Opinion by Judge REINHARDT:
Both Idaho and Nevada have passed statutes and enacted constitutional amendments preventing same-sex couples from marrying and refusing to recognize same-sex marriages validly performed elsewhere.
Without the benefit of our decision in SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir.2014), reh'g en banc denied, 759 F.3d 990 (9th Cir.2014), the Sevcik district court applied rational basis review and upheld Nevada's laws. Sevcik v. Sandoval, 911 F.Supp.2d 996 (D.Nev.2012). After we decided Smith-Kline, the Latta district court concluded that heightened scrutiny applied to Idaho's laws because they discriminated based on sexual orientation, and invalidated them.
Before we reach the merits, we must address two preliminary matters: first, whether an Article III case or controversy still exists in Sevcik, since Nevada's government officials have ceased to defend their laws' constitutionality; and second, whether the Supreme Court's summary dismissal in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), is controlling precedent that precludes us from considering plaintiffs' claims.
Governor Sandoval and Clerk-Recorder Glover initially defended Nevada's laws in the district court. However, they have since withdrawn their answering briefs from consideration by this Court, in light of our decision in SmithKline, 740 F.3d at 480-81 (holding heightened scrutiny applicable). Governor Sandoval now asserts that United States v. Windsor, ___ U.S. ___, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), "signifies that discrimination against same-sex couples is unconstitutional," and that "[a]ny uncertainty regarding the interpretation of Windsor was ... dispelled" by SmithKline. As a result, we have not considered those briefs, and the Governor and Clerk-Recorder were not heard at oral argument, pursuant to Fed. R.App. P. 31(c).
The Nevada Governor and Clerk Recorder remain parties, however, and continue to enforce the laws at issue on the basis of a judgment in their favor below. As a result, we are still presented with a live case or controversy in need of resolution. Despite the fact that Nevada "largely agree[s] with the opposing party on the merits of the controversy, there is sufficient adverseness and an adequate basis for jurisdiction in the fact the [state] intend[s] to enforce the challenged law against that party." Windsor, 133 S.Ct. at 2686-87 (citation and quotation marks omitted). Although the state defendants withdrew their briefs, we are required to ascertain and rule on the merits arguments in the case, rather than ruling automatically in favor of plaintiffs-appellants. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 887 n. 7 (9th Cir.2010) ("[Defendant's] failure to file a brief does not compel a ruling in [plaintiff's] favor, given that the only sanction for failure to file an answering brief is forfeiture of oral argument.").
There remains a question of identifying the appropriate parties to the case before us — specifically, whether we should consider the arguments put forward by the Nevada intervenor, the Coalition for the Protection of Marriage. As plaintiffs consented to their intervention in the district court — at a point in the litigation before Governor Sandoval and Clerk-Recorder Glover indicated that they would no longer argue in support of the laws — and continue to so consent, the propriety of the intervenor's participation has never been adjudicated.
Because the state defendants have withdrawn their merits briefs, we face a situation akin to that in Windsor. There, a case or controversy remained between Windsor and the United States, which
Defendants argue that we are precluded from hearing this case by Baker, 409 U.S. 810, 93 S.Ct. 37. In that case, the Minnesota Supreme Court had rejected due process and equal protection challenges to a state law limiting marriage to a man and a woman. 291 Minn. 310, 191 N.W.2d 185, 186-87 (1971). The United States Supreme Court summarily dismissed an appeal from that decision "for want of a substantial federal question." Baker, 409 U.S. at 810, 93 S.Ct. 37. Such summary dismissals "prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions," Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam), until "doctrinal developments indicate otherwise," Hicks v. Miranda, 422 U.S. 332, 343-44, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (citation and quotation marks omitted). Defendants contend that this decades-old case is still good law, and therefore bars us from concluding that same-sex couples have a due process or equal protection right to marriage.
However, "subsequent decisions of the Supreme Court" not only "suggest" but make clear that the claims before us present substantial federal questions.
Plaintiffs are ordinary Idahoans and Nevadans. One teaches deaf children. Another is a warehouse manager. A third is an historian. Most are parents. Like all human beings, their lives are given greater meaning by their intimate, loving, committed relationships with their partners and children. "The common vocabulary of family life and belonging that other[s] [] may take for granted" is, as the Idaho plaintiffs put it, denied to them — as are all of the concrete legal rights, responsibilities, and financial benefits afforded opposite-sex married couples by state and federal law
Defendants argue that their same-sex marriage bans do not discriminate on the basis of sexual orientation, but rather on the basis of procreative capacity. Effectively if not explicitly, they assert that while these laws may disadvantage same-sex couples and their children, heightened scrutiny is not appropriate because differential treatment by sexual orientation is an incidental effect of, but not the reason for, those laws. However, the laws at issue distinguish on their face between opposite-sex couples, who are permitted to marry and whose out-of-state marriages are recognized, and same-sex couples, who are not permitted to marry and whose marriages are not recognized. Whether facial discrimination exists "does not depend on why" a policy discriminates, "but rather on
In SmithKline, we held that classifications on the basis of sexual orientation are subject to heightened scrutiny. 740 F.3d at 474. We explained:
Id. at 481.
Windsor, we reasoned, applied heightened scrutiny in considering not the Defense of Marriage Act's hypothetical rationales but its actual, motivating purposes.
Id.
We proceed by applying the law of our circuit regarding the applicable level of scrutiny. Because Idaho and Nevada's laws discriminate on the basis of sexual orientation, that level is heightened scrutiny.
Defendants argue that their marriage laws survive heightened scrutiny because they promote child welfare by encouraging optimal parenting. Governor Otter argues that same-sex marriage "teaches everyone — married and unmarried, gay and straight, men and women, and all the children — that a child knowing and being reared by her mother and father is neither socially preferred nor officially encouraged." Governor Otter seeks to have the state send the opposite message to all Idahoans: that a child reared by its biological parents is socially preferred and officially encouraged.
