Debate: Ilya Somin and Sherif Girgis, "Same Sex Marriage and the Equal Protection Clause"
Ilya Somin is a Professor of Law at George Mason University School of Law. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy. Professor Somin’s work has appeared in numerous scholarly journals, including the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, Georgetown Law Journal, Critical Review, and others. Somin has also published articles in a variety of popular press outlets, including the Wall Street Journal, Los Angeles Times, the New York Times Room for Debate website, and USA Today. He has testified on the use of drones for targeted killing in the War on Terror before the US Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights. In 2009, he testified on property rights issues at the United States Senate Judiciary Committee confirmation hearings for Supreme Court Justice Sonia Sotomayor. Somin writes regularly for the popular Volokh Conspiracy law and politics blog, affiliated with the Washington Post. From 2006 to 2013, he served as Co-Editor of the Supreme Court Economic Review, one of the country’s top-rated law and economics journals.
In 2008, Somin served a visiting professor at the University of Pennsylvania Law School. He has also been a visiting professor at the University of Hamburg, Germany, the University of Torcuato Di Tella in Buenos Aires, Argentina, and Zhengzhou University in China. Before joining the faculty at George Mason, Somin was the John M. Olin Fellow in Law at Northwestern University Law School in 2002-2003. In 2001-2002, he clerked for the Hon. Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Professor Somin earned his B.A., Summa Cum Laude, at Amherst College, M.A. in Political Science from Harvard University, and J.D. from Yale Law School.
Sherif Girgis is completing his PhD in philosophy at Princeton and JD at Yale Law School, where he has served as an editor of the Yale Law Journal. He is coauthor of the book, "What Is Marriage? Man and Woman: A Defense," cited by Justice Alito in United States v. Windsor, on which he has spoken at more than 70 lectures, conferences, and debates. His next book, coauthored with Ryan Anderson and John Corvino, is "Debating Religious Liberty, Tolerance, and Discrimination," and is under contract with Oxford University Press. Sherif has written on social issues in academic and popular venues, including Public Discourse, National Review, Commonweal, the New York Times, the Yale Law Journal, the Harvard Journal of Law and Public Policy, and the Wall Street Journal. He is a 2008 Phi Beta Kappa and summa cum laude graduate of Princeton, from which he went on to earn a master's degree in moral, political and legal philosophy from the University of Oxford as a Rhodes Scholar.
Presented by the Federalist Society on March 29, 2016.
Transcript
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Host: Really, really happy to have to have our two speakers here. We have a debate on a very sensitive and important topic. It's been in the news; it's been discussed very heavily. I think it really gets to the importance of the Federalist Society overall, not just in debating issues on both sides of the aisle but also debating within the conservative community itself, and this is an issue that divides everybody. So first speaking, giving the argument that same sex marriage laws do not infringe on the Equal Protection Clause. He's Sherif Girgis. He is a dual-degree student getting his PhD in philosophy at Princeton, at the same time, he's getting his JDD at Yale. He's an editor at the Law journal. I've been told he dabbled in astrophysics too. Background: he also made a Masters in moral and political philosophy from Princeton.
Host: I'm sorry, from Oxford and graduated Princeton undergrad. He also wrote a book on same sex marriage that's been cited by Justice Alito in Windsor that really was the basis for lectures, conferences and debates like this many times so we're very lucky to have him. And also welcoming back, we have Professor Somin, he came last year to talk with the Hilo decision and his book came out recently. There's also some flyers going around on a second edition coming out. He's a Professor of Law at George Mason. He did his undergrad at Amherst, his masters and then his law degree at Yale. He clerked for Jerry Smith in the Fifth Circuit is very active in that bullet conspiracies, testified before the Senate Judiciary Committee a number of times, and honestly has works published in more news outlets and publications that I can even remember. So please, let's, let's welcome both of them and thank them both for being here.
Sherif Girgis: Well thanks a lot for having me. And thanks especially to Professor Somin for doing this. I'm a huge fan of his, not just because his work is brilliantly reasoned and really well written, but also because I'm a personal admirer. I'm a conservative law student. I'm the gay marriage guy who wants to throw himself on the mercies of the academic job market, and Professor Somin is a right leaning thinker who has done just that and obviously to great effect. So I'm a big fan. I want to suggest to you today that the equal protection argument against traditional marriage laws or for over Obergefell Lochnerizes. I don't actually want you to commit to a view one way or another on whether the traditional critiques of Lochner apply, but one important critique of it was that it substituted economically conservative value and policy judgments for the more liberal ones up in the New York legislature.
Sherif Girgis: Right? And you know, like Homesteads in the sentence of the Constitution doesn't enact Mr. Herbert Spencer's social status. So the basic idea in that case was that you couldn't rely on the 14th amendment alone or the due process clause alone. You need it to help yourself to extra constitutional premises to make the argument. And I think that's what Obergefell does and that's what any equal protection argument on the marriage law would have had to do. I want to explain why. I'm going to give a general account of why that is, Professor Somin is going to focus on the sex discrimination argument and I'll reply to his arguments on that in my five minutes. This is just a general case. I think the short answer to why you have to Lochnerize on marriage to get Obergefell is that the equal protection clause isn't enough alone, right? Equal protection means treat like cases alike.
Sherif Girgis: Don't make arbitrary distinctions. In the context of marriage law that means that you need to first figure out what makes a marriage and why it matters for policy, and from there you can figure out whether limiting it to the opposite sex is arbitrary or not. And all I want to say is that on that set of questions, what makes a marriage distinct from other relationships? Why does that matter for policy in particular? There are two basic visions: what I'll call the conjugal view, the more traditional view and the revisionist view. They're both substantive. They're both controversial. Neither of them is neutral. They're supported by some religions and they're opposed by other religions on both sides, and the Constitution is silent on it. Not just the Constitution, but our constitutional tradition broadly. It's not just an originalist argument. Why is that and what are the two views? Well, you can start with a more familiar one, which I'll spend less time on it because it's
Sherif Girgis: much more widely understood today than it would have been 10 years ago. The revisionist view of marriage sees marriage as distinguished from other kinds of valuable relationships by a certain kind of deep emotional companionship that's usually expressed in a sexual bond, right? If you have too men who live together, they share all the burdens and benefits of common life and they're coming into doing it for the long haul. They're not eligible for a marriage under the revisionist view if what brought them together is that they're two brothers who are committed to continuing to live together. They are eligible if what brought them together was a sexual relationship. Right? So that's part of the distinguishing feature of a marriage on this view. That's a kind of value. It's not saying that other relationships are worthless, it's saying there's a distinct value to this set of relationships, the ones marked by this kind of deep emotional companionship, but one of my opponents on the policy debate calls your number one bond. And the policy dimension of this revisionist view, if that's the value judgement, the kind of policy dimension is that set of valuable relationships can be really helped and supported by public recognition.
