Both during and after the City Bar Association panel I participated in a few weeks ago on the future of same sex marriage, I’ve gotten some push back for suggesting that we consider and evaluate the merits and risks of various constitutional arguments that have been made in the cases challenging the exclusion of same sex couples from the legal institution of marriage. At the panel, I commented that simply because a legal argument is available to us doesn’t mean we should make it. The availability of the argument merely inaugurates, rather than concludes the political discussion about why and how we should win the right to marry.

What does it mean to have an argument available and what arguments were available in the same sex marriage cases? Availability means that it has some level of plausibility – that there is some body of case law to which the advocates in the case can turn that can form a non-specious basis of having the marriage laws overturned. In the Hawaii case in 1993, for instance, the case was won on a sex discrimination argument – that barring same sex couples from marrying amounted to a form of sex discrimination in so far as the state’s marriage law allowed you to marry one, but not another, sex (men can only marry women, women can only marry men). Professor Andrew Koppelman1 has been making this argument for years, and Professor Edward Stein2, among others, has offered a sustained critique of Koppelman’s sex discrimination argument.

Most of the cases since then have stressed other arguments – Fundamental Right to Marry, Dignity and Equal Protection. The Fundamental Right argument asserts that there is a fundamental right for all people to marriage, and that the state better have a compelling, non-discriminatory reason for denying access to marriage licenses to same sex couples. I’ve blogged previously on my problems with this argument. The Dignity argument maintains that refusing to confer the blessings of civil marriage upon same sex couples confers a dignity harm upon them, by refusing to acknowledge that same sex unions are entitled to the same dignity and respect as different sex unions. I’ve blogged previously about my concerns with this argument as well. The Equal Protection argument, which won the day in Iowa, claims that an equality norm has been violated when the state discriminates on the basis of sexual orientation in access to marriage licenses. Read here for why I liked the Iowa Supreme Court’s equality argument.

Reasonable minds on the same side of an issue can disagree about the relative merits or dangers of pursuing any or all of these approaches to gaining marriage rights for same sex couples. Yet, as one audience member at the City Bar panel asked: “if we might win with the dignity argument, why shouldn’t we make it?”

Law reform litigation is not about winning at any cost. These cases are part of a larger set of political strategies that play a key role in a political movement. Each of these arguments, if successful, enable or extinguish subsequent political action in complex ways. The fundamental rights argument cuts off any efforts to disestablish or de-emphasize the institution of marriage. The dignity argument implies important judgments about unmarried people that may have implications for many people well outside the lesbian and gay community. The equality argument makes no claim about the virtues of the institution of marriage, but merely states that if the state is going to be in the marriage business it must be so fairly.

I find it odd that the lot of us who have sought to have a critical discussion about how to argue these cases are being branded as traitors and are met with hostility from some of the lawyers and activists in the marriage equality movement. This debate is healthy and politically necessary. In the early 1970s there was no unanimity as to whether reproductive rights in general, and abortion rights in particular, should be argued as a matter of sex equality, liberty, privacy, bodily integrity, decisional autonomy or dignity. Harry Blackmun was able to get 4 other votes for privacy in Roe v. Wade, but most agree today that privacy provided a fragile and unsatisfactory hook upon which to hang this important issue. Poor women have not been helped by privacy, and over time the privacy right for all women secured in Roe has been pretty porous.

Similarly, should we have won the Lawrence v. Texas sodomy law case on privacy, equal protection, liberty or fundamental rights grounds? What about a notion of sexual citizenship? Wouldn’t finding that sodomy laws violate a notion of sexual citizenship be a victory not only for sexually non-normative people such as lesbians and gay men, but also potentially shore up reproductive rights as well?

These are important arguments to keep having among all of us on the same team.

  1. Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994) []
  2. Edward Stein, Evaluating the Sex-Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L. REV. 471 (2001) []


  1. The conversation about litigation strategies you describe raises another set of questions for me as well: Who gets to decide what arguments get made?

    In a run-of-the-mill case I think the lawyer probably has to consult with the client about that. But the marriage cases aren’t ordinary cases. The individual clients stand for the whole lesbian and gay community. The rights they seek to vindicate aren’t just their rights, but all of our rights. No one makes any pretense of consulting the entire community, and I’m not even sure of the extent to which individual clients are consulted. My guess is that the decisions are being debated nearly exclusively among the lawyers and the affiliated legal community.

    I suspect this skews the decision-making process. I’d bet, for example, that lawyers are disproportionately likely to have jobs that include spousal benefits. Thus, lawyers might tend to overemphasize the value of marriage as way of gaining access to those sorts of benefits.

    More generally, I think that marriage is probably of greater importance and more benefit to upper-class people. And I’d guess that lawyers are a bit more likely to be in that category.

    Finally, it seems likely to me that lawyers over-value the importance of legal categories. Creating, defining and manipulating those categories is, after all, what we do.

    All that said, I wonder if the choice of arguments in the marriage cases is really the result of careful reflection about what will bring the greatest benefit either to most lesbian and gay people or to most people generally. Instead, I think it might be the result of asking “how can we win this case.” I’m particularly concerned that sometimes the related question–‘what is the cost of winning this way?” doesn’t get asked at all or, if it does get asked, it doesn’t get asked of the right people.

    Which is exactly why this conversation is important.

  2. An interesting dialogue is value comment. I feel that it is best to write extra on this matter, it won’t be a taboo topic but usually people are not sufficient to speak on such topics. To the next. Cheers

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