This argument takes two related forms: First, defendants make a "procreative channeling" argument: that the norms of opposite-sex marriage ensure that as many children as possible are raised by their married biological mothers and fathers. They claim that same-sex marriage will undermine those existing norms, which encourage people in opposite-sex relationships to place their children's interests above their own and preserve intact family
We pause briefly before considering the substance of defendants' arguments to address the contention that their conclusions about the future effects of same-sex marriage on parenting are legislative facts entitled to deference. Defendants have not demonstrated that the Idaho and Nevada legislatures actually found the facts asserted in their briefs; even if they had, deference would not be warranted.
Unsupported legislative conclusions as to whether particular policies will have societal effects of the sort at issue in this case — determinations which often, as here, implicate constitutional rights — have not been afforded deference by the Court. To the contrary, we "retain[] an independent constitutional duty to review factual findings where constitutional rights are at stake.... Uncritical deference to [legislatures'] factual findings in these cases is inappropriate." Gonzales v. Carhart, 550 U.S. 124, 165-66, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007); see also Hodgson v. Minnesota, 497 U.S. 417, 450-55, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990).
Marriage, the Coalition argues, is an "institution directed to certain great social tasks, with many of those involving a man and a woman united in the begetting, rearing, and education of children"; it is being "torn away," they claim, "from its ancient social purposes and transformed into a government-endorsed celebration of the private desires of two adults (regardless of gender) to unite their lives sexually, emotionally, and socially for as long as those personal desires last." Defendants struggle, however, to identify any means by which same-sex marriages will undermine these social purposes. They argue vehemently that same-sex marriage will harm existing and especially future opposite-sex couples and their children because the message communicated by the social institution of marriage will be lost.
As one of the Nevada plaintiffs' experts testified, there is no empirical support for the idea that legalizing same-sex marriage would harm — or indeed, affect — opposite-sex marriages or relationships. That expert presented data from Massachusetts, a state which has permitted same-sex marriage since 2004, showing no decrease in marriage rates or increase in divorce rates in the past decade.
First, they argue that since same-sex families will not include both a father and a mother, a man who has a child with a woman will conclude that his involvement in that child's life is not essential. They appear to contend that such a father will see a child being raised by two women and deduce that because the state has said it is unnecessary for that child — who has two parents — to have a father, it is also unnecessary for his child to have a father. This proposition reflects a crass and callous view of parental love and the parental bond that is not worthy of response. We reject it out of hand. Accord Kitchen, 755 F.3d at 1223 (concluding that it was "wholly illogical" to think that same-sex marriage would affect opposite-sex couples' choices); Windsor v. United States, 699 F.3d 169, 188 (2d Cir.2012); Golinski v. Office of Pers. Mgmt., 824 F.Supp.2d 968, 998 (N.D.Cal.2012); Perry v. Schwarzenegger, 704 F.Supp.2d 921, 972 (N.D.Cal. 2010).
Defendants also propose another possible means by which endorsing same-sex marriage could discourage opposite-sex marriage, albeit less explicitly: opposite-sex couples who disapprove of same-sex marriage will opt less frequently or enthusiastically to participate in an institution that allows same-sex couples to participate. However, the fear that an established institution will be undermined due to private opposition to its inclusive shift is not a legitimate basis for retaining the status quo. In United States v. Virginia, the Court explained:
518 U.S. 515, 542-44, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996); see also Palmore v.
Same-sex marriage, Governor Otter asserts, is part of a shift towards a consent-based, personal relationship model of marriage, which is more adult-centric and less child-centric.
Idaho focuses on another aspect of the procreative channeling claim. Because opposite-sex couples can accidentally conceive (and women may choose not to terminate unplanned pregnancies), so the argument goes, marriage is important because it serves to bind such couples together and to their children. This makes some sense. Defendants' argument runs off the rails, however, when they suggest that marriage's stabilizing and unifying force is unnecessary for same-sex couples, because they always choose to conceive or adopt a child.
Moreover, marriage is not simply about procreation, but as much about
Turner v. Safley, 482 U.S. 78, 95-96, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (recognizing that prisoners, too, enjoyed the right to marry, even though they were not allowed to have sex, and even if they did not already have children).
Although many married couples have children, marriage is at its essence an "association that promotes ... a bilateral loyalty, not commercial or social projects." Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (recognizing that married couples have a privacy right to use contraception in order to prevent procreation). Just as "it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," Lawrence, 539 U.S. at 567, 123 S.Ct. 2472, it demeans married couples — especially those who are childless — to say that marriage is simply about the capacity to procreate.
Additionally, as plaintiffs argue persuasively, Idaho and Nevada's laws are grossly over-and under-inclusive with respect to procreative capacity. Both states give marriage licenses to many opposite-sex couples who cannot or will not reproduce — as Justice Scalia put it, in dissent, "the sterile and the elderly are allowed to marry," Lawrence, 539 U.S. at 604-05, 123 S.Ct. 2472 — but not to same-sex couples who already have children or are in the process of having or adopting them.
A few of Idaho and Nevada's other laws, if altered, would directly increase the number of children raised by their married biological parents. We mention them to illustrate, by contrast, just how tenuous any potential connection between a ban on same-sex marriage and defendants' asserted aims is. For that reason alone, laws so poorly tailored as those before us cannot survive heightened scrutiny.
If defendants really wished to ensure that as many children as possible had married parents, they would do well to rescind the right to no-fault divorce, or to divorce altogether. Neither has done so. Such reforms might face constitutional difficulties of their own, but they would at least further the states' asserted interest in solidifying marriage. Likewise, if Idaho and Nevada want to increase the percentage of children being raised by their two biological parents, they might do better to ban assisted reproduction using donor sperm or eggs, gestational surrogacy, and adoption, by both opposite-sex and same-sex couples, as well as by single people. Neither state does. See Idaho Code §§ 39-5401 et seq.; Nev.Rev.Stat. §§ 122A.200(1)(d), 126.051(1)(a), 126.510 et seq., 127.040; see also Carla Spivack, The Law of Surrogate Motherhood in the United States, 58 Am. J. Comp. L. 97, 102 & n.15 (2010); Idaho is a destination for surrogacy, KTVB.com (Dec. 5, 2013).
