GAY MARRIAGE BAN WOULD AMOUNT TO SEX DISCRIMINATION: Susan Frelich Appleton

On Tuesday, other Missouri citizens and I will vote on a proposed constitutional amendment designed to ban same-sex marriage. In coming months, citizens in several other states will vote on similar proposals.

Despite all the communications I have received from various advocacy groups urging me to vote "no," I have not heard the argument that resonates most powerfully for me. These messages all emphasize how the proposed amendment discriminates against the gay and lesbian members of our community (a purpose and effect that I abhor). None has mentioned, however, that I should vote "no" because of the sex discrimination embodied in the following language: "That to be valid and recognized in this state, a marriage shall exist only between a man and a woman."

Think about it: Under the amendment, a person's ability to marry depends on that person's sex and the sex of the proposed spouse. So, for example, Jane is denied the opportunity to marry Jill--an opportunity that is available to Jack. In any other setting, a law that makes one's eligibility for a state-granted opportunity depend on whether the individual is a man or a woman is considered sex discrimination.

It's tempting to rationalize this discrimination by claiming that the proposed amendment treats men and women the same. Both are denied the opportunity to marry a person of the same sex. But the Supreme Court dismissed the "equal application" argument around 40 years ago when it invalidated prohibitions on interracial marriage. Although such prohibitions barred blacks and whites alike from marrying across racial lines, the court said the racial classification itself denied equal protection of the laws.

In addition, in condemning prohibitions on interracial marriage, the court said we must look at the context--a system of white supremacy. The history of marriage, and of family law more generally, also reflects systematic discrimination--discrimination subordinating women while also limiting the freedom of men. ...

For example, the state can no longer presume that only young men need education to prepare for the role of "provider" or that only husbands should control the marital property. Similarly, the state cannot presume that mothers always make the best custodians for young children or that only women should get parental leaves from employment. Principles of equality are replacing old stereotypes to provide fair treatment of women in economic matters, to recognize men as nurturing parents and to condemn family violence.

I believe that many share my positive view of these legal developments, which go far toward eliminating the discrimination and stereotypes previously captured by the terms "husband" and "wife."

The proposed constitutional amendment, however, sends a very different message. It would enshrine an explicit sex-based classification in our constitution. It signals that the law regards "wife" as a role open only to women and "husband" as a role open only to men. It breathes new life into old stereotypical generalizations. It threatens women's move toward equality, given the way sex-based classifications have historically been used to relegate women to a second-class status. It also threatens the gains that men have made toward full participation as caregiving parents.

I am not the first to make this argument. Several legal scholars (most notably Andrew Koppelman, Sylvia Law and Cass Sunstein) have elegantly developed this line of reasoning. ...

Besides, a focus on stopping sex discrimination and gender stereotypes eliminates distracting and silly predictions that polygamy and incestuous unions will come next. Polygamy and incest are not practices that follow from the equal treatment of women and men, but instead practices that often reflect the subordination and exploitation of women.

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posted by Eve at 11:47 PM VOTE

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