De-Clothing Sex-Based Classifications - Same-Sex Marriage is Just the Beginning: Achieving Formal Sex Equality in the Modern Era

Abstract

Last summer the highest court of California extended marriage-rights to same-sex couples, becoming the second U.S. state to do so, after Massachusetts. Shortly afterwards, New York started recognizing same-sex marriages performed outside the state and Connecticut’s highest court recognized the fundamental right of same-sex couples to get married. A few months later, Iowa’s Supreme Court declared its same-sex marriage ban unconstitutional, and Vermont became the first state legislature to legalize same-sex marriage. With these events, within just over five years time, the percentage of Americans living in states that recognize same-sex marriage went from 0% to over 20%. As individual judges correctly noted in three of the six high court marriage decisions of these states, recognizing same-sex marriage rights is an important step towards achieving formal sex equality. After all, men and women should have equal rights and opportunities. Therefore, if a man has the right to marry a woman, then a woman must also have the right to marry a woman, and vice versa.

This Article argues that not only same-sex marriage, but also co-ed sports teams, co-ed bathrooms, and sex-neutral pronouns are current constitutional imperatives under the Equal Protection Clause of the Fourteenth Amendment, necessary to achieving formal sex equality, because any sex-based classification should be judged with strict scrutiny. Sex-based classifications, like race-based classifications, are based on an immutable physical trait with little relevance to most sex-segregated rights. Furthermore, sex-based classifications cause negative effects in society, such as increased sex stereotyping and discrimination against those who do not conform to sex-stereotypes. These current problems would be ameliorated by judging sex-based classifications with strict scrutiny and eliminating any remaining sex-based differences in constitutional rights.

Keywords: sex discrimination, same-sex marriage, sex equality, fourteenth amendment

JEL Classification: K10