In extending the benefits of marriage only to people who have the capacity to procreate, while denying those same benefits to people who already have children, Idaho and Nevada materially harm and
Governor Otter and the Coalition, but not the state of Idaho, also argue that children should be raised by both a male parent and a female parent. They assert that their marriage laws have "recognized, valorized and made normative the roles of `mother' and `father' and their uniting, complementary roles in raising their offspring," and insist that allowing same-sex couples to marry would send the message that "men and women are interchangeable [and that a] child does not need a mother and a father."
However, as we explained in SmithKline, Windsor "forbid[s] state action from `denoting the inferiority'" of same-sex couples. 740 F.3d at 482 (citing Brown v. Bd. of Educ., 347 U.S. 483, 494, 74 S.Ct. 686, 98 L.Ed. 873 (1954)).
SmithKline, 740 F.3d at 482. Windsor makes clear that the defendants' explicit desire to express a preference for opposite-sex couples over same-sex couples is a categorically inadequate justification for discrimination. Expressing such a preference is precisely what they may not do.
Defendants' argument is, fundamentally, non-responsive to plaintiffs' claims to marriage rights; instead, it is about the suitability of same-sex couples, married or not, as parents, adoptive or otherwise. That it is simply an ill-reasoned excuse for unconstitutional discrimination is evident from the fact that Idaho and Nevada already allow adoption by lesbians and gays. The Idaho Supreme Court has determined that "sexual orientation [is] wholly irrelevant" to a person's fitness or ability to adopt children. In re Adoption of Doe, 156 Idaho 345, 326 P.3d 347, 353 (2014). "In a state where the privilege of becoming a child's adoptive parent does not hinge on a person's sexual orientation, it is impossible to fathom how hypothetical concerns about the same person's parental fitness could possibly relate to civil marriage." Latta, 19 F.Supp.3d at 1081, 2014 WL 1909999, at *23. By enacting a domestic partnership law, Nevada, too, has already acknowledged that no harm will come of treating same-sex couples the same as opposite-sex
To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as unconstitutional. Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in "family values." In any event, Idaho and Nevada's asserted preference for opposite-sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation.
Thus, we need not address the constitutional restraints the Supreme Court has long imposed on sex-role stereotyping, which may provide another potentially persuasive answer to defendants' theory. See Virginia, 518 U.S. at 533, 116 S.Ct. 2264 (explaining that justifications which "rely on overbroad generalizations about the different talents, capacities, or preferences of males and females" are inadequate to survive heightened scrutiny); see also Caban v. Mohammed, 441 U.S. 380, 389, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979) (rejecting the claim that "any universal difference between maternal and paternal relations at every phase of a child's development" justified sex-based distinctions in adoption laws). We note, in addition, that defendants have offered no probative evidence in support of their "complementarity" argument.
Both the Idaho defendants and the Coalition advance a few additional justifications, though all are unpersuasive.
Third, the Coalition argues that Nevada's ban is justified by the state's interest in protecting "the traditional institution of marriage."
Certainly, the exclusion of same-sex couples from marriage is longstanding. However, "it is circular reasoning, not analysis,
Idaho and Nevada's marriage laws, by preventing same-sex couples from marrying and refusing to recognize same-sex marriages celebrated elsewhere,
Defendants' essential contention is that bans on same-sex marriage promote the welfare of children, by encouraging good parenting in stable opposite-sex families. Heightened scrutiny, however, demands more than speculation and conclusory assertions, especially when the assertions are of such little merit. Defendants have presented no evidence of any such effect. Indeed, they cannot even explain the manner in which, as they predict, children of opposite-sex couples will be harmed. Their other contentions are equally without merit. Because defendants have failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.
The official message of support that Governor Otter and the Coalition wish to send in favor of opposite-sex marriage is equally unconstitutional, in that it necessarily serves to convey a message of disfavor towards same-sex couples and their families. This is a message that Idaho and Nevada simply may not send.
The lessons of our constitutional history are clear: inclusion strengthens, rather than weakens, our most important institutions. When we integrated our schools, education improved. See Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 492-95, 74 S.Ct. 686, 98 L.Ed. 873 (1954). When we opened our juries to women, our democracy became more vital. See Taylor v. Louisiana, 419 U.S. 522, 535-37, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). When we allowed lesbian and gay soldiers to serve openly in uniform, it enhanced unit cohesion. See Witt v. Dep't of Air Force, 527 F.3d 806, 821 n. 11 (9th Cir.2008). When same-sex couples are married, just as when opposite-sex couples are married, they serve as models of loving commitment to all.
The judgment of the district court in Latta v. Otter is AFFIRMED. The judgment of the district court in Sevcik v. Sandoval is REVERSED, and the case is REMANDED to the district court for the prompt issuance of an injunction permanently
REINHARDT, Circuit Judge, concurring:
I, of course, concur without reservation in the opinion of the Court. I write separately only to add that I would also hold that the fundamental right to marriage, repeatedly recognized by the Supreme Court, in cases such as Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), and Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), is properly understood as including the right to marry an individual of one's choice. That right applies to same-sex marriage just as it does to opposite-sex marriage. As a result, I would hold that heightened scrutiny is appropriate for an additional reason: laws abridging fundamental rights are subject to strict scrutiny, and are invalid unless there is a "compelling state interest" which they are "narrowly tailored" to serve. United States v. Juvenile Male, 670 F.3d 999, 1012 (9th Cir.2012) (citing Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)), cert. denied, ___ U.S. ___, 133 S.Ct. 234, 184 L.Ed.2d 122 (2012). Because the inadequacy of the states' justifications has been thoroughly addressed, I write only to explain my view that the same-sex marriage bans invalidated here also implicate plaintiffs' substantive due process rights.
Like all fundamental rights claims, this one turns on how we describe the right. Plaintiffs and defendants agree that there is a fundamental right to marry, but defendants insist that this right consists only of the right to marry an individual of the opposite sex. In Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), the Supreme Court explained "that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition." Our articulation of such fundamental rights must, we are told, be "carefully formulat[ed]." Id. at 722, 117 S.Ct. 2258 (citations and quotation marks omitted).
However, "careful" does not mean "cramped." Our task is to determine the scope of the fundamental right to marry as inferred from the principles set forth by the Supreme Court in its prior cases. Turner held that prisoners who had no children and no conjugal visits during which to conceive them — people who could not be biological parents — had a due process right to marry. 482 U.S. at 94-97, 107 S.Ct. 2254. Zablocki held that fathers with outstanding child support obligations — people who were, at least according to adjudications in family court, unable to adequately provide for existing children — had a due process right to marry. 434 U.S. at 383-87, 98 S.Ct. 673.
