Archive | Sex Discrimination

New Mexico Supreme Court Strikes Down State Law Limiting Marriage to Opposite-Sex Couples

In today’s decision in Griego v. Oliver, the New Mexico Supreme Court struck down state laws that limit marriage to opposite sex couples. I welcome the result, but would have preferred that the court based its decision on the ground that laws banning same-sex marriage discriminate on the basis of gender.

The court ruled that the laws discriminate on the basis of sexual orientation, and that laws discriminating against gays and lesbians must be subject to heightened intermediate scrutiny “because the LGBT community is a discrete group that has been subjected to a history of purposeful discrimination, and it has not had sufficient political strength to protect itself from such discrimination.” Ruthann Robson has a good summary at the Constitutional Law Prof Blog. The court based its decision on the New Mexico state Constitution rather than the federal constitution, so it almost certainly will not be reviewed by the federal Supreme Court. New Mexico has thereby become the 17th state to recognize same-sex marriage.

Although the court ruled that bans on same-sex marriage are unconstitutional, it rejected the alternative argument that they violate the state constitution because they discriminate on the basis of sex, even though the New Mexico state constitution includes an Equal Rights Amendment that forbids sex classifications unless they have a “compelling justification.” Here is the court’s reasoning on that point:

We do not agree that the marriage statutes at issue create a classification based on sex. Plaintiffs have conflated sex and sexual orientation. The distinction between same- gender and opposite-gender couples in the challenged legislation does not result in the unequal treatment of men and women. On the contrary, persons of either gender are treated equally in that they are each permitted to marry only a person of the opposite gender. The classification at

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Support for So-Called “Honor Killings”

The Pew Forum’s survey of international Muslim attitudes asks, among other things,

Some people think that if a woman engages in premarital sex or adultery it is justified for family members to end her life in order to protect the family honor. Do you personally feel that this practice is [often justified, sometimes justified, rarely justified, or never justified].

It also asks the same question about men engaging in premarital sex or adultery.

The results:

(1) There’s a vast range of attitudes on the subject in various countries, with “never justified” ranging from just over 80% (in Azerbaijan, Kazakhstan, and Indonesia) to just under 25% (in Afghanistan and Iraq).

(2) In most countries, the respondents’ answers as to “honor killing” of women is very close to their answers as to men, including in many of the countries where there’s a lot of support for such killings. Only a few countries had statistically significant differences, ranging from 47% (81% believe that “honor killing” of men is never justified but only 34% believe that as to women) in Jordan, 10 or 11% in Iraq and Egypt, 7% in Russia, and 14% in the opposite direction in Uzbekistan.

(3) Though the Pew report states, “The Quran and hadith do not condone honor killings, that is, taking the life of a family member who has allegedly brought shame on his or her family,” in a substantial minority of the surveyed countries attitudes towards “honor killings” are significantly correlated to support for imposing Sharia law.

(4) Support for such “honor killings” is shockingly high in some countries. In Afghanistan, for instance, 37% of Muslim respondents say that such killings of women are “often justified,” and 23% say “sometimes justified.” In Iraq, 44% say “often” and 16% say “sometimes.” In Bangladesh, Egypt, Jordan, Lebanon, Pakistan, [...]

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Women at the Western Wall in Jerusalem

The Jerusalem Post reports (thanks to Prof. Howard Friedman (Religion Clause) for the pointer):

In a groundbreaking ruling, the Jerusalem District Court upheld an earlier decision of the magistrate’s court that women who wear prayer shawls (“tallitot” in Hebrew) at the Western Wall Plaza are not contravening “local custom” or causing a public disturbance, and therefore should not be arrested.

The issue of equal prayer rights at the site has risen to the forefront of public debate in recent months due to the frequent arrests of women participating in the prayer services that the Women of the Wall activist group holds there….

The Regulations for the Protection of Holy Places to the Jews, dating from 1981, forbid performing religious ceremonies that are “not according to local custom” or that “may hurt the feelings of the worshipers” at the site, where local custom is interpreted to mean Orthodox practice.

These regulations and their interpretation, which a Supreme Court ruling upheld in 2003 and a Justice Ministry directive reiterated in 2005, have been the legal basis for the regular arrests of women who perform Jewish customs at the Western Wall that are usually practiced only by men in Orthodox Judaism….