Sherif Girgis: Public recognition can stabilize it and give it a certain kind of importance and destigmatize it and then support any children that the couple might be rearing. That's a perfectly reasonable view; it has pros and cons. I think on balance it misunderstands marriage, but that's not what I'm arguing today. I think there are pros and cons for it. What I am arguing is that it's not required by the Constitution. There are reasonable and disputable alternatives. What are those? Well, say a little bit more now about the conjugal view of marriage. The alternative, but more traditional view. Basically, I want to give you a quick account of how its different features hang together and then say a little bit about why the Constitution doesn't rule it out. In the book that was mentioned, my coauthors and I try to capture the different features of the conjugal view by saying that it thinks of marriage as a comprehensive union.
Sherif Girgis: In other words, any kind of community, any kind of relationship is formed by cooperation, by common action towards common ends and in the context of a commitment. And on this view, what distinguishes marriage is that in those three dimensions, it's comprehensive. In the unifying common act and the dimensions of the partners united, right? Other forms of relationship unite heart and mind, marriage unites heart, mind and body. This view bodily union between two people is achieved in the way that bodily union within a person is achieved. My heart and lungs and so on are one body, one flesh, because they're all coordinated towards a single bodily end, my life. And between two people, you can have a real one flesh union in that sense by coordination towards a single bodily end, a pair, and that happens between a man and a woman in the sexual act that could lead to reproduction.
Sherif Girgis: So there's a bodily union that forms the foundation of a union at all levels. It's comprehensive in that first dimension. It's comprehensive in the range of pursuits that it's oriented around. Right? So most people understand the academic communities oriented around a particular set of pursuits around knowledge and a sports community team, I guess it's the natural way is I was never. I am as athletic as you think I am. Sports community is oriented around recreation. Marriage is oriented around all of these goods because it's somehow oriented around making new human beings, new participants in all of these bits has value in itself, but it's somehow points towards that of its very nature, not just by choice or taste of different cases. And on this view, the reason for that is that the very act that makes marital love is also the kind of act that makes new life. So the relationship embodied by that act is oriented towards family life and towards the wide range sharing of that life.
Sherif Girgis: Then the last step is the third dimension is commitment, right? If it's, if it's a comprehensive union in the first sense, in the dimensions of the partners united, total union with the beloved in that sense. And if it's comprehensive in the range of things that unite them, it calls for a comprehensive commitment and through time that just means permanence and at each time that means exclusivity. So permanence and exclusivity. The idea that it's inherently a union of two, the idea that it involves sexual complimentarity as a connection to family life and through that to the common good, all the features of marriage that the, that the conjugal views combines are kind of hanging together through that idea of comprehensive. All right. I just want to say that that view is not ruled out by the Constitution or by any constitutional principle, and the first thing you might think was sure it is.
Sherif Girgis: It's ruled out by the fact that it's an inherently religious view. You've used the words one flesh union, or by the fact that it's inherently bigoted and a bunch of case law of Washington v. Davis has tons of case law. Robert v. Evans. Couple more close, closer to this issue, it says that you can't have a policy that's based on spite. I think both of those accounts of why the conjugal views ruled out are refuted by history. If you think of any particular religion came up with this, I can point to you two cultures before that religion ever came about that has something remarkably like the conjugal view. It's yeah, it's in the Canon Law of the Church is also reflected in the common law. It was reflected in parts of ancient Greek and Roman law. Yes, it was defended by Jewish and Muslim and Christian thinkers, but also by Plato and Aristotle and Xenophanes and Musonius Rufus and Plutarch. All these guys have never touched a bible.
Sherif Girgis: They had no idea what Judaism was. They lived in cultures that were actually perfectly fine with same sex sexual relationships. They weren't animated by bigotry. In fact, they didn't even have the concept of gay people as a class, the way that we do. They couldn't have been motivated by hostility to that class, yet they developed in great detail in some cases, something very much like this view. So it's not just bigoted; it's not just exclusive to any particular religion, but then you might say, well fine, maybe it's not any of those things, but it is ruled out because of the policy part. You might think that the value judgment part is fine. Like there's something special about this class of relationships, but the policy judgment that that somehow justifies limiting marriage to opposite sex relationships. That's the crazy part, right? The policy idea that you heard a lot from some of the states was that somehow there's a connection between recognizing only opposite sex relationships and promoting some of the ideals.
Sherif Girgis: For example, some of the stabilizing norms of marriage that generally serve the relationship and itself so they had value in themselves and then also tended overall and in the long run to link kids to their biological parents. Right. If every opposite sex relationship observed permanently exclusive commitment that would obviously increase the number of kids who grew up with a biological mom and dad, which even apart from all the social science stuff you could at least reasonable to think has value in itself. And the idea that somehow you're recognizing same sex relationships as marriages would offset any of those purposes. That's part of what a lot of people thought it was irrational and different or could be struck on equal protection grounds. And my quick answer for why that's not true is that some supporters of same sex marriage. In fact, some gays and lesbians who were pioneers of the, of the movement for same sex marriage, agreed with the premise that changing our marriage laws, wouldn't just change who got into the institution, it would change how people thought of it.
Sherif Girgis: They would move to thinking about it mainly in this companionate-soulmate way. And then thinking about it more that way would undermine the basis for thinking you have to stick with it. And then the emotional bond is gone. It's just reverted to a friendship. Michelangelo Senior, Andrew Sullivan, Dan Savage, gay men who were in the pioneering stages of the marriage movement. They said that of course it would undermine exclusivity and that's a good thing because those norms are oppressive. You might agree or disagree with them, but I think that kind of argument shows that it's hard to say that thinking that the policy purposes the conjugal use promoted by these laws is just a rash. The last thing you might say as well, okay, maybe I'll grant you that in principle, it's not just bigoted, we can't strike it down.