In each case, the Supreme Court referred to — and considered the historical roots of — the general right of people to marry, rather than a narrower right defined in terms of those who sought the ability to exercise it. These cases rejected status-based restrictions on marriage not by considering whether to recognize a new, narrow fundamental right (i.e., the right of
The third and oldest case in the fundamental right to marry trilogy, Loving, is also the most directly on point. That case held that Virginia's anti-miscegenation laws, which prohibited and penalized interracial marriages, violated the Fourteenth Amendment's Equal Protection and Due Process Clauses. 388 U.S. at 2-6, 87 S.Ct. 1817. In a rhetorical stroke as uncomprehending as it is unavailing, defendants contend that lesbians and gays are not denied the freedom to marry by virtue of the denial of their right to marry individuals of the same sex, as they are still free to marry individuals of the opposite sex. Defendants assert that their same-sex marriage bans are unlike the laws in Turner and Zablocki because they do not categorically bar people with a particular characteristic from marrying, but rather limit whom lesbians and gays, and all other persons, may marry. However, Loving itself squarely rebuts this argument. Mildred Jeter and Richard Loving were not barred from marriage altogether. Jeter was perfectly free to marry a black person, and Loving was perfectly free to marry a white person. They were each denied the freedom, however, to marry the person whom they chose — the other. The case of lesbians and gays is indistinguishable. A limitation on the right to marry another person, whether on account of race or for any other reason, is a limitation on the right to marry.
Defendants urge that "man-woman" and "genderless" marriage are mutually exclusive, and that permitting the latter will "likely destroy[]" the former. Quite the opposite is true. Loving teaches that Virginia's anti-miscegenation laws did not simply "deprive the Lovings of liberty without due process of law." 388 U.S. at 12, 87 S.Ct. 1817. They did far worse; as the Court declared, the laws also "surely... deprive[d] all the State's citizens of liberty without due process of law." Id. (emphasis added). When Virginia told Virginians that they were not free to marry the one they loved if that person was of a different race, it so grievously constrained their "freedom of choice to marry" that it violated the constitutional rights even of those citizens who did not themselves wish to enter interracial marriages
To define the right to marry narrowly, as the right to marry someone of the opposite sex, would be to make the same error committed by the majority in Bowers v. Hardwick, 478 U.S. 186, 190, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), which considered whether there was a "fundamental right to engage in homosexual sodomy." This description of the right at issue "fail[ed] to appreciate the extent of the liberty at stake," the Court stated in Lawrence, 539 U.S. at 567, 123 S.Ct. 2472. Lawrence rejected as wrongheaded the question whether "homosexuals" have certain fundamental rights; "persons" — of whatever orientation — are rights-holders. See id. Fundamental rights defined with respect to the subset of people who hold them are fundamental rights misdefined. The question before us is not whether lesbians and gays have a fundamental right to marry a person of the same sex; it is whether a person has a fundamental right to marry, to enter into "the most important relation in life," Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed. 654 (1888), with the one he or she loves. Once the question is properly defined, the answer follows ineluctably: yes.
Historically, societies have strictly regulated intimacy and thereby oppressed those whose personal associations, such as committed same-sex relationships, were, though harmful to no one, disfavored. Human intimacy, like "liberty[,] [has] manifold possibilities." Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. Although "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress[,] [a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." Id. at 578-79, 123 S.Ct. 2472.
We, as judges, deal so often with laws that confine and constrain. Yet our core legal instrument comprehends the rights of all people, regardless of sexual orientation, to love and to marry the individuals they choose. It demands not merely toleration; when a state is in the business of marriage, it must affirm the love and commitment of same-sex couples in equal measure. Recognizing that right dignifies them; in so doing, we dignify our Constitution.
BERZON, Circuit Judge, concurring:
I agree that Idaho and Nevada's same-sex marriage prohibitions fail because they discriminate on the basis of sexual orientation and I join in the Opinion of the Court. I write separately because I am persuaded that Idaho and Nevada's same-sex marriage bans are also unconstitutional for another reason: They are classifications on the basis of gender that do not survive the level of scrutiny applicable to such classifications.
"[S]tatutory classifications that distinguish between males and females are `subject to scrutiny under the Equal Protection Clause.'" Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (quoting Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971)). "To withstand constitutional challenge, ... classifications by gender must serve important
A law that facially dictates that a man may do X while a woman may not, or vice versa, constitutes, without more, a gender classification. "[T]he absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether [a policy] involves disparate treatment through explicit facial discrimination does not depend on why the [defendant] discriminates but rather on the explicit terms of the discrimination." UAW v. Johnson Controls, Inc., 499 U.S. 187, 199, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991).
Some examples help to illuminate these fundamental precepts. Surely, a law providing that women may enter into business contracts only with other women would classify on the basis of gender. And that would be so whether or not men were similarly restricted to entering into business relationships only with other men.
Likewise, a prison regulation that requires correctional officers be the same sex as the inmates in a prison "explicitly discriminates ... on the basis of ... sex." Dothard v. Rawlinson, 433 U.S. 321, 332, 332 n. 16, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). Again, that is so whether women alone are affected or whether men are similarly limited to serving only male prisoners.
Further, it can make no difference to the existence of a sex-based classification whether the challenged law imposes gender homogeneity, as in the business partner example or Dothard, or gender heterogeneity. Either way, the classification is one that limits the affected individuals' opportunities based on their sex, as compared to the sex of the other people involved in the arrangement or transaction.
As Justice Johnson of the Vermont Supreme Court noted, the same-sex marriage prohibitions, if anything, classify more obviously on the basis of sex than they do on the basis of sexual orientation: "A woman is denied the right to marry another woman because her would-be partner is a woman, not because one or both are lesbians.... [S]exual orientation does not appear as a qualification for marriage" under these laws; sex does. Baker v. State, 170 Vt. 194, 744 A.2d 864, 905 (1999) (Johnson, J., concurring in part and dissenting in part).
