prohibitions designed to protect women in the workplace and the classroom? Well, yes and no. Just as the Supreme Court has ruled that some forms of affirmative action constitute racial discrimination against whites, protections against gender discrimination have been extended to men.
If you think this is a ridiculous notion of constitutional law, you will be even more surprised to learn who first advocated for gender discrimination protections to be extended to men. It was a young ACLU attorney named Ruth Bader Ginsburg. Yes, that Ruther Bader Ginsburg, and you'd better believe she was dancing underneath her robes when she heard Justice Kennedy muse about gender discrimination.
Most pundits believe Justice Kennedy wants to take a cautious approach that does not push the country too far in any direction. Slate's Sonja West outlines some of the advantages of this legal framework:
A gender-discrimination ruling on marriage would not, for example, determine how much constitutional protection a person might receive if he was fired from his job because of his sexual orientation. Kennedy could save that case for another day. It also does not give fodder to the slippery-slope argument about polygamy, which presents a problem of numbers and not gender.
Another advantage, at least perhaps in Kennedy's worldview, is that his opinion need not hinge on a constitutional right to privacy. Kennedy could side-step any icky feelings he might get from wading into privacy rights, which tend to include family-based freedoms like the right of procreation, child rearing, contraception, and abortion.
A gender discrimination approach also closely links the case for same-sex marriage to the case for interracial marriage. When Mildred Jeter married Richard Loving in 1958, a Virginia trial court judge sentenced them to a year in prison. The judge justified the state's law banning interracial marriage in part by stating, "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. ... The fact that he separated the races shows that he did not intend for the races to mix."
In one of the best-named cases in history, Loving v. Virginia, the U.S. Supreme Court held, "Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State." One could easily imagine this Supreme Court switching a couple of words in that sentence.
The game "What Will Justice Kennedy Do?" is such fun for Washington insiders and academics alike because the answer is almost never clear. However, I think there is a decent chance that gender discrimination may provide the solution for which he is searching.