Sherif Girgis: It's not just of any particular religion and maybe even the policy dimension of it has some rational basis whether I agree or not, but after Windsor, you can strike it. Then of course Obergefell came after Windsor, so they had enough material at that stage at least if you're not an originalist, you take into account these new developments. And the last thing I just want to say, it's the, that doesn't work. The main argument that you would want from that is that Windsor says, and this is a direct quote, Kennedy says, DOMA was bad and had to be struck down because it imposes a disadvantage, a separate status, and so a stigma on same sex relationships, but if the problem with traditional marriage laws is that they impose a separate status, that's a constitutional argument against any marriage law at all. The whole point of marriage law is to draw a line and say these things are marriages and these things, whatever their value and obviously there are lots of valuable things that will be left out, are not marriages. If imposing a separate status imposes a stigma, and then that's an argument against having any marriage law post-Obergefell or otherwise. So again, we start, we end where we started, which is that whatever you think of the policy merits, whatever you think of the underlying value judgments about what makes marriage distinct from other valuable forms of relationship. You've got two views on the table. Neither of those ruled out by the Constitution. Neither of them is required by the Constitution, so equal protection alone won't get you to Obergefell. You'll have to Lochnerize. Thanks.
Ilya Somin: Yes, thank you.
Ilya Somin: I like to start by thanking the Federalist Society for organizing this event and all of you for coming and also Sherif for his thoughtful contribution. In this presentation, I'm going to focus primarily as Sherif suggested on these sex discrimination argument for why there is a constitutional right to same sex marriage or at least a right not to have the state have a marriage law that only recognizes opposite sex marriages. But I will talk also at the end a little bit about Lochner and the due process clause. I think Lochner actually has no application whatsoever to the equal protection clause argument; it deals with an entirely different part of the 14th amendment, but there is a separate due process clause argument against laws banning same sex marriage. Then it also has some validity, though it might not result in completely striking down all aspects of them. Uh, so the argument we'll mainly focus on is the sex discrimination argument, which has roots both in the precedent of the Supreme Court long before Obergefell or Windsor, and also in the original meaning of the 14th amendment.
Ilya Somin: And the basic point is that under a law that forbids same sex marriage Sherif and I, I'm sorry to say, could not get married, why not? Purely because we're both men. If we were completely the same as we actually are but one of us was a woman then we could get married. So under this legal regime, our rights with respect to marriage are purely defined by a gender and when your legal rights depend on what gender you are, that is the very essence of sex discrimination. And the Supreme Court has said since the 1970s, that laws that restrict your legal rights on the basis of sex, those sorts of laws must get heightened, intermediate scrutiny. They must prove that they are advancing an important state interest and that there are significant related to it. Uh, and the court is actually made that burden of proof more and more rigorous.
Ilya Somin: Over time. Now some people say, well, this can't really be sex discrimination because it's not motivated by animus against a particular gender such as men or women, or the like. But the Supreme Court has repeatedly said that laws that discriminate on the basis of sex, that they get this heightened scrutiny, even if there isn't any kind of special animus involved. Indeed, the very first case where the Supreme Court ruled that this heightened scrutiny applies was actually Craig v. Boren, which involves a law forbidding men, but not women, between the age of 18 and 20 from purchasing a 3.2% beer. Nobody thought that the Oklahoma state legislature, in this instance, was motivated by some deep hatred of men or a desire to make women to superior class in society. But nonetheless, it got heightened scrutiny and the law was struck down.
Ilya Somin: Moreover, empirically, if you would have some, not all, but some of the motivations for laws banning same sex marriage. Most of them have a good deal to do with a traditional view of sex roles in the household, uh, that there must be a sharp gender based division of labor between women who stay at home and raise children, men who go out in the world and make money. Uh, and this was, uh, in many ways rooted in traditional sex discriminatory attitudes. So this is not just a purely legal formalistic argument. It's one that has roots in the history of how people regarded marriage and also how they regarded the role of men and women in the household. Now, some other people say there isn't any real sex discrimination here because men and women are actually being treated equally. So men are forbidden to marry other men, but so too are women forbidden to marry other women.
Ilya Somin: So there's really no inequality here. I think the flaw in this argument is easy to see when you consider that you can use, and people did use, the same exact type of argument to justify wise banning interracial marriage. People said those laws don't really discriminate on base of race because both whites and blacks are treated equally. Whites are forbidding to marry blacks, but blacks are forbidding to marry whites. So where's the discrimination? And the answer is obvious, discrimination is evident in the fact that who you can marry is restricted based on your race. So there is racial discrimination there and similarly underlies banning same sex marriage who you can marry is restricted based on your gender, there is sex discrimination here. And it doesn't matter that both men and women are victims in a gender discrimination, what matters is that their rights are restricted on the basis of sex.
Ilya Somin: Now, if you're an originalist, and at a Federalist Society meeting, I suspect some of you may be, you might say, well, this might be a good argument under Supreme Court doctrine that has nothing to do with the original meaning of the 14th amendment. Uh, but actually it does because if you look at recent research by originalists legal scholars such as Steve Kalibrasi of Northwestern, one of the founders of the Federalist Society, it turns out that from early on in the 1860s and 1870s, there was broad recognition that laws that discriminate on the basis of gender are at least somewhat suspect under the 14th amendment. They're supposed to get scrutiny in the 67 years. The dominant view is that most such laws should be upheld because they had strong justifications in what were considered to be the essential nature of men and women. For example, in 1873, the Supreme Court upheld a law which forbade allow women to become lawyers in the state of Illinois.
Ilya Somin: Why? Because of the Supreme Court wrote a concurring opinion by Justice Bradley. They thought that women were not really capable of being effective lawyers while at the same time being wives and mothers, based on the factual understanding existed at the time, but this was just incompatible. And similarly during that period and for many decades thereafter, there are people take it for granted that a marriage between two people of the same sex simply couldn't fulfill the sorts of functions of raising children, promoting sexual fidelity and others that an opposite sex relationship could. And this was a course reinforced by the ideology I mentioned early the earlier, that there is separate spheres for men and women. Women should be in the household. Men should be outside of it, at least by and large. Uh, and uh, many people generally took this for granted, but as in other areas of constitutional law originalists have to apply the original principles which themselves don't change to factual understandings which can change as we get new evidence.
