Among the many ways that Hollingsworth v. Perry has made history is through the district court’s holding on what I will call the “sex-discrimination claim” (or “theory”)–that is, the claim that discrimination against same-sex couples is a form of sex discrimination. With Chief Judge Vaughn R. Walker’s ruling, the United States District Court for the Northern District of California became the first court to hold that a state’s ban on same-sex marriage discriminated against lesbian, gay, and bisexual individuals on the basis of sex, in addition to discriminating against them based on sexual orientation, in violation of the Fourteenth Amendment to the United States Constitution.
The ruling on this issue came as a surprise to many observers, given that the sex-discrimination theory had not, with rare exception, proven successful in the many state court cases where it had been tested–including in California, where the state supreme court, considering the theory as a matter of state law, unanimously rejected it in 2008. Given the theory’s poor track record, I did not believe that the Perry district court’s ruling would alone suffice to shift the course of marriage equality litigation with respect to this issue. However, I did expect the sex-discrimination theory to gain some sort of boost, given that Perry–one of the most important high-profile same-sex marriage decisions ever issued–seemed, on a first read at least, to breathe some real life into it. Perhaps courts would still reject the theory, but surely some judges would feel obliged post-Perry to at least address the sex-discrimination claim in some meaningful way.
I was sorely mistaken. With minor exception, subsequent decisions addressing LGB rights, including marriage equality, have not only refused to accept the sex-discrimination claim, but they have generally shunted it aside with little reasoning or ignored it altogether–including in cases where LGB-equality advocates have prevailed. Plaintiffs in some recent cases, moreover, have not even advanced the argument–a marked change in strategy from earlier years.
Why is this? It is not as if the Perry district court decision as a whole has been ignored. Even after the Ninth Circuit decided the appeal, judges have continued to cite the district court for various factual and legal propositions. Was the sex-discrimination claim really so inherently unappealing and unpersuasive that the Perry district court’s landmark ruling on that issue would have virtually no effect on subsequent cases?
Perhaps. But upon closer study of the opinion, I came to believe that the court’s explanation of the sex-discrimination theory, while bold in some respects, is simply too truncated, too fragmented, and too incomplete to garner the serious attention it would otherwise deserve. The ruling that Proposition 8 discriminates based on sex looks like an after-thought, inserted after an already compelling ruling on other issues was complete. Given the weight of authority that existed against the sex-discrimination theory, it would have taken a more comprehensive treatment of the issue for the court’s analysis of it to have any meaningful impact on subsequent cases.
This is not to say that the future of the sex-discrimination theory depended on Perry alone; needless to say, many factors contribute to a theory’s success or failure. But Perry is an important case, and it is one of few to accept the sex-discrimination claim; therefore, its manner of doing so should not be deemed in-significant. It should, however, be considered a disappointment.
In this brief comment on Perry, I will offer a critique of the way the district court handled the sex-discrimination claim. To do so, I will first briefly sketch out some of the most common arguments advanced by advocates pursuing the claim. I will then point out where the district court in Perry adopted or approximated those arguments, and where it missed, misplaced, or mishandled them.
The purpose here is not to provide a complete or even thorough defense ofthe sex-discrimination theory itself, much less convert those who reject it. Given space constraints, I assume that the reader is, like Chief Judge Walker and myself, sympathetic to the claim that prohibitions on same-sex marriage constitute a form of sex discrimination. I aim to demonstrate, however, that even though the district court drew renewed attention to the often-maligned sex-discrimination theory, its analysis of that issue does not provide an adequate or appropriate model for advocates, litigants, and jurists hoping to advance the theory in other cases or other areas of litigation, including on appeal in Perry itself.
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