What Feminists have to lose in same-sex marriage litigation

UCLA Law Review

Volumn 57, Issue 5, 2010, Pages 1199-1233

  Case, Mary Anne ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78650793413     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (152)

1. See, e.g., Mary Anne Case, Feminist Fundamentalism and Constitutional Citizenship, in DIMENSIONS OF WOMEN'S EQUAL CITIZENSHIP 107 (Joanna Grossman & Linda McClain eds., 2009) [hereinafter Case, Fundamentalism and Citizenship];
2. Mary Anne Case, Feminist Fundamentalism on the Frontier Between Government and Family Responsibility for Children, 2009 UTAH L REV. 381;
3. Mary Anne Case, Perfectionism and Fundamentalism in the Application of the German Abortion Laws, in CONSTITUTINCT EQUALITY: GENDER EQUALITY AND COMPARATIVE CONSTITUTIONAL LAW 93 (Susan Williams ed., 2009).
4. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982).
5. The repudiation of such stereotyped notions as a basis for law has become the orthodox view of constitutional sex equality guarantees as articulated by the U.S. Supreme Court under the U.S. Constitution since die 1970s. See Mary Anne Case, "The Very Stereotype the Law Condemns": Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 CORNELL L. REV. 1447,1448-49 (2000).
6. Susan Frelich Appleton's Missing in Action? Searching for Gender Talk in tixe Same-Sex Marriage Debate, 16 STAN. L. & POL'YREV. 97 (2005), focuses on the absence of what she calls "gender talk" in die public, debates on same-sex marriage. My focus will instead be on die effect of its underrepresentation in the case law.
7. See oho Deborah A. Widiss et al., Exposing Sex Stereotypes in Recent Some-Sex Marriage Jurisprudence, 30 HARV. J.L. & GENDER 461,501 (2007) (analyzing the use. of sex discrimination arguments in recent same-sex marriage cases in an effort, to explain and correct for their lack of success).
8. See discussion infra Part V of Hernandez v. Robles, 85.5 N.E.2d 1, 7 (N.Y. 2006) ("Intuition and. experience suggest, that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.").
9. Proposition 8 is the ballot, designation for the state, constitutional amendment, passed by referendum of California voters in November 2008, adding to the California Constitution the provision "Only marriage between a man and a woman is valid or recognized in California." Strauss v. Horton, 207 P.3d 48, 59-50 (Cal. 2009) (upholding Proposition 8 as a permissible constitutional amendment). The passage of Proposition 8 overturned that portion of the California Supreme Court's earlier ruling opening marriage in California to same-sex couples.
10. See In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
11. Marriage Cases, 183 P.3d at 439-40. Even if it had wanted to make clear that, heightened scrutiny for sexual orientation, rather than sex discrimination or substantive, due process, was the basis for its decision in the Marriage Cases, the California Supreme Court majority could have done as the Iowa or the Connecticut Supreme Court did and simply declined to reach the sex discrimination claim instead of gratuitously rejecting it.
12. See infra Part. V.
13. I take this language, of course, from Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 2.56, 279 (1979) (requiring discriminatory intent as well as disparate, impact, for claims of violation of equal protection on grounds of sex).
14. See infra Part V. For further discussion, see Mary Anne Case, What Stake. Do Heterosexual Women Have in the Same-Sex Marriage/Domestic Partnership/Civil Union Debates? (unpublished manuscript, on file with the author).
15. See, e.g., Sylvia Law, Homosexuality and the Social Meaning of Gender, 1988 WIS. L. REV. 187, 218 ("Gay people and feminists violate conservative ideology of family in many ways.... [W]hen homosexual people build relations of caring and commitment, they deny the traditional belief and prescription that stable relations require the hierarchy and reciprocity of male/female polarity.");
16. SUSAN MOLLER OKIN, JUSTICE, GENDER AND THE FAMILY 140 (1989) ("It seems evident... from the disagreements between traditionalists and feminists... that there exists no clear current consensus in this society about what marriage is or should, be.... By contrast, the lack of expectations about gender, and the lack of history of the institution of marriage, allow gay and lesbian couples more freedom in ordering their lives together and more chance to do so in an egalitarian manner.");
