92 Pages Posted: 11 Apr 2013
Date Written: May 01, 1994
Most efforts to secure constitutional protection for lesbians and gay men against discrimination have unsuccessfully employed privacy and suspect classification arguments. In this Article, Professor Koppelman approaches the issue from a novel and strategically appealing perspective: that discrimination against lesbians and gay men is sex discrimination which a state may not practice without showing a sufficiently important state interest. Focusing on Hawaii's recent breakthrough case, Baehr v. Lewin, the author argues that the Hawaii Supreme Court correctly employed formal equal protection analysis to invalidate that state's prohibition of same-sex marriage. Professor Koppelman then expands his analysis by examining the reasons why a sex-based classification should trigger heightened scrutiny. He argues that laws that discriminate against lesbians and gay men reinforce the hierarchy of males over females, an evil the equal protection clause has been explicitly used to combat. In both his formal and substantive arguments, the author draws on the reasoning in analogous cases that invalidated miscegenation laws. Professor Koppelman concludes that the only interests the state can advance to justify laws that discriminate against gays are either trivial or impermissible. Such laws therefore cannot satisfy heightened scrutiny and are unconstitutional.
Keywords: Sexual Orientation, Discrimination, Sex Discrimination
JEL Classification: K1, K10, K19
Suggested Citation: Suggested Citation
Koppelman, Andrew, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination (May 01, 1994). New York University Law Review, Vol. 69, No. 2, 1995; Northwestern Law & Econ Research Paper No. 13-12. Available at SSRN: https://ssrn.com/abstract=2248257