[But] Judge Moshe Sobell … ruled that the definition of “local custom” did not automatically mean Orthodox practice… In reference to the charges of causing a public disturbance and disturbing the peace, Sobell ruled that even if the women had behaved in a way that was disruptive, they were in no way suspected of violent or verbal behavior that would either disturb the peace or endanger the public.

I take it there’ll be further litigation on this, given the apparent conflict with the earlier Supreme Court ruling. I blogged about the issue last year, so I thought I’d note this new [...]

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New Scholarship on Originalism and Discrimination

For a long time, the conventional wisdom among legal scholars has been that an originalist interpretation of the Fourteenth Amendment would require courts to uphold laws that discriminate against women and laws banning interracial marriage. While these arguments were once advanced by defenders of sexism and Jim Crow laws, today they are usually used as justification for rejecting originalism itself rather than for rejecting court decisions such as Loving v. Virginia, which struck down anti-miscegenation laws. At the same time, most scholars have also argued that the original meaning of the Amendment permits states to adopt affirmative action programs.

Recent scholarship has called this conventional wisdom into serious question. In 2011, Northwestern law professor Steven Calabresi and Julia Rickert published an important article outlining an originalist case for striking down laws that discriminate on the basis of sex. More recently, both Calabresi (with Andrea Matthews) and David Upham have published originalist defenses of the result in Loving.

Just a few days ago, Michael Rappaport posted this paper questioning the conventional wisdom on originalism and affirmative action (which I myself questioned much less thoroughly here). It is not my view that the original meaning of the Fourteenth Amendment clearly requires courts to strike down all affirmative action programs. But the application of the original meaning to these programs is far from being as clear as the conventional wisdom suggests.

I don’t think the work of Calabresi and his coauthors, Rappaport, and Upham will definitively end the debate over originalism and discrimination. Critics of originalism will likely develop rebuttals to their arguments. But this new wave of scholarship does mount a strong challenge to the previously dominant conventional wisdom. [...]

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Reading the Tea Leaves in the Proposition 8 Same-Sex Marriage Oral Argument

Most commentators, including the VC’s own Dale Carpenter, have concluded after the Proposition 8 oral argument that the Supreme Court is unlikely to strike down the California law banning gay marriage. I predicted such an outcome last year, and in this recent post, pointing out that the Supreme Court is unlikely to announce a nationwide right to gay marriage at a time when 41 states still deny it, and that there is no logical way for the Court to justify a “minimalist” decision that would apply to California alone.

Nonetheless, I think many people have been too quick to bury the anti-Proposition 8 cause after Tuesday’s argument. I agree with Dale and others that the Court may well dismiss the case on standing grounds. But if it reaches the merits, it is far from certain that Proposition 8 will survive. As most experts agree, the four liberal justices are likely to vote to strike down Proposition 8. So they would need to pick up only one conservative justice to get a majority. The key swing voter, Justice Anthony Kennedy, expressed skepticism about some of the plaintiffs’ arguments. But he also suggested he is considering the possibility that Proposition might constitute sex discrimination, in which case it would be subject to heightened “intermediate” scrutiny that it probably cannot survive. Moreover, he expressed concern about the 40,000 children being raised by gay and lesbian couples in California. Finally, it is difficult to gauge the impact on Kennedy of a striking concession made by Charles Cooper, the lawyer defending Proposition 8:

JUSTICE SOTOMAYOR: Outside of the -­ outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?

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How to Figure Out When Laws Banning Same-Sex Marriage Became Unconstitutional and Why the Precise Date May Not Matter

At today’s Proposition 8 oral argument, Justice Scalia asked Ted Olson, the lawyer for the plaintiffs, “when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?” The intuition behind Scalia’s question is that if a law would not have been unconstitutional on the day the Fourteenth Amendment was adopted, it cannot be unconstitutional under that Amendment at all.

But the latter doesn’t necessarily follow from the former. Laws that are constitutional at Time X can easily be unconstitutional at Time Y if relevant factual circumstances have changed. This is true not only under “living Constitution” theories, but even under originalism.

I. Originalism and Changing Circumstances.

How could this be so? Whether a law violates the original meaning of the Constitution depends not just on the words of the text, but on relevant factual circumstances. For example, the Fourth Amendment bans “unreasonable” searches and seizures. Whether a search is reasonable depends at least in part on the state of technology, the likelihood that the search will catch a criminal, and other factual circumstances. As technology changes and our knowledge increases, a search that could be considered reasonable at Time A might not be reasonable at Time B, even though the meaning of the Fourth Amendment has not changed at all.

