The Supreme Court is currently mulling over cases that could potentially extend the right to same-sex marriage to all Americans (or possibly just all Californians) and the commentary has been extensive. Regardless of whether you support same-sex marriage or not, the decision, and it’s rationale, are going to have significant impacts for individuals both in their personal lives and in their professional lives.
Sonja West, of the University of Georgia School of Law, just posted an article over on Slate that raises an interesting question about how the judges might rule: Could the court find that prohibitions on same-sex marriage are a form of gender discrimination? Prof. West provides an example where two individuals attempt to get a marriage license to marry a man, one a man and the other a woman, clearly the woman will be granted the license and the man will not and the only difference is their gender. While this is an intriguing example, I think there may be a doctrine from employment law that fits the argument even better.
In 1989, the Supreme Court decided the case of Price Waterhouse v. Hopkins, where they found that an individual could support a claim for gender discrimination because they were treated differently for not “conforming to gender stereotypes.” Since that time, some courts have used this precedent to provide protection to men who were considered to be too effeminate (Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005) ) and transsexuals who were transitioning between genders (Glenn v. Brumby et al., 724 F. Supp. 2d 1284 (N.D. Ga. 2010)). If the court were looking for a rationale to overturn prohibitions on same-sex marriage, I don’t think it would be much of a stretch to consider the assumption that a man will marry a woman (or vice-a-versa) to be nothing more than a gender stereotype.
If the court did utilize this rationale, it would have some unique effects. First, there is already a huge body of statutes and case law that govern gender discrimination, so instead of creating a new form of discrimination out of whole cloth, the court would merely be extending the pre-existing framework. This would make for far less uncertainty for individuals who wanted protection for sexual orientation discrimination both as to procedural protections and the form that their claims would have to take.
The second effect would be that by framing sexual orientation discrimination as a form of gender discrimination, the courts decision would automatically apply to the entire nation, not just California or the federal government. While this would reduce the ability of states to come up with their own solutions to sexual orientation discrimination, it would get rid of the patchwork of approaches and laws that currently exist. This type of uniformity of approach would be more efficient but would also likely create potentially strong backlash from states that have prohibited same-sex marriage.
It is widely believed that the Supreme Court will issue its decision this month so we likely don’t have long to wait. There is clearly loof controversy and the one thing we can be sure of is that the Court’s decision will not be the end of the conversation.