Ilya Somin: So just as today we would strike down the law that excludes women from becoming lawyers because we know the factual assumptions that underpin that decision of the 1870s are not true. So the exact same thing applies to marriage. We now know that those functions generally served by opposite sex marriage can indeed be advanced by same sex marriage, sexual fidelity, uh, promoting child raising, certainly, oh, all of these things can and are done by same sex marriage is also strengthening social ties in the community and so forth. Both common sense and social science research suggests that same sex marriage can do these things. There is some dispute about is it on average is effective as opposite sex marriage, but even if you believe that it's somewhat less effective, it still improves these things on net. And the Supreme Court has said quite rightly, that you can't engage in large scale sex discrimination simply on the basis that on average one gender may do something better than others.
Ilya Somin: For instance, you can't forbid categorically women to become police officers or firefighters even if you have social science evidence saying that the average man may be better at doing some of the things associated with those jobs than the average woman. And the same thing applies here, even if the average heterosexual marriage in some sense, functions better than the average same sex marriage. And I don't think the evidence is all clear on that. But even if it is, that still doesn't justify sweeping categorical sex discrimination. Uh, so I think, uh, we do you have superior knowledge what we had before in this area, and therefore applying the same basic principles which stayed all the way back to 1868 to a better and more sophisticated knowledge the facts, we used to conclude we have to strike this down. Now, Sherif and some other critics the same sex marriage
Ilya Somin: they say there is still a factual difference between the two to get this comprehensive union of the bodies. Now, I think it's hard to avoid the recognition that bodily union can in fact happen in a same sex relationship. I won't describe before a sensitive audience exactly how that may occur. But, uh, I think it's pretty obvious that it does occur. So the advocates of this argument, they say what's different if it can't lead to biological reproduction, but if you take that viewpoint, then the state would be justified in excluding a large number of people from opposite sex marriage as well because the data shows that at least 15 percent of all opposite sex marriage in the US involves at least one partner who cannot engage in biological reproduction usually because the partner is a post-menopausal woman but sometimes just because, uh, there is some kind of genetic that prevents them from engaging in that sort of reproduction.
Ilya Somin: And the ability to engage in biological reproduction has actually never been a prerequisite to right to marry. The idea that you can have a successful marriage without this, this is not something that the same sex marriage movement invented or the 1960s hippies dreamed up. Rather you can go all the way back to ancient Greece and Rome and before then and you saw people getting married who could not do this, and people thought that this was perfectly fine because they recognized that marriage serves a wide range of other functions such as raising children for adoption, strengthening social ties, promoting sexual fidelity and so on and so forth. I'm not going to go through them all, so I think that this distinction just doesn't work unless you are prepared to bite the bullet and say we're going to be at the very least, exclude all post-menopausal women from being married otherwise, uh, under the test setup for sex discrimination by the Supreme Court
Ilya Somin: it looks like you're engaging in sex discrimination under a pretty thin pretext of pursuing something that you're not actually, in fact pursuing. Finally, I'd like to talk briefly about Lochner and the due process clause. As I mentioned earlier, you can believe that Lochner is the worst thing in the world. Completely terrible and awful, and yet, except every single thing that I've said so far is the equal protection clause is not the due process clause, the equal protection clause is a separate provision. It doesn't even say that a state must have a particular type of marriage policy. It can choose not to recognize any marriage at any time. It can choose to impose all kinds of criteria on marriage. What it cannot do is engage in sex discrimination, race discrimination, or a few other types of forbidden discrimination in the process. But I do think also that the due process clause, which Lochner was about, does play some role here.
Ilya Somin: Uh, in that contrary to popular mythology, the Supreme Court didn't just make up a right to freedom of contract in Lochner. In reality, there's a lot of scholarship, uh, that there was in fact the right to a contract which would consider to be part of the liberty protected by the due process clause. This was understood even long before the 14th amendment in the due process' clauses of state constitutions where state courts such as the Supreme Court of New York repeatedly struck down laws that violated the freedom of contract. When there wasn't really good evidence that those laws were genuinely protecting public health, safety or welfare and the like, and marriage was in many ways what we started as a kind of contract. It's a voluntary agreement between two people to take on certain kinds of obligations. Now at the time it was still thought compatible with excluding same sex relationships in part because they thought there would be social breakdown for public welfare and morality would be undermined if same sex groups can do this.
Ilya Somin: But I think this was based on a false factual understanding, much as like the false factual understanding that underpinned other sex discriminatory laws. So given the evidence as it exists now and as we are aware of it, there is no great harm to public morality or the like if we enforce the freedom of contract for same sex relationships. And therefore I think there is a due process clause argument here as well. And then a due process clause argument doesn't go quite as far as these equal protection argument because the due process clause argument only ultimately protects private exercise of liberty that is, uh, it enables people to form these contractual relationships which the states would that have to enforce on the same basis under relationships, but it cannot require the state to offer affirmative benefits for these sorts of marriages such as tax benefits, inheritance benefits and the like, so it gets you part of the way there, but not all the way. The equal protection clause
Ilya Somin: on the other hand does you get you all the way there. And I think the best way to do so is for sex discrimination argument. I regret that the Supreme Court, did you go down this particular road in Obergefell. Instead, I think if you look at the Obergefell majority opinion, there are some good points there, but, uh, it doesn't ultimately hang together well. So I think what the court did is they got the right result, but they took the wrong road to get there. There is a simpler and easier road that they could have taken, which is the sex discrimination argument.
Sherif Girgis: When I first started doing the policy debates on same sex marriage early on, I did one with Andy Koppelman, who is a Professor at Northwestern just I guess 50 blocks away or whatever it is, and we having dinner once afterwards. I'm pretty sure this is not just my memory playing tricks on me. He said we were talked, we started talking about the legal argument, which we hadn't debated and he said, you know, there's, I think the best argument is one that I came up with in law school, which is the sex discrimination argument for an equal protection argument against these traditional marriage laws. I said there was something odd about it, about the way it wrung to me and I thought I wasn't against sex discrimination getting heightened scrutiny, but I thought there's something weird about applying it to this case, but I didn't give it much thought in that context.
