During yesterday’s Supreme Court session, Chief Justice Roberts questioned whether sexual orientation even needed to be addressed in evaluating the constitutionality of same-sex marriage bans and briefly argued that the case could be evaluated from the perspective of gender discrimination, which is a federally protected class unlike sexual orientation: “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?”
For quite some time one of the primary arguments against the prohibition of same-sex marriages is that it discriminates based on sexual orientation, and violates the equal protection clause of the Fourteenth Amendment, even though sexual orientation currently falls under the lowest level of judicial scrutiny. Examining this case from the perspective of discrimination based on gender rather than sexual orientation not only provides a novel perspective, one I had never considered before, but also mandates the court apply a more rigorous level of scrutiny.
Upon further self-reflection, I’ve concluded that using sexual orientation discrimination as a basis of disputing same-sex marriage bans to be a poor argument in the pursuit of marriage equality.
Read More