The statutes' gender focus is also borne out by the experience of one of the Nevada plaintiff couples:
Notably, Goody and Vibe were not asked about their sexual orientation; Vibe was told she was being excluded because of her gender and the gender of her partner.
Of course, the reason Vibe wants to marry Goody, one presumes, is due in part to their sexual orientations.
Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) also underscores why the continuation of the same-sex marriage prohibitions today is quite obviously about gender. Lawrence held that it violates due process for states to criminalize consensual, noncommercial same-sex sexual activity that occurs in private between two unrelated adults. See id. at 578, 123 S.Ct. 2472. After Lawrence, then, the continuation of the same-sex marriage bans necessarily turns on the gender identity of the spouses, not the sexual activity they may engage in. To attempt to bar that activity would be unconstitutional. See id. The Nevada intervenors recognize as much, noting that Lawrence "differentiates between the fundamental right of gay men and lesbians to enter an intimate relationship, on one hand, and, on the other hand, the right to marry a member of one's own sex." The "right to marry a member of one's own sex" expressly turns on sex.
This narrow view of the reach of the impermissible classification concept is, of course, no longer the law after Brown. Loving v. Virginia reinforced the post-Brown understanding of impermissible classification under the Fourteenth Amendment in a context directly analogous to the present one. Addressing the constitutionality of anti-miscegenation laws banning interracial marriage, Loving firmly "reject[ed] the notion that the mere `equal application' of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discrimination." 388 U.S. 1, 8, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). As Loving explained, "an even-handed state purpose" can still be "repugnant to the Fourteenth Amendment," id. at 11 n. 11, 87 S.Ct. 1817, because restricting individuals' rights, choices, or opportunities "solely because of racial classifications violates the central meaning of the Equal Protection Clause" even if members of all racial groups are identically restricted with regard to interracial marriage. Id. at 12, 87 S.Ct. 1817. "Judicial inquiry under the Equal Protection Clause ... does not end with a showing of equal application among the members of the class defined by the legislation." McLaughlin, 379 U.S. 184 at 191, 85 S.Ct. 283.
If more is needed to confirm that the defendants' "equal application" theory has no force, there is more — cases decided both before and after Loving. Shelley v. Kraemer, for example, rejected the argument that racially restrictive covenants were constitutional because they would be enforced equally against both black and white buyers. Shelley v. Kraemer 334 U.S. 1, 21-22, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). In so holding, Shelley explained: "The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights." Id. at 22, 68 S.Ct. 836. Shelley also observed that "a city ordinance which denied to colored persons the right to occupy houses in blocks in which the greater number of houses were occupied by white persons, and imposed similar restrictions on white persons with respect to blocks in which the greater number of houses were occupied by colored persons" violated the Fourteenth Amendment despite its equal application to both black and white occupants. See id. at 11, 68 S.Ct. 836 (describing Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917)).
The same individual rights analysis applies in the context of gender classifications. Holding unconstitutional peremptory strikes on the basis of gender, J.E.B. explained that "individual jurors themselves have a right to nondiscriminatory jury selection procedures.... [T]his right extends to both men and women." J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 140-41, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). "The neutral phrasing of the Equal Protection Clause, extending its guarantee to `any person,' reveals its concern with rights of individuals, not groups (though group disabilities are sometimes the mechanism by which the State violates the individual right in question)." Id. at 152, 114 S.Ct. 1419 (Kennedy, J., concurring).
City of Los Angeles, Dep't of Water & Power v. Manhart further explains why, even in "the absence of a discriminatory
Under all these precedents, it is simply irrelevant that the same-sex marriage prohibitions privilege neither gender as a whole or on average. Laws that strip individuals of their rights or restrict personal choices or opportunities solely on the basis of the individuals' gender are sex discriminatory and must be subjected to intermediate scrutiny. See J.E.B., 511 U.S. at 140-42, 114 S.Ct. 1419. Accordingly, I would hold that Idaho and Nevada's same-sex marriage prohibitions facially classify on the basis of gender, and that the "equal application" of these laws to men and women as a class does not remove them from intermediate scrutiny.
The Supreme Court has confirmed that such differential treatment of similarly-situated sex-defined subgroups also constitutes impermissible sex discrimination. Phillips v. Martin Marietta Corp., for example, held that an employer's refusal to
Of those individuals who seek to obtain the state-created benefits and obligations of legal marriage to a woman, men may do so but women may not. Thus, at the subclass level — the level that takes into account the similar situations of affected individuals — women as a group and men as a group are treated differently. For this reason as well I would hold that Idaho and Nevada's same-sex marriage prohibitions facially classify on the basis of gender. They must be reviewed under intermediate scrutiny.
Idaho and Nevada's same sex marriage laws not only classify on the basis of sex but also, implicitly and explicitly, draw on "archaic and stereotypic notions" about the purportedly distinctive roles and abilities of men and women. Eradicating the legal impact of such stereotypes has been a central concern of constitutional sex-discrimination jurisprudence for the last several decades. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). The same-sex marriage bans thus share a key characteristic with many other sex-based classifications, one that underlay the Court's adoption of intermediate scrutiny for such classifications.
The Supreme Court has consistently emphasized that "gender-based classifications... may be reflective of `archaic and overbroad' generalizations about gender, or based on `outdated misconceptions concerning the role of females in the home rather than in the marketplace and world of ideas.'" J.E.B., 511 U.S. at 135, 114 S.Ct. 1419 (quoting Schlesinger v. Ballard, 419 U.S. 498, 506-07, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Craig, 429 U.S. at 198-99, 97 S.Ct. 451) (some internal quotation marks omitted). Laws that rest on nothing more than "the `baggage of sexual stereotypes,' that presume[] the father has the `primary responsibility to provide a home and its essentials,' while the mother is the `center of home and family life'"
The notion underlying the Supreme Court's anti-stereotyping doctrine in both Fourteenth Amendment and Title VII cases is simple, but compelling: "[n]obody should be forced into a predetermined role on account of sex," or punished for failing to conform to prescriptive expectations of what behavior is appropriate for one's gender. See Ruth Bader Ginsburg, Gender and the Constitution, 44 U. Cin.L.Rev. 1, 1 (1975). In other words, laws that give effect to "pervasive sex-role stereotype[s]" about the behavior appropriate for men and women are damaging because they restrict individual choices by punishing those men and women who do not fit the stereotyped mold. Nev. Dep't of Human Resources v. Hibbs, 538 U.S. 721, 731, 738, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003).
