Gender “Artifacts,” Sex Discrimination, and the California Marriage Decision

Combing through Judge Vaughan Walker’s lengthy and momentous findings of fact and conclusions of law in Perry v. Schwarzenegger, in which he held that California’s Proposition 8 offends both federal due process and equal protection rights of same-sex couples, I find much with which to be impressed. But just a quick note on a particularly interesting and promising part of the opinion. Judge Walker refers to the one man-one woman marriage rule as a gender ‘artifact,’ a leftover from the era in which the state required fixed gender roles as part of marital status as a husband or wife. If and when this opinion makes it before the Supreme Court, this part of Judge Walker’s opinion provides a ready avenue for Justice Ginsburg and like-minded justices to affirm on the ground that restricting civil marriage to opposite sex couples rests on gender role stereotypes from an earlier era.

Aided by expert testimony of historian Nancy Cott, Judge Walker carefully reviews how marriage laws used to mandate different roles for men and women and how California, like other states, has abolished all such restrictions EXCEPT the one requiring that civil marriage be the union of one man and one woman. This provides a powerful line of argument because the U.S. Supreme Court has previously struck down laws rooted in gender role stereotypes rather than ‘real’ differences between the sexes. And it has made clear (for example, in Planned Parenthood v. Casey) that coverture and other gendered rules of marriage do not reflect contemporary understandings of the federal constitution, the family, or of the rights of women and men.

Judge Walker further concludes that appeals to ‘tradition’ alone cannot justify the continued application of this different genders rule. This is a potentially powerful argument since, as his opinion points out, both bars on interracial marriage and fixed gender roles in marriage were defended at the time as central to marriage and yet were also repudiated as inconsistent with evolving understandings of marriage. Over the years, feminist scholars (here I include myself as well as, no doubt, other contributors to and readers of this blog) have argued that a gender equality/sex discriminationargument might be a powerful way to challenge the ban on same-sex marriage. And we have seen the argument floated in various state court opinions.

But now, as this California litigation raises the question of federal grounds on which to challenge a state bar on same-sex marriage, this federal court opinion lays out the argument very clearly.

What do you think?

-Linda McClain