Sherif Girgis: Then a couple months later, I'm taking con law with the Akhil Amar at Yale and I had lunch with him at one point and we started talking about this issue because he knew that I was writing about it and he said, you know, I think the strongest equal protection argument against these traditional marriage laws is one that I developed a long time ago called the sex discrimination. I later found out that Amar had taught Koppelman, so maybe they're both just misremembering the same conversation. Anyway, be that as it may, I do think there's a puzzle here. There's a puzzle, and the fact that on the one hand, this looks like a slam dunk. It's an easy shot, right? Sex Discrimination, heightened scrutiny already exists. You don't have to make stuff up like people on both sides think that Kennedy made at least a few things up in Obergefell, right?
Sherif Girgis: It doesn't require any particular fancy footwork. It's even easier to make, and this is something that Koppelman and Professor Somin have both said and many others have said. It's easier to show that these marriage laws discriminate based on sex then on sexual orientation. You don't get asked if you're gay or straight when you get a marriage license, you do have to check if the couple is the same or opposite sex at least before Obergefell. So here's the puzzle. Why given all of that was it so rarely used by courts? I don't think any of the circuit courts use that argument even though it was in the air and being made for several at least since Akhil Amar and Koppelman had met. But also it wasn't used in, I mean, I think it was using one concurrence in the ninth circuit.
Sherif Girgis: It will also wasn't using the vast majority of the district court cases. So I want to give an account of what seems odd about it that morphs into a kind of justification for thinking of this case differently than other sex discrimination cases. The first thing to note is that other cases dealt with individual sex. In Frontiero, if you were a male air force member, you could get benefits for your spouse. If you were a female air force member, you couldn't. It was based on your sex period. In Weinberger versus Wiesenfeld, if you were a male, you couldn't get social security benefits as a widower. If you are a femael, you could. End up discussion. In the VMI case you were admitted to University of Virginia or to the, um, to VMI if you were a man, you were, if you were a woman, you couldn't, but in this case the state is only interested in your individual sex derivatively. The real thing
Sherif Girgis: it's distinguishing on the basis of is sexual composition, the sexual composition of a pair. And what I want to suggest is that for that criterion, sexual composition, the usual reasons for heightening scrutiny don't apply. So it should be, it should get rational basis. Now, what are the usual reasons we can step back for a second, right? The basic form of heightened scrutiny goes like this. At the first stage, you look at the form or the structure or the surface of the law, and you see that it makes things hinge on a trait that we have antecedent reason to think is going to be used invidiously. So then you move to the second stage, you look behind the surface or the form or the structure to the substance and you test that in a little more searching way. Right? And what I want to suggest is that in the case of sexual composition in particular, at that very first stage of looking at the structure or the form, if you fully describe form, you will already allude to the justification or a public interest.
Sherif Girgis: And for that reason you can stop at the first stage. The basic rationale for moving to the second stage for imposing heightened scrutiny and looking behind the surface to the substance doesn't apply. Why is that? Well, one way to think about it is that male and female aren't just any too sexes. If you. I'm a, I do philosophy and usually philosophers before half an hour is up, we'll bring up Martians. So do this thought experiment. Imagine a Martian came up to you and said, here are these like Obergefell is awesome. But before that there were these laws. What did they distinguish based on say, oh, whether the couple was male and female. They go, what's that? Well, male and female, and the two sexes. Well, what's that? Well, I mean one difference is sort of typical, at least statistically relevant and not anatomical differences, Anatomical differences
Sherif Girgis: of what kind? In what part of the anatomy. I'm going to stop coming here, but the point is that if the, if the annoying Martian kept pressing you, you would ultimately have to say the word reproduction. That's not a claim about how people should be or what they should do with their lives. That's a claim about the structure of these concepts. Male and female. Not denying that that gender has a socially constructed element and just talking about the sex, the sex discrimination that was at stake in these laws. In other words, male and female are themselves defined with respect to each other and a public end. If you fully described the form or the structure, you're going to get to a public good. That's not true of any of the individual sex discrimination cases to get from woman to a bad at lawyering, you obviously have to go beyond the concept of woman or female.
Sherif Girgis: You also have to impose lots of questionable empirical assumptions. That's why it makes sense to heighten the scrutiny. Go to the second stage and then strike it down if it doesn't meet the scrutiny as that one shouldn't. In the case of racial homogeneity in loving right, of course that was the racial composition case, not an individual race case, but at the same issue applies, right? The idea of black and white doesn't of its own nature refer to any social value. Now you might say, oh, well for them it did, and that was the problem, right? They thought that this was relevant to racial purity, but racial purity is obviously a socially constituted goal and that's why it can make sense, especially when you're talking about race in general, to go to the second stage and look at whether that goal makes sense, whether it actually has value and so on, and that just doesn't apply to these cases.
Sherif Girgis: Now, what I want to say is first of all, this kind of analysis where sexual composition is different from sex discrimination in general. First thing about it is that leads perfectly intact all of our sex discrimination law: Fronteiro, Craig, and Weinberger and Wiesenfeld and all the rest are perfectly intact. In fact, then you might say, well, okay, fine, but it relies on stereotypes and that makes it a problem, but the way in which male and female are connected to reproduction on this account, right? If you were giving the full conceptual analysis of male and female to the Martian, you would say that they're male and female are understood in terms of the root physical potency to make new human life, and that in itself is not making an assumption about what any individual male or female should do.
Sherif Girgis: It's about potential not about norms or duties or even the kinds of contingent empirical assumptions that are involved in saying that women are going to be good or bad lawyers. In fact, it is very closely to the standard in the Vmi case that Justice Ginsburg herself, again, she says that inherent and physical differences between men and women are things to be celebrated. She draws a clear distinction with race in that respect and inherent and physical and celebrated are her words from the opinion. What scheme could possibly hue more closely to that idea than one that imposed heightened scrutiny on any kind of sex discrimination except the kind if you do want to call it sex discrimination that targets inherent physical differences that are necessarily connected to a celebrated social end, which is reproduction. So I think this leaves in tact all of our law, it makes sense given the purposes of these judge made devices have heightened in general and it's one account of what was going on when a lot of judges were rejecting it.
