On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination. On the other hand, from opponents’ perspective, the point is that “marriage” has been defined for several thousand years in Judeo-Christian culture as between a man and a woman, and retaining that definition is not sex discrimination.
Imagine, for example, that having a bar mitzvah in Israel provided boys with various and important rights and obligations. [Let me tighten the hypothetical a bit.] Imagine that in Israel, any thirteen year old Jewish boy could go to city hall and get a certificate of bar mitzvah, regardless of whether he had a religious bar mitzvah ceremony, and imagine further that this certificate provides the boys who get it with various important rights and privileges. Israel, recognizing that girls should be entitled to analogous rights, offers girls a [certificate of] bat mitzvah instead. The bat mitzvah gives girls the same legal rights and obligations as boys, but because it’s not called a bar mitzvah, it’s less culturally significant and, according to critics bespeaks inequality (and in fact, while bar and bat mitzvahs don’t confer legal rights and obligations in Israel, it’s an important religious and cultural tradition. Girls don’t always get a bat mitzvah, and when they do, it’s rarely celebrated with the same vigor or considered as significant as a bar mitzvah in the same family).
A girl sues, demanding that she be entitled to a legally recognized “bar mitzvah.” On the one hand, Ilya could rightly claim that by definition, denying her access to the status of “bar mitzvah” is sex discrimination. On the other hand, defenders of limiting legally recognized bar mitzvahs to boys would rejoin that bar mitzvahs by definition, backed by hundreds of years of tradition and culture, are solely for males.
It strikes me that both sides have a point, and most likely the best thing for courts to do under such circumstances, where they’d basically just have to take sides in a culture war pitting feminists against religious and cultural traditionalists, is to stay out of it–so long as analogous rights and obligations are available to the plaintiff through an analogous
ceremony certificate, in this hypo the bat mitzvah.
Disclaimer: While I don’t think that courts should recognize a right to same sex marriage by finding that the absence of such a right is sex discrimination, nor do I think courts should even take the position that is must be analyzed as sex discrimination, I support legislation providing for same-sex marriage. I’ll also add the disclaimer that I’m not addressing any other constitutional arguments that states must expand their definition of marriage to include same-sex couples.
UPDATE: Let’s add an interesting hypo to the mix: what if California, instead of having a domestic partnership law, instead created a new legal category called “same sex marriage” that had exactly the same rights and privileges as “marriage”, but every relevant statute that applied to marriage now applies to “marriage and ‘same-sex’ marriage”, or perhaps “‘traditional marriage'” and “‘same sex marriage'”. Still sex discrimination if same sex couples aren’t eligible for “traditional marriage”? Again, I think that by definition the answer is yes, and by definition the answer is no.
FURTHER UPDATE: New hypo: A small European nation has a constitution that bans any form of sex discrimination. The King (who has only ceremonial duties) dies. His daughter is next in line for the throne. Even though she’d have the same legal rights, duties, and privileges either way, she demands to be crowned King, not Queen. She points out that it’s sex discrimination that only men can be called “King”, argues that she will likely get less respect from her subjects if she is called Queen instead of King, and that the distinctions between “King” and “Queen” are rooted ancient patriarchy. Valid sex discrimination claim? Once again, my instincts are that (a) this, by definition is sex discrimination [or, more precisely, a classification based on sex and therefore subject to intermediate scrutiny under American law]; and (b) this, by definition, is also NOT sex discrimination, and if I were a judge I’d stay out of it.
RESPONSE TO ILYA: Ilya starts his response by misapprehending my point. It’s not that marriage is “traditionally” between a man and a woman, and therefore limiting marriage to such is not sex discrimination. It’s that the very definition of the word “marriage” has, for hundreds or even thousands of year, been limited to relationships between men and women. Therefore, the argument would be that it’s not sex discrimination to limit the scope of state-recognized marriage to what comes within that definition, just like, e.g., it’s not sex discrimination to limit the title of King to men. [And I want to reiterate that I agree that limiting marriage to opposite sex couples can accurately be described as sex discrimination; the question is whether it can also be accurately described in a different way, and if so, whether courts should stick their collective noses in the controversy by choosing which description they prefer.]
And if I’m following Ilya’s logic correctly, it would have been sex discrimination to limit the title of King to men, say, fifty years ago, when the title of Queen may have been considered relatively less important, but it’s not sex discrimination today. I don’t buy it. It was, by the logic of Ilya’s original post, sex discrimination then and it is discrimination now to limit the title King to men, but it also was just what the word “King” meant then and now, and therefore not sex discrimination.
If indeed the problem, as Ilya suggests, is that “civil union” doesn’t have the same cultural heft as “marriage,” then I think the argument is that everyone has the fundamental right to get “married,” which is a different argument for constitutionalizing for same sex marriage, and one that I don’t address.
FINAL UPDATE: When I say that marriage “by definition” has been a relationship between a man and a woman, I don’t mean that the government defined it that way. Rather, the institution evolved, largely outside formal government, to bind a man and woman together into a long-term procreative relationship. The fact that marriage is often NOT procreative these days (older couples and so on), and the core societal idea of marriage has shifted from pragmatic concerns to “life partner” are good policy arguments in favor of allowing gay marriage. I don’t think it’s a good argument for denying the fact that the history of marriage and its relationship to the definition makes the equal protection constitutional argument somewhat dubious, as the definition was a result of the core purpose of the institution. This is quite distinct from the example Ilya gives: “if the definition of marriage had, for many years, been that it is a relationship between members of the same race, a law embodying that definition would still be an example of racial discrimination.” The underlying purpose and therefore definition of marriage from thousands of years had nothing to do with race. So I agree that if, say, in the 17th century, instead of simply banning interracial marriage, a statute had simply defined marriage as not including interracial pairings that would be clear racial discrimination, even if “traditional”. By contrast, marriage was an existing form of male-female relationship that the state came to recognize (concubinage was another that has since died out) so it wasn’t the state creating a sex distinction, it was the state recognizing a preexisting institution.