For same-sex couples in Wisconsinmany of whom have been in loving, committed relationships for decadesit's been frustrating to watch marriage arrive in state after state, including several other states in the MidwestIowa in 2009, Minnesota in 2013, and most recently in Illinois, where a federal judge found Illinois' current marriage law unconstitutional and ordered a county clerk to begin issuing marriage licenses months ahead of the effective date of Illinois' newly-passed law in Lee v. Orr. An Ohio federal court ordered state and local government officials to recognize out-of-state marriages for purposes of issuing death certificates in Obergefell v. Wymyslo, and a decision is expected soon in the DeBoer v. Snyder case in Michigan where the trial testimony has exposed yet again the complete absence of any legitimate governmental interests served by denying marriage to same-sex couples.
Looking outside the Midwest, in just the last three months, federal courts in four states Oklahoma, Utah, Virginia, and Texashave invalidated state laws and constitutional amendments that denied same-sex couples the freedom to marry. Additionally, in Bourke v. Beahear a federal court in Kentucky invalidated that state's prohibition on the recognition of the out-of-state marriages of same-sex couples. According to news reports, more than one thousand couples in Utah were able to marry before the US Supreme Court granted a stay in Herbert v. Kitchen.
The wind in the sails of these most recent decisions striking down marriage bans is the US Supreme Court's holding last year in Windsor v. United States, in which the court struck down Section 3 of the federal Defense of Marriage Act, or DOMA, which prohibited the recognition of legal marriages between same-sex spouses for purposes of federal spousal protections and obligations. The court in Windsor found that DOMA violated the Equal Protection Clause of the Fifth Amendment by "plac[ing] same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects."
But while Windsor may have paved the way for these recent decisions (and most likely stiffened judicial spines), the equal protection reasoning in Windsor does not explicitly address all the reasons why a law that discriminates against same-sex couples is unconstitutional. The other courts deciding the pending marriage cases will need to fill in the rest. In particular, lower courts must recognize (as a few have already) that a marriage ban discriminates not just on the basis of sexual orientation, but also on the basis of sex.
In Kitchen v. Herbert, the court recognized that Utah's marriage ban classified not only on the basis of sexual orientation, but also on the basis of sex. It found that Utah's marriage ban discriminates on the basis of sex, "because it prohibits a man from marrying another man, but does not prohibit that man from marrying a woman." Even though the ban affects women in the same way, the symmetry of discriminatory treatment of men and women under marriage bans does not change the law's essence as sex classification, which prevents gay men and lesbians from marrying the person they most love in the world because of their sex.
But the Kitchen court stopped short of offering a full explanation for the sex discrimination inherent in laws that prevent lesbian and gay couples from marrying. More than forty years ago, in Frontiero v. Richardson, a plurality of the Supreme Court struck down a law requiring a female Air Force officer to prove her husband's dependence on her to receive certain benefits made available to male married service members without any proof of their wife's dependence. In doing so, the plurality quoted from one of the court's earlier opinions, Bradwell v. Illinois in which the court had reasoned that "[m]an is, or should be, women's protector and defender" and that "[t[he paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother." The Frontiero court acknowledged that "[a]s a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinction between the sexes." Since then, the court has repeatedly recognized that classifying people on the basis of generalized notions about the proper roles of men and women constitutes sex discrimination. In Price Waterhouse v. Hopkins the court stated: "In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender."
Like the law at issue in Frontiero, marriage bans discriminate on the basis of sex, because they are founded on overbroad gender stereotypes about the expected roles of men and womenas well as their preferences and skill sets. Denying same-sex couples the freedom to marry enforces the stereotype that men should marry women, and women should marry men. It also enforces a stereotype that a family consists of two parents of different genders.
A person could reasonably ask why these sex discrimination arguments should matter so long as courts are overturning marriage bans on some basis. But they do matter. They matter because recognizing and pointing out sex discrimination and especially sex stereotyping when it occurs helps to bring to light the latent prejudices that are still at work around us. Some people still fail to see the connection between the gender stereotypes motivating the laws and employment practices the courts have previously identified as discriminatory and those motivating bans that prevent lesbians and gay men from marrying. But most of us have heard first-hand the anti-gay comments aimed at persons whose conduct fails to comport with stereotypical notions of masculinity or femininity. In his article (PDF) "Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination," Andrew Koppelman stated: "The two stigmas, sex-appropriateness and homosexuality, are virtually interchangeable, and each is readily used as a metaphor for the other." Gender-based stereotypes are a central part of the arguments asserted for the marriage bans, including marriage's alleged promotion of the "ideal" of "gender-differentiated parenting because the contribution of fathers to child-rearing is unique and irreplaceable."
Wisconsin long ago took steps to overcome certain sex-based distinctions in its marriage laws and has also made important progress in addressing discrimination against lesbians and gays and same-sex couples. Wisconsin was, for example, one of the first states to pass laws to protect the property rights of married women and by the early twentieth century had definitively ended many other legal restrictions on a married woman's ability to exercise financial independence from her husband. It also passed the very first state law to prohibit discrimination on the basis of sexual orientation put into place a state-wide domestic partner law in 2009 that offers several important protections to same-sex couples who register, and elected the first lesbian or gay US Senator. Still, it has got an expansive constitutional amendment banning marriage and anything substantially similarwhich is the basis of a challenge pending in the Wisconsin Supreme Court of the limited domestic partner benefits currently available. Moreover, Wisconsin has a criminal law that makes it a crime to leave the state to contract a marriage that would be void or prohibited there.
Identifying the connections between the prejudices motivating laws, including marriage laws, that burdened women for so many years and laws that ban marriage for same-sex couples helps us to understand why people respond the way they do to lesbians and gay men, transgender people, and even stay-at-home fathers and successful women. Gender stereotypes are powerful, and bringing them out into the open takes away some of their power. Wisconsin has made such great progress over the years in fighting both sex and sexual orientation discrimination, and putting an end to its ban on marriage for lesbian and gay couples would represent an important breakthrough on both fronts.
A Wisconsin federal court will soon have to address these sex discrimination arguments in Wolf v. Walker, a challenge to that state's constitutional amendment excluding same-sex couples from marriage. The court has an opportunity to advance the law supporting the freedom to marry by finding that Wisconsin's marriage ban discriminates on the basis of sex both by limiting a person's liberty to marry the person of his or her choice based on sex and by enforcing sex stereotypes. That would get us closer not only to ending unconstitutional barriers to marriage for lesbians and gay men, but also to exposing the full range of harm that these laws inflict.
Gretchen Helfrich is an Associate in the Litigation and Dispute Resolution Practice at Mayer Brown LLP in Chicago. She is cooperating counsel for plaintiffs in Wolf v. Walker. John Knight is a staff attorney with the American Civil Liberties Union LGBT Project.
Suggested citation: Gretchen Helfrich, Wolf v. Walker: Fighting for Marriage throughout the Midwest, JURIST - Sidebar, April 2, 2014, http://jurist.org/sidebar/2014/04/helfrich-knight-midwest-same-sex-marriage.php.
This article was prepared for publication by Alexandra Cabonor, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to her at firstname.lastname@example.org