Sherif Girgis: Just want to say one thing at the end about, um, there are two ways you, I think this doesn't make sense. One is that obviously same sex couples can adopt or can use technological means to create children and raise them together. That's true. It doesn't affect the question of whether the surface or structure of these laws already makes reference to a social good. Then on the other hand, you might bring up the point that Professor Somin hit on. Would you say, well, hold on a second. There are lots of infertile couples and it's true. This wasn't just made up in the '60s, but in fact I think that that supports the earlier argument I was making. I was painting a vision of the view. We really thought that hey, there was something distinctive about the union apart might embody, that in general it had a connection in practice to actually rearing kids and that's what got the state involved, but that the relationship itself had value as such in itself and distinct value for heart and mind, but there was a bodily union where there's coordination towards a single end even where the end didn't come about and this was reflected in the common law that, for example, always recognized infertile couples but always also allowed you to bring your case in for annulment if you weren't consummate, the marriage kind of constantly so clearly reflected the kinds of value and policy judgments at stake in the conjugal view.
Sherif Girgis: But anyway, all of that is just to say, and of course you know in any, any kind of classification, there's always some over and under inclusion. You'll remember, on the revisionist view, for example, you think that there's a distinct kind of personal bond that tends to favor family life, but you don't test for either of those things when two men or two women come for a license. So I don't think there's any distinct problem for this view in any of those respects, but the sex discrimination argument and everything that motivates it, which is hasty empirical generalizations about what men do or what women do or what they're bad at doing, good at doing much less the subordination and all the other issues that so many Professor Somin haven't talked about or just not at stake in these cases. And there's a kind of principle to account for why you, it's perfectly rational for judges to stop at the form of the structure in this cases and just treat them under rational basis rather than moving to the second inquiry where we test the substance under a higher stand. Thanks.
Ilya Somin: So Sharif and his rebuttal focuses on two points primarily, and I'll focus on the same two. One is relating to suppose differences between gender classification, which are based on groups versus individuals, and then secondly, the issue of orientation towards reproduction. What type groups versus individuals first. Uh, I don't think this can make a meaningful distinction between sexual classifications, which you get heightened scrutiny and those ones cannot. Imagine a law which says that women and men, they can both do business, but women are only allowed to do business with other women. Men are only allowed to do business with other men. Notice this declassification based on groups, not individuals, it seems to fit Sherif's tests, but obviously it has to get heightened scrutiny. It still restricts people's rights on the basis of their gender. Uh, and therefore the fact that you have a group classification rather than individual one is utterly irrelevant from the standpoint of constitutional law.
Ilya Somin: You can call it a relationship or relational classification. What ever you want, the same point applies. I would note also that this, uh, that this approach would undermine the, one of the key lessons that we got from Loving v. Virginia, uh, wishes that in that situation, it still was not a purely individual racial classification. It was still composite. It was about the relationship between a black person and a white. Yet nonetheless, that was considered as racial discrimination that still gets heightened scrutiny. The exact same point applies here. It doesn't matter whether it's composite or individual or whether even it's a matter of three or four or five people getting together. What matters is whether your legal rights are restricted on the basis of gender or in the case of Loving on the basis of race. If they are, you get heightened scrutiny, which this sort of lot cannot pass. Now Sherif in common with a lot of other defenders of laws banning same sex marriage.
Ilya Somin: He says, well, opposite sex marriage, it's oriented towards the goal of reproduction. Makes sense to draw the line there. Uh, I don't think that really makes sense for exactly the reason I had mentioned earlier, which is not just a few but a very large fraction of opposite sex marriage is at least 15 percent involve people that we know cannot in fact engage in biological reproduction. To retry, well, at least there is potential or orientation towards it. No, there isn't even any potential if you have a sterile person is one of the two partners. If you have a postmenopausal woman who's one of two partners, there isn't even a potential of biological reproduction. It just cannot happen. If this sort of a category of cases can be included, it's not just the slightly imperfect fit between the law and it's supposed purpose, it's a giant, massive hole in the justification and if you have many millions of heterosexual couples that can fly in under the radar in this way, that it seems like if you want to avoid sex discrimination, if you want to avoid heightened scrutiny, the only way you can do it is by wowing a much smaller number of opposite sex
Ilya Somin: couples to get through as well. Uh, so I think this orient... it is true. You can say definitionally male and female, a biology textbook to life. We're going to be defined in reference to reproduction. But again, when we talked about heightened scrutiny, when we talk about legal classifications, what matters is not terminological classification, but what these people actually are really going to do. And one of the things that many millions are not able to do is engage in biological reproduction. It just can't happen and therefore it can't be taken seriously either as a justification for upholding these laws under heightened scrutiny or as the justification for closing their eyes and denying heightened scrutiny to begin with. Finally, I would mention that when you consider the purposes of why the discovery, the base of race or sex, you have to look at the actual purposes to actually motivate the law, not merely at a hypothetical purposes that some people can come up with, and empirically it just is the case that a very large proportion of the motive for excluding opposite sex couples... I'm sorry, same size couples for marriage are in fact based on gender stereotypes and the like rather than based on a sort of a high philosophical arguments or definitional arguments.
Ilya Somin: Empirically, many of those definitional arguments actually became prominent debate only in recent years as a way to get out of the idea that we have to rely on gender stereotyping. So ultimately it doesn't matter whether this is a composite classification or an individual one, it also doesn't matter, uh, that uh, same sex couples cannot engage in biological reproduction. Neither of these things can avoid the need for heightened scrutiny and neither of them can enable these laws to pass heightened scrutiny once it is applied. Thank you.
Question One: So I have a question for Professor Somin.
Question One: I'm wondering if you can... two things. First group classification. So they feel as though you didn't address the argument there. So the argument was that with group classification, gender is something defined at rock bottom in terms of its group and biological such and say brought up like women doing business with other women. That's not the case. Like women like that kind of law doesn't. You don't define women at rock bottom in terms of their doing business with certain genders. So I think his argument was the rationale for imposing rational intermediate scrutiny. Does it apply something like rational place would suffice. I wonder if you can address in the second one is a slippery slope argument. So that kind of stuff, if we grabbed that, what kind of a ... three people in a marriage and nonconjugal incest.