The constitutionality of sex discrimination is a particularly telling example. Steven Calabresi and Julia Rickert have shown that the original meaning of the Fourteenth Amendment constrains discrimination against women if that discrimination lacked a compelling rationale beyond a desire to subordinate them as an inferior “caste.” But 19th century understandings of biology and social science led most people to believe that a wide range of laws discriminating against women were constitutional because they were rational responses to fundamental differences between the [...]

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Justice Kennedy on Proposition 8 and Sex Discrimination

In today’s Proposition 8 oral argument on the constitutionality of California’s law banning same-sex marriage, Justice Anthony Kennedy – a key swing voter on the Court – asked whether such a law qualifies as sex discrimination, which he called a ” a difficult question that I’ve been trying to wrestle with”:

JUSTICE KENNEDY: Do you believe this can be treated as a gender-based classification?

MR. COOPER: Your Honor, I -­

JUSTICE KENNEDY: It’s a difficult question that I’ve been trying to wrestle with it.

Charles Cooper, the lawyer for the defenders of Proposition 8 went on to assure Kennedy that it isn’t a gender-based qualification, but didn’t really explain why not. It’s not clear whether Justice Kennedy was satisfied with his answer, because another justice quickly shifted the focus to a different issue.

The issue of whether Proposition 8 qualifies as sex discrimination is indeed “a difficult question” in the sense that the idea seems counterintuitive to many. But once you consider how laws such as Proposition 8 actually work, it’s hard to avoid the conclusion that they clearly do discriminate on the basis of gender, both as a matter of logic, and under the Supreme Court precedent defining sex discrimination. I explained why here:

[A] same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And it is perfectly possible to discriminate on the basis of sex even if the motivation for doing so is something other than sexism.

Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely

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The Supreme Court’s Options in the California Same-Sex Marriage Case

Georgetown law Professor Marty Lederman has a very helpful post outlining the Supreme Court’s options in the case challenging the constitutionality of California’s Proposition 8, which bans same-sex marriage in the state:

[T]hese are the five options offered to the Court:

(i) The Court could uphold the constitutionality of Proposition 8 — that is, hold that states may limit the civil institution of marriage to opposite-sex couples.

(ii) The Court could conclude that the Fourteenth Amendment categorically prohibits states from discriminating against same-sex couples in the conferral of marriage licenses–the so-called “fifty-state holding” (although it would have a practical impact only on the forty-one states that continue to prohibit same-sex marriage).

(iii) Without reaching the question whether a state could justify denying to same-sex couples substantial benefits and privileges that it offers to opposite-sex couples, the Court could conclude that once a state has offered same-sex couples all or virtually all of the incidents of marriage that it offers to similarly situated opposite-sex couples, there is no legitimate justification for denying those couples the status of “marriage” itself . . . and that therefore it is fair to conclude that such a denial is designed only to stigmatize, or to deny respect, on the basis of sexual orientation, which the Constitution forbids. This is the so-called “eight-state solution” suggested by the United States today, which would directly affect only those states (California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island) that already treat same-sex couples the same as opposite-sex couples in virtually all ways but one.

(iv) A California-only holding: The Court could hold, as did the court of appeals…, that where a state has afforded same-sex couples all or virtually all of the incidents of marriage that it offers to similarly situated opposite-sex couples,

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Women in Combat and the Constitutionality of Male-Only Draft Registration

The Pentagon’s recent decision to open up combat roles to women has led legal scholar Gerard Magliocca wonder whether our current system of male-only draft registration is still constitutional. Conservative commentator Dave Carter predicts that the courts will rule that it is not, and women will be made subject to the draft.

In the 1981 case of Rostker v. Goldberg, the Supreme Court upheld the constitutionality of male-only draft registration in part because women were barred from combat roles, and female draftees are therefore less valuable to the military than male ones would be. In the thirty years since then, more and more combat roles have been opened up to women, and the Pentagon’s most recent decision is likely to eliminate most if not all remaining gender-based restrictions. So that rationale for a male-only draft is undercut.

But then-Justice William Rehnquist’s majority opinion also relied heavily the courts’ “lack of competence” on national security issues and the consequent need for “healthy deference to legislative and executive judgments in the area of military affairs.” That deference might justify upholding male-only draft registration even if all or most combat positions are open to women. The federal government could argue that, in the expert judgment of the military, few women have the strength and endurance needed for many combat positions, even if they are not categorically barred from them. Thus, female draftees might still be less useful to the military than male ones. A court applying “healthy deference” might choose not to contest that assertion.

