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Publication Citation

30 Harvard Journal of Law and Gender 461 (2007)


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.