Ilya Somin: Let's take the second question first. On the slippery slope issue, if you decide this based on the sex discrimination argument, there's no slippery slope whatsoever because laws that classify based the numbers of people do not classify based on gender and there is no heightened scrutiny for laws to classify based on numbers. Now your first question in respect to rock bottom, I guess a lot depends on what you mean by rock bottom, but I would contend that either this rock bottom doesn't have the moral and legal significance that you suggest it does a or it's just empirically wrong. If the rock bottom argument means that by your nature women can only have these sorts of relationships with men. It just isn't true. They can engage in sexual relationships, raise children and so forth, with other women that and also it's not true that by their nature are all women can engage in biological reproduction with all men for reasons
Ilya Somin: already mentioned earlier. If you want to say, well nonetheless, at their rock bottom, they have certain traits, uh, that if coupled with other traits that they may not have, can lead to biological reproduction, then that's true, but it's utterly irrelevant to constitutional debate, uh, because what should matter in constitutional debate is a, is a suspect classification, clearly is. B, is there a justification for using it? And that justification cannot rest on facts that don't actually exist in a real world, namely can't rest on a potential for biological reproduction that in fact doesn't exist with an enormous proportion of the relevant class.
Sherif Girgis: Just a brief thing on each of those things. So on the first point, my argument wasn't that group distinctions are what get this lower scrutiny. I agree that group distinctions as such can still trigger scrutiny. And, and the example you gave is an example of that. I think that opposite sex composition is a criterion. It's a feature on the form on the surface of the law which had fully spelled out already refers to a social good. That was the difference. It's not between women and other women and some job or between women and their capacity for a job or not a job. It's between opposite sex pairing fully spelled out has to refer to a social end. So that was the distinction with the example that Professor Somin gave. I don't think it tells against me. And I'll take your questions on a second.
Sherif Girgis: I just want to say one other thing about the reproduction case. So the kind of the reason I brought up the two features of the common law that on the one hand it always recognized infertile relationships and they knew about internal relationships and they knew that women past a certain age, um, weren't able to conceive and so on, but always granted annulments for non consummation is that this reflected something at the level of the value judgments, right? And the value judgment on the revisionist side is that what makes this relationship distinctive is the emotional depth of a sexual valence, right? That the kind of companionship that you can have through a sexual relationship creates an intensity and a quality that makes it special from other forms. And then there's a policy judgment that overall in the long run, if you recognize these relationships, you will be able to promote stability and the health of some children who are reared by them.
Sherif Girgis: There's a parallel here, right? Those two features of the common law that I just described suggests that the value judgment there is that comprehensive union has a distinct value in itself. It would actually undermine the purposes of recognizing that to rule out internal relationships, it was suggest that this was merely instrumental to kids. They still have the bodily union cause bodily union at each stage is what it is. Regardless of what happens at later stages. So you still have the behavioral component of this complex process towards the single end. That still creates bottle union. So it can still be a part of comprehensive unit. Can you might just say, well that's like too fixated on the body and it's true that this is a vision on which the body is a part of the person. So the distinctive criteria for bodily union matter, for the value judgment.
Sherif Girgis: You can. You can paint that in a way that makes it look silly and obsessive, that you can do the same thing with the value judgment on the revisionists side. You can say, wait a second, you're telling me that the only thing that separates two men who have a sexual relationship from two men who don't is you know the, the moral and spiritual quality of climax, but of course that would undermine the view, right? There's an understanding of the way in which that has distinctive value and there's an understanding of this beyond which the bodily union is a part of a total union with the beloved, but it has its own requirements as bodily union. So the two views are on a par here. They both have a controversial premise about what makes this distinct and value from other forms of relationship and they both have a more contingent policy or empirical premise, which is that recognizing only these relationships will serve overall some important social goals. So in that respect, they're on a par.
Ilya Somin: One thing about that, everything that he just said, at least in the last bit, actually supports my position in that if this comprehensive union is in fact possible to achieve in a relationship where there is zero chance of achieving biological reproduction and if the consummation is important, even if it has zero chance of achieving biological reproduction, that shows that you, in fact do not need to potential for biological reproduction to achieve whatever the goals of that union may happen to be a and therefore that restricting it to opposite sex couples, uh, doesn't actually make sense even on this from the standpoint or to partake or policy that underlies this. And it also suggests that a, it's not even a new idea that, uh, you can, uh, achieve these goals, but out the potential for biological reproduction. Uh, and so similarly with the groups versus individuals, I think you can't really say that there's a social goal built into the classification that doesn't exist with opposite sex, with same sex relationships. If in fact, a very high percentage of relationships which declassification takes in are ones where, uh, you can't
Ilya Somin: actually get anything that you couldn't also get with a same sex relationship.
Sherif Girgis: Quick thing to that, and then I'm going to call me two people here because I can tell they have a hostile question for me. So, uh, on the first point, there is something that exists between an opposite sex infertile couple that doesn't exist between same sex couple from this view, right? I mean, again, it's not like they didn't know about sex between men because we have cited lots of cultures that were, that had that regularized across the population. So it's either totally baffling that they just missed that you could have an enduring relationship of exactly the same kind between two men or something like the following is true: bodily union is constituted by coordination towards a single bodily end. That was my analogy within a person. Right? But you might not think the body matters at all.
Sherif Girgis: You might think we're kind of dualist we're just ghosts in the machine. That's a different view. But if you think the body matters and total union with the beloved will include bodily union, you figure out what bottle union means and take it on its own terms. It's not the whole story, but it's a part on this new bodily unions coordinates towards a single bodily end that that has behavioral and non behavioral parts to it. The behavioral part is the sexual intercourse of a man and a woman and it has the identity that it has, like any other biological step or process, regardless of what happens later on, so it can be a part of a relationship that has distinct value. If you disagree with that account, you have two things that are just baffling on your view to explain. One is how these remarkably numerous cultures that knew about infertility and knew about sex between men and between women and we're totally fine with sex between men and women.
Sherif Girgis: Still thought there was something distinctive about the bodily union between a man and woman. And the other thing you have to explain that I think is extremely difficult to explain. I'd welcome any responses to this challenge is even on the revisionist view now. What makes sex integral to marriage? It's got to be on the revisionist view, something like that it promotes a deep emotional union vulnerability and mutual exposure and the thrill and excitement and delight of fully knowing another. There are all kinds of relationships that can promote that kind of intimacy, emotional intimacy. You can have that kind of thing through lots of different activities in some. For some people actually it will be against temperament to have it through a sexual relationship, right? Lots of people identify as asexual. If all that sex contributed to America was an emotional fostering, then you can't explain why sex is integral to it. The conjugal view has the benefit not only of explaining the widespread practice of all these cultures, which would otherwise be baffling of drawing the lines where they did. It also has the benefit of explaining why sex is integral to marriage in a way that other things that foster and express emotional affection are not. Okay. Go ahead.
