Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence

47 Pages Posted: 7 Nov 2007 Last revised: 21 Apr 2010

Deborah A. Widiss

Indiana University Maurer School of Law

Elizabeth Rosenblatt

Whittier Law School

Douglas NeJaime

Yale University - Law School; University of California, Los Angeles (UCLA) - School of Law

Date Written: April 19, 2010

Abstract

This article examines sex discrimination arguments in recent same-sex marriage cases. Since 1993, when the Hawaii Supreme Court held in Baehr v. Lewin that denying same-sex couples the right to marry could state a claim of sex discrimination, every state high court to consider the issue has rejected the claim. But many recent decisions have in fact relied upon sex-based stereotypes to justify marriage restrictions. These include claims that men and women, simply by virtue of their gender, provide distinct role models for children; that men and women play "opposite" or "complementary" roles within marriage; and that marriage is essential to protect "vulnerable" women from "irresponsible" men who, absent marriage, would not provide support to their children. Comparable sex stereotypes underlie other government policies, such as marriage promotion, responsible fatherhood initiatives, and abstinence-only education programs, that similarly privilege "traditional" heterosexual marriage to the exclusion of all other forms of family structuring. Such reflexive reliance on sex stereotypes contrasts sharply with recent developments requiring gender-neutrality in other areas of law governing family relations, such as custody determinations. Drawing on equal protection jurisprudence establishing that government policies based on archaic or sex-stereotyped assumptions regarding gender roles are unconstitutional, the article argues that exposing the extent to which justifications for limiting marriage to different-sex couples rely on sex stereotypes, and explicitly tying together a discussion of sex stereotypes with claims that marriage statutes are facially discriminatory, can strengthen the analogy between same-sex marriage cases and anti-miscegenation cases such as Loving v. Virginia, making it more likely that the sex discrimination claims will be successful.

Keywords: stereotypes, discrimination, marriage, LGBT rights, same-sex marriage

Suggested Citation

Widiss, Deborah A. and Rosenblatt, Elizabeth and NeJaime, Douglas, Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence (April 19, 2010). Harvard Journal of Law and Gender, Vol. 30, 2007; Brooklyn Law School, Legal Studies Paper No. 91. Available at SSRN: https://ssrn.com/abstract=1027732

Deborah A. Widiss (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

Elizabeth Rosenblatt

Whittier Law School ( email )

3333 Harbor Blvd.
Costa Mesa, CA 92626
United States

Douglas NeJaime

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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