Idaho and Nevada's same-sex marriage prohibitions, as the justifications advanced for those prohibitions in this Court demonstrate, patently draw on "archaic and stereotypic notions" about gender. Hogan, 458 U.S. at 725, 102 S.Ct. 3331. These prohibitions, the defendants have emphatically argued, communicate the state's view of what is both "normal" and preferable with regard to the romantic preferences, relationship roles, and parenting capacities of men and women. By doing so, the laws enforce the state's view that men and women "naturally" behave differently from one another in marriage and as parents.
The defendants, for example, assert that "gender diversity or complementarity among parents ... provides important benefits" to children, because "mothers and fathers tend on average to parent differently and thus make unique contributions to the child's overall development." The defendants similarly assert that "[t]he man-woman meaning at the core of the marriage institution, reinforced by the law, has always recognized, valorized, and made normative the roles of `mother' and `father' and their uniting, complementary roles in raising their offspring."
Viewed through the prism of the Supreme Court's contemporary anti-stereotyping sex discrimination doctrine, these proferred justifications simply underscore that the same-sex marriage prohibitions discriminate on the basis of sex, not only in their form — which, as I have said, is sufficient in itself — but also in reviving the very infirmities that led the Supreme Court to adopt an intermediate scrutiny standard for sex classifications in the first place. I so conclude for two, somewhat independent, reasons.
Marriage laws further dictated economically disparate roles for husband and wife. In many respects, the marital contract was primarily understood as an economic arrangement between spouses, whether or not the couple had or would have children. "Coverture expressed the legal essence of marriage as reciprocal: a husband was bound to support his wife, and in exchange she gave over her property and labor." Cott, Public Vows, at 54. That is why "married women traditionally were denied the legal capacity to hold or convey property...." Frontiero, 411 U.S. at 685, 93 S.Ct. 1764. Notably, husbands owed their wives support even if there were no children of the marriage. See, e.g., Hendrik Hartog, Man and Wife in America: A History 156 (2000).
There was also a significant disparity between the rights of husbands and wives with regard to physical intimacy. At common law, "a woman was the sexual property of her husband; that is, she had a duty to have intercourse with him." John D'Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America
Notably, although sex was strongly presumed to be an essential part of marriage, the ability to procreate was generally not. See, e.g., Chester Vernier, American Family Laws: A Comparative Study of the Family Law of the Forty-Eight American States, Alaska, the District of Columbia, and Hawaii (to Jan. 1, 1931) (1931) I § 50, 239-46 (at time of survey, grounds for annulment typically included impotency, as well as incapacity due to minority or "non-age"; lack of understanding and insanity; force or duress; fraud; disease; and incest; but not inability to conceive); II § 68, at 38-39 (1932) (at time of survey, grounds for divorce included "impotence"; vast majority of states "generally held that impotence ... does not mean sterility but must be of such a nature as to render complete sexual intercourse practically impossible"; and only Pennsylvania "ma[d]e sterility a cause" for divorce).
The common law also dictated that it was legally impossible for a man to rape his wife. Men could not be prosecuted for spousal rape. A husband's "incapacity" to rape his wife was justified by the theory that "`the marriage constitute[d] a blanket consent to sexual intimacy which the woman [could] revoke only by dissolving the marital relationship.'" See, e.g., Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Calif. L. Rev 1373, 1376 n. 9 (2000) (quoting Model Penal Code and Commentaries, § 213.1 cmt. 8(c), at 342 (Official Draft and Revised Comments 1980)).
Concomitantly, dissolving the marital partnership via divorce was exceedingly difficult. Through the mid-twentieth century, divorce could be obtained only on a limited set of grounds, if at all. At the beginning of our nation's history, several states did not permit full divorce except under the narrowest of circumstances; separation alone was the remedy, even if a woman could show "cruelty endangering life or limb." Peter W. Bardaglio, Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South 33 (1995); see also id. 32-33. In part, this policy dovetailed with the grim fact that, at English common law, and in several states through the beginning of the nineteenth century, "a husband's prerogative to chastise his wife" — that is, to beat her short of permanent injury — was recognized as his marital right. Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2125 (1996).
Perhaps unsurprisingly, the profoundly unequal status of men and women in marriage was frequently cited as justification for denying women equal rights in other arenas, including the workplace. "[S]tate courts made clear that the basis, and validity, of such laws lay in stereotypical beliefs about the appropriate roles of men and women." Hibbs v. Dep't of Human Res., 273 F.3d 844, 864 (9th Cir.2001), aff'd sub nom., Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953. Justice Bradley infamously opined in 1887 that "the civil law, as well as nature herself, has always recognized a
As a result of this separate-spheres regime, "`[h]istorically, denial or curtailment of women's employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second.' ... Stereotypes about women's domestic roles [we]re reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men." Hibbs, 538 U.S. at 736, 123 S.Ct. 1972 (quoting the Joint Hearing before the Subcommittee on Labor — Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 2d Sess., at 100 (1986)). Likewise, social benefits programs historically distinguished between men and women on the assumption, grounded in the unequal marital status of men and women, that women were more likely to be homemakers, supported by their working husbands. See, e.g., Califano v. Goldfarb, 430 U.S. 199, 205-07, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636, 644-45, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975).
This same legal transformation extended into the marital (and nonmarital) bedroom. Spousal rape has been criminalized in all states since 1993. See, e.g., Sarah M. Harless, From the Bedroom to the Courtroom: The Impact of Domestic Violence Law on Marital Rape Victims, 35 Rutgers L.J. 305, 318 (2003). Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), held that married couples have a fundamental privacy right to use contraceptives, and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), later applied equal protection principles to extend this right to single persons. More recently, Lawrence clarified that licit, consensual sexual behavior is no longer confined to marriage, but is protected when it occurs, in private, between two consenting adults, regardless of their gender. See 539 U.S. at 578, 123 S.Ct. 2472.