Question Two: I will try not to be hostile. I really appreciate when people comment on how kind and intelligent
Question Two: arguments for things that baffle me. So my question is about the legal question, about your claim that somehow we can stop at the first step for gender in a way that we can't for race and I just do not understand why we wouldn't want to ask one, more scrutiny and the same way that we wanted to say is racial purity an acceptable social end? That's on the face of the law. We wouldn't want to ask, is natural reproduction of good, of social, a social good that that needs to be, that this policy justifies right? It's justified.
Sherif Girgis: You're right. I am taking it for granted that reproduction is itself a social good.
Question Two: Natural reproduction within a biological...
Sherif Girgis: Well, natural reproduction is required if I have to show that this classification has something different that other things don't. Right? And first of all, as the sort of value judgment I was painting in the conjugal view in this long tradition from different religions, I would say that there is something distinctively valuable about that. Not just for society but for the couple, for the kind of union it makes possible between a couple themselves. But apart from that, well all I was saying on the sex discrimination thing is that where a social good comes up in the full description of the form, you don't have the same reason to go to the second stage and scrutinize the substance. And to say that the reproduction shows up in the form of male-female is not to say anything about whether other relationships can and can't raise kids together. So it's no under my... You might agree with my argument or not about why opposite sex composition requires less scrutiny, but it's not even the beginning of a rebuttal to it to say that other relationships also can have some connection to this public good. The whole question was at the level of the form or structure or surface of the wall, does a public good arise and this was an argument that one does and for that reason, the form of the structure isn't suspicious in the way that it is with race.
Ilya Somin: I just want to comment very briefly on that, I think it just isn't in the form because it's simply includes a huge range of relationships. We can actually achieve it, which we know can't achieve it. Sherif said it's baffling why all these cultures drew the line at these at this point. Uh, if that isn't the reason to be honest, it's not baffling at all. It goes back to the fact that until very recently, all were nearly all cultures around the world were highly sexist and they believe for what for them were understandable reasons that there needed to be a strictly defined sexual division of labor in the household and form of a marriage, even one that didn't reproduce it, didn't have children required having a household and division of labor and the like and therefore you simply couldn't have that division of labor between two men or two women.
Ilya Somin: Or if you did it would require at least one of them to behave in a sort of unnatural way to the unmanned as the old phrase ways or in the case of women to be unduly masculine in some way. And I think whenever you can say about the rationality of them believing things a hundred years ago or 200 years ago or to like when you have the evidence on this stuff was less well understood and less attended to now. Today, I think we can say the doubt way of thinking is based on premises flawed both factually and morally, and therefore we can perfectly well understand why those cultures did what they did. Yet, also recognize that this is no reason not to treat this like any other gender classification today.
Sherif Girgis: So we have time to get into the last question and then I will also respond to that.
Host: I haven't taken Constitutional Law, and I probably will graduate without it, so I have a question for Professor Somin about just thinking through these two different groups under heightened scrutiny because you have averages and that clearly doesn't apply here. It's really not the case that the average homosexual marriage, gay marriage will be different than the average heterosexual. One category can achieve something and another category can't. And so I was wondering whether there's any case law that bears on that specifically that I think you're raising the point that we have to be concerned about making sure that it's as narrow as possible. And I was wondering if there were any cases, let's say narrow as possible because you as an economist, I might think that there's reasons why sometimes laws are overbroad overbroad this keep away from the purpose of the law and they'll believe that courage is about. I'm just, I was wondering if we could ever get to a point where it's going to be the case that there's a sort of the way marriages are viewed in society show was that we actually don't buy into it. So I think yeah, there's an explanation for why do you let people get married when they were really old because you don't have to draw that line and make people uncomfortable. This might point to other cultural factors about those people who get married but don't have kids or you know, people are just as likely to have kids and what will we ever get to the point where we could make those constitutional arguments about traditional marriage.
Ilya Somin: Should I answer? First of all, I don't think it's correct to say that laws banning same sex marriage or laws restricting same sex couple draw the line between one group that can do it and one group that cannot. At least not if the relevant hit is biological reproduction. To the contrary, a very large proportion of the group that is still included within the law is a group, uh, they cannot do it. More than 15 percent, uh, and therefore I highly suspect that this is not the real reason for drawing the line that you say correctly. I think that on your second point that we often don't draw draw lines precisely in the law, but the whole point of having heightened scrutiny for certain classifications, race, gender, religion, and some others is because for historically they've been used for a variety of oppressing purposes and therefore if we're going to allow them to be used at all, we want to make sure that they really are essential to achieving some important end and we're not going to allow loose fit, particularly not in a situation where it would be pretty easy to draw the line in a different way.
Ilya Somin: So we have an age cutoff for women, for example, or for both genders if you like. Uh, and particularly when it's not even at all clear, it's actually the case that you couldn't promote biological reproduction by having both kinds of marriage. There's no evidence that when you have a same sex marriage, that reduces biological reproduction or imperils it in some way. So I think we want to enforce legislatures to either not use these kinds of classifications at all or to rigorously fit them to legitimate purposes that can't be achieved in an other way precisely because if you loosen the reigns the government is likely to misuse these classifications in all sorts of ways. Uh, and I think that makes good sense. That's the whole point of equal protection law. Uh, if you, uh, want to say what the government should have a free hand to have loose classification that as a general rule that that's an argument for not having an equal protection clause in the constitution.
Sherif Girgis: I'm sorry, sorry to cut you off. You're right. A lot of changes have already pushed us towards the revisionist view and away from the conjugal, but it would be totally for me. What is baffling is traditional marriage supporters who want to stop at resisting same sex marriage who don't think it should be part of a larger plan. The only reason that's not a good constitutional argument is there's no one way ratchet clause in the Constitution. If you pushed towards one substantive policy vision, you can't go back.
Sherif Girgis: Thank you.
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.