Lower courts applying Rostker could therefore still conclude that male-only draft registration is constitutional, though Rostker is ambiguous enough on the amount of deference due that the issue is not a slam dunk. If the issue gets to the Supreme Court however, I’m far from certain that [...]

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Women and the Draft

The Pentagon’s recent decision to abolish most restrictions on women serving in combat leads conservative commentator Dave Carter to worry that women will now be subject to the military draft:

It was 22 or 23 years ago, I think, that I wrote in the Air Force Times a cautionary article on the combat exclusion that prohibited women from joining front line combat units. My concern then, as now, was that lifting the combat exclusion would removed the only remaining barrier to our daughters, wives, moms, and sisters being eligible for a military draft….

In 1982, the Supreme Court ruled in Rostker v. Goldberg, that the requirement for males to sign up for Selective Service was constitutional precisely because women were excluded from serving in front line combat units. “The court ruled that the Selective Service process is designed to assemble combat-ready people, and right now women are excluded from combat arms,” said Professor Anne Coughlin, of the University of Virginia School of Law in Charlottesville. “Therefore,” she said, “they can’t participate in the very thing that the draft is for.” But that was then. Now, retired Colonel Peter Mansoor, a former US Army brigade commander and veteran of two tours of duty in Iraq, currently a professor of military history at Ohio State, says, “If women are acceptable to serve in combat, they are acceptable to serve whether they volunteer or not. You can’t have the frosting on the cake and not the cake underneath….”

It speaks volumes that the party of young men who once gleefully burned their draft cards has degenerated into the party of old men who declare their daughters and granddaughters eligible for the draft. But to do so in Orwellian tones of, “…moving forward with a plan to eliminate all gender-based barriers to service,”

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Can a State University Have a Women-Only Student Lounge?

Michigan State University apparently has a women-only student lounge — a room for studying, not a restroom or a locker room. A reader asked whether this is permissible; the answer is pretty clearly no, given the Court’s modern Equal Protection Clause jurisprudence.

Sex classifications are impermissible under the Court’s precedents unless they are backed by an “exceedingly persuasive justification“; it’s hard to see such a justification for a women-only lounge, especially (but not only) if no men-only lounge is available. And that the discrimination is as to something quite minor — access to a room, and not to the university as a whole or an educational program within the university — doesn’t matter when it comes to the Equal Protection Clause. (It’s also possible that the existence of the lounge violates federal statutes and state statutes or state constitutional provisions, but I set that aside for purposes of this post.) [...]

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When Parents Disagree, Should Child Bear the Mother’s Last Name or the Father’s?

Veronica Goudreau and Andrew Lemieux conceived a child, Alexander. (As it happens, they were minors, in high school, but that needn’t matter for the legal analysis.) They then broke up, but Lemieux wants to help raise the child.

When the child was born, Goudreau named the child Alexander Bailey Goudreau. But when the child was a year old, the father (represented by his parents as plaintiffs) asked that the child’s name be changed to Alexander Bailey Lemieux. The court renamed the child Alexander Goudreau Lemieux, reasoning,

The court makes it[s] decision based on the best interests of Alexander. Alexander has two parents who both care for him and love him. Andrew Lemieux’s commitment to Alexander should be demonstrated in Alexander’s name, as should Veronica Goudreau’s.

And on appeal, the New Hampshire Supreme Court (In re Name Change of Alexander Goudreau (N.H. Oct. 30, 2012)) agreed:

[W]e hold that the trial court sustainably exercised its discretion in changing the child’s name to Alexander Goudreau Lemieux. The record supports the trial court’s findings that, at the time of the petition’s filing, both mother and father cared for, loved, and were committed to Alexander — findings which mother does not challenge on appeal. Accordingly, we conclude that the trial court had an objective basis sufficient to sustain its conclusion that Alexander’s full name should include both parents’ surnames. On appeal “[w]e consider only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made, and we will not disturb the trial court’s determination if it could reasonably have been made.” Although additional fact finding might have aided our review of the trial court’s order, we conclude that the trial court could reasonably have found that the name Alexander Goudreau Lemieux was in the child’s best interest.

But, accepting [...]

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Does DOMA Discriminate on the Basis of Sexual Orientation, Gender, or Both?

Today’s Second Circuit decision striking down a part of the Defense of Marriage Act holds that laws discriminating on the basis of sexual orientation are subject to heightened “intermediate” scrutiny.

