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For several decades, scholars, lawyers, and judges have debated whether laws against same-sex marriage are a form of discrimination based on sex. Most recently, during the oral arguments in Obergefell v. Hodges, Chief Justice Roberts asked whether it was “necessary to get into sexual orientation to resolve this case,” given that the challenged marriage laws treated couples differently based on their sex: “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?”1

For a long time now, the sex discrimination argument for LGBT rights has been a darling of law professors, thoughtfully developed over the years by several of the legal academy’s leading minds.2 Unfortunately, it has not fared so well among judges. Although plaintiffs have been advancing this argument since the 1970s,3 only a handful of trial and appellate judges have endorsed it.4 Notwithstanding the Chief Justice’s remark at oral argument, the sex discrimination argument was not specifically addressed in Obergefell itself.5 After Obergefell, legal scholars are left to wonder what, if anything, will come of the hard work that so many have devoted to this subject for so many years. In her recent essay, Risky Arguments in Social-Justice Litigation, Suzanne Goldberg takes up the question of why courts have been so reluctant to adopt the sex discrimination argument in same-sex marriage cases.

This reluctance is a subject that others have touched upon before her—but never in so much detail. Rather than focusing on the sex discrimination argument’s merits, Goldberg presents the argument as a case study of what she calls “risky arguments”—claims that “ask decisionmakers to revisit and unsettle deeply rooted or widespread social norms or practices”—“to find that discrimination is present in generally accepted societal hierarchies . . . or other familiar practices.” (P. 2089.) Such arguments, she explains, “not only seek a desired outcome but also aim to shift a court’s conceptualization of the problem at issue.” (P. 2089.) By definition, these “norm-challenging” arguments present “greater risks”—bigger “upsides” and bigger “downsides.” (P. 2089.) She contrasts “risky” arguments with “discrete” arguments—claims that seek “minor tweaks,” or more “incremental” changes to the social order.

Goldberg’s primary contribution is her wide-ranging exploration of the reasons that courts may have been avoiding the sex discrimination argument—not only the “theoretical” concerns raised by previous scholars, but also what she calls the “logistical” (P. 2122), “doctrinal” (P. 2124), and “psychosocial” (P. 2129) concerns of lawyers and judges. Among this list of possibilities, two explanations stand out as the most plausible: (1) “the way that the argument challenges decisionmakers’ own naturalized sense of sex and gender,” (P. 2130) and (2) the argument’s “impact on enduring sex-based distinctions outside of gay-rights cases,” such as “dress and grooming codes” (P. 2125), “parenting and military service” (P. 2126), single-sex schools (P. 2126 n.142), and single-sex bathrooms (P. 2133 n.170). Building on a “speculation” offered by Mary Anne Case,6 Goldberg reminds us that “most judges are or have been married to different-sex partners.” (P. 2130.)7 For such judges, Goldberg opines, the sex discrimination argument “may cut too close to home.” (P. 2130.) In short, Goldberg describes a “judicial fear—albeit unexpressed” that “a categorical legal rejection of sex-based rules would also erase social distinctions between men and women,” (P. 2133) destroying the foundation of patriarchy and heterosexuality itself.

Although Goldberg’s essay was published before Obergefell was decided, it poses a question that remains unanswered—and one that is poised to have a profound impact on the trajectory of the LGBT movement. Same-sex couples now have the freedom to marry in all fifty states, but there are still twenty-eight states without LGBT-inclusive antidiscrimination laws and another twenty states without LGBT-inclusive hate crimes laws. In these states, same-sex couples can marry, but LGBT people have no specific, explicit protections from being fired from their jobs, evicted from their homes, denied public services, targeted in public schools, and assaulted or murdered—all because of who they are and whom they love. To make matters worse, North Carolina has specifically mandated discrimination based on “biological sex” in bathrooms, and similar legislation is actively being considered in other cities and states.8

To remedy these wrongs, national LGBT organizations have joined Democratic legislators to announce the introduction of the Equality Act, a bill to add sexual orientation and gender identity to the protections of the Civil Rights Act of 1964 and other federal antidiscrimination laws.9 In recent years, however, LGBT plaintiffs have recently begun winning sex discrimination claims under federal antidiscrimination laws—not only in employment discrimination cases under Title VII, but also in school cases involving bathroom access under Title IX.10 As a result, the LGBT movement is facing a new iteration of the risks explored in Goldberg’s essay—whether, when, and how best to advance the sex discrimination argument for LGBT rights.11

