Gender Diversity and Same-Sex Marriage

114 Columbia Law Review Sidebar 97 (2014)

U Denver Legal Studies Research Paper No. 14-54

12 Pages Posted: 30 Jul 2014 Last revised: 21 Jan 2015

See all articles by Ian P. Farrell

Ian P. Farrell

University of Denver Sturm College of Law

Nancy Leong

University of Denver Sturm College of Law

Date Written: July 29, 2014

Abstract

Opponents of same-sex marriage have recently adopted a curious new argument. The argument goes something like this. The Supreme Court has held that diversity is a compelling state interest in institutions of higher education. Opposite-sex marriage includes gender diversity, while same-sex marriage does not. Therefore, states may allow same-sex marriage while banning opposite-sex marriage — even if the ban triggers heightened scrutiny under equal protection or due process — because opposite-sex marriage furthers gender diversity, while same-sex marriage does not.

The gender diversity argument against same-sex marriage has made its way into a number of briefs during the recent increase in challenges to same-sex marriage bans. For example, it appeared in multiple amicus briefs in United States v. Windsor, as well as in various filings in challenges to Utah's same-sex marriage ban in the Tenth Circuit and Kentucky's same-sex marriage ban in the Sixth Circuit.

Despite this newfound popularity, the gender diversity argument fails for a number of reasons. It erroneously conflates sex and gender, impermissibly relies on sex and gender stereotyping, lacks credible empirical support, draws untenable analogies, runs afoul of well-established doctrine, and, taken to its logical conclusion, leads to a inexorably to a number of consequences that are either universally undesirable or that we are fairly certain its proponents do not support. In short, we think the argument wholly unsuccessful, and urge courts not to entertain it.

Keywords: diversity, same-sex marriage, marriage equality, gender diversity, constitutional law, equal protection, due process, fundamental rights, Grutter, Gratz, Windsor

Suggested Citation

Farrell, Ian P. and Leong, Nancy, Gender Diversity and Same-Sex Marriage (July 29, 2014). 114 Columbia Law Review Sidebar 97 (2014); U Denver Legal Studies Research Paper No. 14-54. Available at SSRN: https://ssrn.com/abstract=2473891 or http://dx.doi.org/10.2139/ssrn.2473891

Ian P. Farrell

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Nancy Leong (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans. Ave.
# 465A
Denver, CO 80208-0600
United States

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