Re-Orienting the Sex Discrimination Argument for Gay Rights after Lawrence v. Texas

Abstract

Heightened equal protection is appropriate for laws like Section 21.06 that use a sexual-orientation-based classification. It is also appropriate where, as here, the law employs a gender-based classification to discriminate against gay people. (1) This claim of sex discrimination in the petitioners' brief in Lawrence v. Texas, (2) a case about criminalized homosexual sodomy, must seem quite out of place to some. (3) Respondents simply belittled its importance in their reply. (4) They chose not to address the extensive argument that the National Organization for Women (NOW) briefed defending sex discrimination. (5) They also did not consider the dissent in the Texas Court below, which similarly relied on a sex discrimination argument. (6) In fact, the sex discrimination argument in Lawrence was far more than a footnote. But the respondents devoted their attention to sexual orientation claims instead. (7) The Supreme Court did, too. (8) Sex discrimination claims for homosexuals have surfaced again in the arena of same-sex marriage challenges. In Massachusetts, the Supreme Judicial Court rejected the treatment of homosexuals as second-class citizens but recognized at least a terminological difficulty. (9) In San Francisco, Mayor Newsom has very clearly relied on a sex equality claim. (10) Only recently, the New York courts have also entered the same-sex marriage debate, with an opinion by Judge Doris Ling-Cohan that affirmed marital rights for same-sex couples without relying on the sex discrimination argument. (11) The legal relationship between sex discrimination and sexual orientation discrimination arguments is currently unclear because the courts have been reluctant to protect homosexuals under any legal theory. As that reluctance passes, however, the need to examine this relationship has become pressing. This Article argues that a sex discrimination argument for gay rights under the Equal Protection Clause is incompatible with the developing jurisprudence of sexual orientation discrimination and should be reformulated as a postmodern argument for how various biases can and do intersect. Part I examines the sex discrimination and sexual orientation discrimination arguments individually. Part H explores a deep and persistent incompatibility between these arguments. Part III then resolves this conflict by pursuing an intersectional approach to the Equal Protection Clause. I. TWO EQUAL PROTECTION ARGUMENTS FOR GAY RIGHTS ARE EACH PERSUASIVE Both sex discrimination arguments and sexual orientation discrimination arguments are persuasive under the current Equal Protection jurisprudence. The Supreme Court has distinguished three standards of review for Equal Protection cases: a lenient rational review, a nearly fatal strict scrutiny, and a sensitive intermediate level of review. These of scrutiny vary according to the relationship of the law and the strength of the asserted state interest. Strict requires a law be narrowly tailored towards meeting a compelling state interest. (12) Strict is not fatal in fact, however, and both the rational and intermediate standards have been applied less deferentially by the modern Court. (13) Courts and commentators have devoted tremendous attention to these tiers of scrutiny. However, Justice Stevens once noted how simpler questions come first: In every equal protection case, we have to ask certain questions. What class is harmed by the legislation, and has it been subjected to a tradition of disfavor by our laws? What is the public purpose that is being served by the law? What is the characteristic of the disadvantaged class that justifies disparate treatment? (14) Sex discrimination and sexual orientation discrimination claims for homosexuals answer these basic questions in different ways. Still, the immediate results can be the same. Each claim is a persuasive theory for the legal equality of homosexuals. …