In the child custody context, mothers and fathers today are generally presumed to be equally fit parents. See, e.g., Cott, Public Vows, at 206. Stanley v. Illinois,
In short, a combination of constitutional sex-discrimination adjudication, legislative changes, and social and cultural transformation has, in a sense, already rendered contemporary marriage "genderless," to use the phrase favored by the defendants. See Op. Ct. at 12 n.6. For, as a result of these transformative social, legislative, and doctrinal developments, "[g]ender no longer forms an essential part of marriage; marriage under law is a union of equals." Perry, 704 F.Supp.2d at 993. As a result, in the states that currently ban same-sex marriage, the legal norms that currently govern the institution of marriage are "genderless" in every respect except the requirement that would-be spouses be of different genders. With that exception, Idaho and Nevada's marriage regimes have jettisoned the rigid roles marriage as an institution once prescribed for men and women. In sum, "the sex-based classification contained in the[se] marriage laws," as the only gender classification that persists in some states' marriage statutes, is, at best, "a vestige of sex-role stereotyping" that long plagued marital regimes before the modern era, see Baker, 744 A.2d at 906 (Johnson, J., concurring in part and dissenting in part), and, at worst, an attempt to reintroduce gender roles.
The same-sex marriage bars constitute gender discrimination both facially and when recognized, in their historical context, both as resting on sex stereotyping and as a vestige of the sex-based legal rules once imbedded in the institution of marriage. They must be subject to intermediate scrutiny.
For Idaho and Nevada's same-sex marriage prohibitions to survive the intermediate scrutiny applicable to sex discriminatory laws, it must be shown that these laws "serve important governmental objectives and [are] substantially related to achievement of those objectives." Craig, 429 U.S. at 197, 97 S.Ct. 451. "The purpose of requiring that close relationship is to assure that the validity of a classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women." Hogan, 458 U.S. at 725-26, 102 S.Ct. 3331.
In part, the interests advanced by the defendants fail because they are interests in promoting and enforcing gender stereotyping and so simply are not legitimate governmental interests. And even if we assume that the other governmental objectives cited by the defendants are legitimate and important, the defendants have not shown that the same-sex marriage prohibitions are substantially related to achieving any of them.
The asserted interests fall into roughly three categories: (1) ensuring children are
The Opinion of the Court thoroughly demonstrates why all of these interests are without merit as justifications for sexual orientation discrimination. I add this brief analysis only to show that the justifications are likewise wholly insufficient under intermediate scrutiny to support the sex-based classifications at the core of these laws.
Under the constitutional sex-discrimination jurisprudence of the last forty years, neither of these purported justifications can possibly pass muster as a justification for sex discrimination. Indeed, these justifications are laden with the very "`baggage of sexual stereotypes'" the Supreme Court has repeatedly disavowed. Califano v. Westcott, 443 U.S. at 89, 99 S.Ct. 2655 (quoting Orr, 440 U.S. at 283, 99 S.Ct. 1102).
This conclusion would follow "[e]ven [if] some statistical support can be conjured up for the generalization" that men and women behave differently as marital partners and/or parents, because laws that rely on gendered stereotypes about how men and women behave (or should behave) must be reviewed under intermediate scrutiny. See J.E.B., 511 U.S. at 140, 114 S.Ct. 1419. It has even greater force where, as
Moreover, even if it were true that, on average, women and men have different perspectives on some issues because of different life experiences, individual couples are at least as likely to exhibit conformity as diversity of personal characteristics. Sociological research suggests that individual married couples are more likely to be similar to each other in terms of political ideology, educational background, and economic background than they are to be dissimilar; despite the common saying that "opposites attract," in actuality it appears that "like attracts like." See, e.g., John R. Alford et al., The Politics of Mate Choice, 73:2 J. Politics 362, 376 (2011) ("[S]pousal concordance in the realm of social and political attitudes is extremely high."); Jeremy Greenwood et al., Marry Your Like: Assortative Mating and Income Inequality (Population Studies Ctr., Univ. Of Penn., Working Paper No. 14-1, at 1, 2014) (Since the 1960s, "the degree of assortative mating [with regard to educational level] has increased."). Further, there is no evidence of which I am aware that gender is a better predictor of diversity of viewpoints or of parenting styles than other characteristics. Such "gross generalizations that would be deemed impermissible if made on the basis of race [do not become] somehow permissible when made on the basis of gender." J.E.B., 511 U.S. at 139-40, 114 S.Ct. 1419.
In short, the defendants' asserted state interests in "gender complementarity" and "gender diversity" are not legitimate "important governmental objectives." See Craig, 429 U.S. at 197, 97 S.Ct. 451. Accordingly, I do not address whether excluding same-sex couples from marriage is substantially related to this goal.
Discouraging single parenting by excluding same-sex couples from marriage is oxymoronic, in the sense that it will likely achieve exactly the opposite of what the states say they seek to accomplish. The defendants' own evidence suggests that excluding same-sex couples from marriage renders their unions less stable, increasing the risk that the children of those couples will be raised by one parent rather than two.
True, an increasing number of children are now born and raised outside of marriage, a development that may well be undesirable.
The reason only opposite-sex couples should be allowed to marry, we are told by the defendants, is that they "possess the unique ability to create new life." But both same-sex and opposite-sex couples can and do produce children biologically related only to one member of the couple, via assisted reproductive technology or otherwise. And both same-sex and opposite-sex couples adopt children, belying the notion that the two groups necessarily differ as to their biological connection to the children they rear.
More importantly, the defendants "cannot explain how the failure of opposite-sex couples to accept responsibility for the children they create relates at all to the exclusion of same-sex couples from the benefits of marriage." Baker, 744 A.2d
Biological parents' inducements to marry will remain exactly what they have always been if same-sex couples can marry. The legal benefits of marriage — taxation, spousal support, inheritance rights, familial rights to make decisions concerning the illness and death of a spouse, and so on — will not change. See, e.g. Turner v. Safley, 482 U.S. 78, 95-96, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The only change will be that now-excluded couples will enjoy the same rights. As the sex-based exclusion of same-sex couples from marrying does not in any way enhance the marriage benefits available to opposite-sex couples, that exclusion does not substantially advance — or advance at all — the state interest in inducing opposite-sex couples to raise their biological children within a stable marriage.