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  1. Transcript of Oral Argument at 62, Obergefell v. Hodges, 135 S.Ct. 2071 (2015) (No. 14-556).
  2. See, e.g., Suzanne Pharr, Homophobia: A Weapon of Sexism (Chardon Press, expanded ed. 1997); Susan Frelich Appleton, Missing in Action? Searching for Gender Talk in the Same-Sex Marriage Debate, 16 Stan. L. & Pol’y Rev. 98 (2005); Mary Anne Case, What Feminists Have to Lose in Same-Sex Marriage Litigation, 57 UCLA L. Rev. 1199 (2010); Mary Anne Case, Very Stereotype the Law Condemns: Constitutional Sex Discrimination Law As a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447 (2000); Andrew Koppelman, Defending the Sex Discrimination Argument for Lesbian and Gay Rights: A Reply to Edward Stein, 49 UCLA L. Rev. 519 (2001); Andrew Koppelman, Note, The Miscegenation Analogy: Sodomy Law as Sex Discrimination, 98 Yale. L.J. 145 (1988); Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994); Sylvia Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 188 (1988); Deborah A. Widiss et al., Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence, 30 Harv. J. of L. & Gender 461, 479–87 (2007).
  3. See, e.g., Singer v. Hara, 522 P.2d 1187, 1190 (Wash. Ct. App. 1974).
  4. See Latta v. Otter, 771 F.3d 456, 496 (9th Cir. 2014) (Berzon, J., concurring); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206-07 (D. Utah 2013), aff’d, 755 F.3d 1193 (10th Cir. 2014), cert. denied, 131 S. Ct. 265 (U.S. 2014); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996, 997 (N.D. Cal. 2008); Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (plurality op.); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 970-72 (Mass. 2003) (Greeney, J., concurring); Baker v. State, 744 A.2d 864, 898 (Vt. 1999) (Johnson, J., concurring in part and dissenting in part).
  5. To be more precise: In Obergefell, the Court did not specifically address whether laws against same-sex marriage were a form of discrimination based on sex, and therefore subject to heightened scrutiny under the Equal Protection Clause. The Court did, however, consider the history of sex discrimination in marriage laws—namely, the existence and abolition of coverture—to determine how broadly the “fundamental right to marry” would be construed. In this respect, the Court’s analysis in Obergefell closely tracked the analysis of Chief Judge Vaughn Walker in Perry v. Schwarzenegger. See Clifford Rosky, Perry v. Schwarzenegger and the Future of Same-Sex Marriage Law, 53 Ariz. L. Rev. 913, 933-942 (2011).
  6. Mary Anne Case, What Feminists Have to Lose in Same-Sex Marriage Litigation, 57 UCLA L. Rev. 1199, 1232 (2010).
  7. One might add that even today, most judges are male, heterosexual, and likely to identify as family breadwinners. To date, several of the judges who have embraced the sex discrimination argument are female. See, e.g., Latta v. Otter, at *15 (9th Cir. Oct. 7, 2014) (Berzon, J., concurring); Hernandez v. Robles, 855 N.E.2d 1, 29 (N.Y. 2006) (Kaye, C.J., dissenting); Baker v. State, 744 A.2d 864, 905 (Vt. 1999) (Johnson, J., concurring in part and dissenting in part). Studies have consistently found that heterosexual men are more likely than heterosexual women to accept homophobic and heterosexist stereotypes. Clifford Rosky, Like Father, Like Son: Homosexuality, Parenthood, and the Gender of Homophobia, 20 Yale J. L. & Feminism 257, 267-268 (2009).
  8. Leah Libresco, Seven Other States Are Considering Restricting Bathrooms For Transgender People,, Apr. 6, 2016.
  9. H.R. 3185, 114th Cong. (2015); S. 1858, 114th Cong. (2015).
  10. See, e.g., G.G. v. Glouchester County School Board, No. 15-2056, 2016 WL 1567467 (4th Cir. Apr. 19, 2016); Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641 (E.E.O.C. July 15, 2015); Macy v. Holder, Appeal No. 0120120821, 2012 WL 1435995 (E.E.O.C. Apr. 20, 2012); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).
  11. On the strategic tradeoffs involved in litigating and lobbying for LGBT-inclusive antidiscrimination protections, see Clifford Rosky, Still Not Equal: A Report from the Red States, in After Marriage Equality: The Future of LGBT Rights (Carlos Ball ed. NYU Press, forthcoming 2016); Mary Anne Case, Legal Protections for the “Personal Best” of Each Employee: Title VII’s Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA, 66 Stan. L. Rev. 1333 (2014).
Cite as: Clifford Rosky, Sex Discrimination: The Future of LGBT Rights?, JOTWELL (May 23, 2016) (reviewing Suzanne Goldberg, Risky Arguments in Social-Justice Litigation: The Case of Sex Discrimination and Marriage Equality, 114 Colum. L. Rev. 2087 (2014)),