But it is not clear that DOMA actually discriminates on the basis of sexual orientation, as opposed to gender. As I explained in the context of state laws banning same-sex marriage, these policies actually restrict marriage based on gender, not orientation:

Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because he is a man. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination.

By contrast, sexual orientation actually has no effect on the way the law operates. Anne is still allowed to marry Colin, even if one of them happens to be gay or lesbian. Bob is denied that right regardless of his sexual orientation. There are actually lots of real world cases where gays or lesbians have entered into opposite-sex marriages, such as the famous example of former New Jersey Governor James McGreevey, a closeted gay man who was married to a woman for many years. McGreevey’s marriage was not illegal, even if his actions were morally dubious.

This point applies to DOMA as well. DOMA does not distinguish between marriages based on the sexual orientation of the partners. If Anne, a lesbian, is legally married under state law to Bob, a gay man, they will qualify as married under DOMA. By contrast, if two straight men enter into a same-sex marriage [...]

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Law Professor Calls for Denying Tax Exemptions to the Catholic Church, Orthodox Synagogues, and Other Groups That Discriminate Based on Sex

See Caroline Mala Corbin, Expanding the Bob Jones Compromise, in Matters of Faith: Religious Experiences and Legal Responses in the United States (forthcoming, Cambridge University Press). This isn’t the first such call, but it still struck me as noteworthy. Indeed, the rationale — that exemptions are generally denied to racially discrimination groups, so they should also be denied to groups that discriminate based on sex (for instance, in choice of clergy) — suggests that similar arguments would likely be made in the future as to groups that exclude gays and lesbians from the ministry as well. And conversely the argument that sex orientation discrimination is just like race discrimination, if accepted, will strengthen the appeal of the arguments that sex discrimination is like race discrimination, too, and should be just as marginalized as race discrimination even in matters such as the selection of priests and rabbis.

I should note that I don’t think such a denial of tax exemptions to sex-discriminatory groups — if applied generally to all groups, religious and secular — would be unconstitutional; see Freedom of Expressive Association and Government Subsidies, 58 Stan. L. Rev. 1919 (2006). Just as the government may deny tax exemptions to groups that engage in First-Amendment-protected electioneering, and substantial amounts of First-Amendment-protected lobbying, and just as it may deny funding for constitutionally protected abortions and access to government property for constitutionally protected abortions, so it may deny tax exemptions to groups that engage in discrimination that’s protected under the First Amendment’s religious association or expressive association protections.

But I think such proposals are bad policy, and are contrary to the worthy American tradition of religious pluralism and tolerance. When the government (federal, state, and local) spends over 1/3 of the gross domestic product, and when tax exemptions [...]

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Higher Registration Requirements for Male Sex Offenders Who Committed the Offense Against a Male Victim

803 Code Mass. Regs. § 1.40(9)(c)(2) provides that, in determining a sex offender’s likelihood of recidivism — which in turn bears on what sort of registration requirements apply to the sex offender — one factor should be whether the offender is a “male offender who commits a sex offense, as defined in M.G.L. c. 6, § 178C, against a male victim. This demonstrates the degree of sexual deviance associated with this offender (Hanson & Bussiere, 1998; Hanson & Bussiere, 1996; Freund & Watson, 1991).” Doe v. Sex Offender Registry Board (Mass. 2008) upheld this against an Equal Protection Clause challenge (paragraph break added):

In determining the plaintiff’s likelihood of recidivism and degree of dangerousness, the hearing examiner also considered the fact that the plaintiff’s victim was a male. Title 803 Code Mass. Regs. § 1.40(9)(c)(2) advises that among the elements to consider in assessing the nature of a particular sex offense is whether the offense was committed by a male offender on a male victim. The plaintiff claims that the hearing examiner’s application of this regulation to his case penalized him for being homosexual in violation of his equal protection rights. This claim has no merit.

The equal protection analysis under both the State and Federal Constitutions is the rational basis test. The challenged regulation was drawn from findings of sex offender experts (as cited in the regulation) in order to assist the board in determining more accurately a sex offender’s risk to reoffend and level of dangerousness. Prefatory language to the regulation explains: “Much can be learned about an offender by studying the nature of the offenses he has committed…. Based on its review of the research, the [b]oard found the presence of deviant sexual interests dramatically increases the risk of reoffending and that the strongest deviant sexual interests

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