These assertions are belied by history. As I have noted, see supra pp. 487-89, "traditional marriage" was in fact quite "adult-centric." Marriage was, above all, an economic arrangement between spouses. See, e.g., Cott, Public Vows, at 54. Whether or not there were children, the law imposed support obligations, inheritance rules, and other rights and burdens upon married men and women. Moreover, couples unwilling or unable to procreate have never been prevented from marrying. Nor was infertility generally recognized as a ground for divorce or annulment under the old fault-based regime, even though sexual impotence was. See, e.g., Vernier, I § 50, II § 68.
Further, the social concept of "companionate marriage" — that is, legal marriage for companionship purposes without the possibility of children — has existed since at least the 1920s. See Christina Simmons, Making Marriage Modern: Women's Sexuality from the Progressive Era to World War II 121 (2009). The Supreme Court called on this concept when it recognized the right of married couples to use contraception in 1965. Griswold, 381 U.S. at 486, 85 S.Ct. 1678. Griswold reasoned that, with or without procreation, marriage was "an association for as noble a purpose as any." Id.
Same-sex marriage is thus not inherently less "child-centric" than "traditional marriage."
In short, the "child-centric"/"adult-centric" distinction is an entirely ephemeral one, at odds with the current realities of marriage as an institution. There is simply no substantial relationship between discouraging an "adult-centric" model of marriage and excluding same-sex couples.
"Intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women." J.E.B., 511 U.S. at 130-31, 114 S.Ct. 1419. Idaho and Nevada's same-sex marriage proscriptions are sex based, and these bans do serve to preserve "invidious, archaic, and overbroad stereotypes" concerning gender roles. The bans therefore must fail as impermissible gender discrimination.
I do not mean, by presenting this alternative analysis, to minimize the fact that the same-sex marriage bans necessarily have their greatest effect on lesbian, gay, bisexual, and transgender individuals. Still, it bears noting that the social exclusion and state discrimination against lesbian, gay, bisexual, and transgender people reflects, in large part, disapproval of their nonconformity with gender-based expectations.
I do recognize, however, that the gender classification rubric does not adequately capture the essence of many of the restrictions targeted at lesbian, gay, and bisexual people. Employment discrimination, housing discrimination, and peremptory strikes on the basis of sexual orientation, to name a few of the exclusions gays, lesbians, and other sexual orientation minorities have faced, are primarily motivated by stereotypes about sexual orientation; by animus against people based on their nonconforming sexual orientation; and by distaste for same-sex sexual activity or the perceived personal characteristics of individuals who engage in such behavior. See, e.g., Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (2014). And those sorts of restrictions do not turn directly on gender; they do not withhold a benefit, choice, or opportunity from an individual because that individual is a man or
As to the same-sex marriage bans in particular, however, the gender discrimination rubric does squarely apply, for the reasons I have discussed. And as I hope I have shown, the concepts and standards developed in more than forty years of constitutional sex discrimination jurisprudence rest on the understanding that "[s]anctioning sex-based classifications on the grounds that men and women, simply by virtue of their gender, necessarily play different roles in the lives of their children and in their relationships with each other causes concrete harm to women and to men throughout our society." Deborah A. Widiss et al., Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence, 30 Harv. J.L. & Gender 461, 505 (2007). In my view, the same-sex marriage bans belie that understanding, and, for that reason as well, cannot stand.
The fact that Nevada has seen fit to give same-sex couples the opportunity to enjoy the benefits afforded married couples by state law makes its case for the constitutionality of its regime even weaker than Idaho's. With the concrete differences in treatment gone, all that is left is a message of disfavor. The Supreme Court has "repeatedly emphasized [that] discrimination itself, by perpetuating `archaic and stereotypic notions' or by stigmatizing members of the disfavored group as `innately inferior' and therefore as less worthy participants," can cause serious "injuries to those who are denied equal treatment solely because of their membership in a disfavored group." Heckler v. Mathews, 465 U.S. 728, 739-40, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) (citation omitted).
If Nevada were concerned, as the Coalition purports it to be, that state recognition of same-sex unions would make the institution of marriage "genderless" and thereby undermine opposite-sex spouses' commitments to each other and their children, it would be ill-advised to permit opposite-sex couples to participate in the alternative domestic partnership regime it has established. However, Nevada does just that.
Baskin, 766 F.3d at 662, 2014 WL 4359059, at *10 (7th Cir. Sept. 4, 2014).
Idaho and Nevada's laws are both over-and under-inclusive with respect to parental fitness. A man and a woman who have been convicted of abusing their children are allowed to marry; same-sex partners who have been adjudicated to be fit parents in an adoption proceeding are not.
We note also that an increasing number of religious denominations do sanctify same-sex marriages. Amicus Brief of Bishops of the Episcopal Church in Idaho et al. 8-9. Some religious organizations prohibit or discourage interfaith and interracial marriage, but it would obviously not be constitutional for a state to do so. Amicus Brief of the Anti-Defamation League et al. 23-25.
42 U.S.C. § 2000e-2(a). The Supreme Court has "analog[ized]" to its decisions interpreting what constitutes discrimination "because of" a protected status under Title VII in analyzing Fourteenth Amendment equal protection claims and vice versa. See, e.g., Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 133, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), superseded by statute on other grounds as recognized in Johnson Controls, 499 U.S. at 219, 111 S.Ct. 1196 ("While there is no necessary inference that Congress ... intended to incorporate into Title VII the concepts of discrimination which have evolved from court decisions construing the Equal Protection Clause of the Fourteenth Amendment, the similarities between the congressional language and some of those decisions surely indicate that the latter are a useful starting point in interpreting the former."). As the Court has explained, "[p]articularly in the case of defining the term `discrimination,'" Title VII must be interpreted consistently with Fourteenth Amendment equal protection principles, because Congress does not define "discrimination" in Title VII. See Gilbert, 429 U.S. at 133, 97 S.Ct. 401; see also 42 U.S.C. § 2000e. I therefore rely on Title VII cases throughout this Opinion for the limited purpose of determining whether a particular classification is or is not sex-based.