17. Nan D. Hunter, Marriage, Law and Gender: A Feminist Inquiry, 1 LAW & SEXUALITY 9, 17 (1991) ("Same-sex marriage could create the model in law for an egalitarian kind of interpersonal relation, outside, the gendered terms of power, for many marriages. At the least, it would radically strengthen and dramatically illuminate the claim that marriage partners are presumptively equal.").
18. Or, to put. it in terms that are outdated, but. still attractive to me, from the perspective of both women's liberation and gay liberation.
19. Mary Anne Case, Couples and Coupling in the Public Sphere: A Comment on the Legal History of Litigating for Lesbian and Gay Rights, 79 VA. L REV. 1643, 1665-66 (1993).
20. Mary Anne Case, Marriage Licenses, 89 MINN. L REV. 1.758,1774 (200.5).
21. CAL. FAM. CODE §297(a) (Deering 1994).
22. CAL. FAM. CODE §300 (Deering 1994).
23. CAL. FAM. CODE §301 (Deering 1994).
24. See, e.g., Case, supra note 13, at 1777-84.
25. Id. at 1781.
26. See, e.g., Plaintiffs' and Plaintitf-Intervenor's Annotated Amended Proposed Findings of Fact and Conclusions of" Law at 63-66, Perry v. Schwarzenegger, No. 09-CV-2292 VRW (N.D. Cal. argued Jan. 11,2010).
27. Baker v. Vermont, 744 A.2d 864, 898-99 (Vt. 1999) (Johnson, J., concurring in part and dissenting in part.) (internal citations omitted).
28. See generally Mary Anne Case, Disaggregating Gender From Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 10.5 YALE L.J. 1 (199.5) [hereinafter Case, Disaggregating];
29. Mary Anne Case, Two Cheers for Cheerleoding: The Noisy Integration of VMI and the Quiet Success of Virginia Women in Leadership, 1999 U. CHI. LEGAL F. 347;
30. Mary Anne Case, Unpacking Package Deals: Separate Spheres Are Not the Answer, 75 DENV. U. L REV. 1305 (1998) [hereinafter Case, Unpacking]; Case, supra note 3, at. 1476-77.
31. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982).
32. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).
33. Of course, for both sex and marriage, the law is not the only source of constraint-societal expectations and nonns, whether or not backed by the force of law, can restrict and impose conformity on both individuals and married couples.
34. For a detailed explanation, see Case, Disaggregating, supra note 21.
35. J.E.B. v. Alabamaexrel. T.B., 511 U.S. 127,157 n.1 (1994) (Scalia, J., dissenting). For further discussion
36. see Case, Disaggregating, supra note 21, at 11-18.
37. See Case, supra note 3, at 1450 (arguing that "[a]ll of the moving parts of the present law are fully articulated in her brief for the appellant, in Reed v. Reed, although it. took until the second modem constitutional sex discrimination case, Frontiero v. Richardson, which Ginsburg argued for the ACLU as amicus curiae, for members of the Court, explicitly to adopt them").
38. Ruth Bader Ginsburg, Gender in the Supreme Court: The 1973 and 1974 Terms, 1975 SUP. CT. REV. 1,1 n.1.
39. Ernie Freda, Washington in Brief: A Lesson in Semantics, ATLANTA J. &k CONST., Dec. 29, 1.993, at A8.
40. Ruth Bader Ginsburg, Gender and the Constitution, 44 U. ClN. L. REV. 1,1 ( 1975).
41. Id. at 13.
42. 518 U.S. 51.5 ( 1996). See. infra Part V for further discussion.
43. Ginsburg, supra note 30, at 1 (quoting address by Swedish Prime Minister Olaf Palme, Women's National Democratic. Club, Washington, D.C., June 8, 1970).
44. See Pope Benedict XVI, Address of His Holiness Benedict. XVI to the Members of the Roman Curia for the Traditional Exchange of Christmas Greetings (Dec. 22, 2008), available at http://www.vat.ican.va/holy-father/benedict-xvi/ speeches/2008/december/documents/hf-ben-xvi- spe-20081222-curia-romana-en.html ("If the Church speaks of the nature of the human being as man and woman, and demands that this order of creation be respected, this is not some antiquated metaphysics. What, is involved here is... a readiness to listen to the 'language' of creation. To disregard this would be. the self-destruction of man himself.... What is often expressed and understood by the term 'gender' ultimately ends up being man's attempt, at self-emancipation from creation and the Creator.... Rain forests deserve indeed, to be protected, but no less so does man, as a creature having an innate 'message' which does not contradict our freedom, but is instead its very premise.").
45. Letter From Cardinal Joseph Ratzinger, Prefect, Congregation for die Doctrine of the Faith, to the Bishops of the Catholic Church on the Collaboration of Men and Women in the Church and in the World. (May 31, 2004), available at http://www.vatican.va/roman-curia/congregations/ cfaith/documents/rc-con-cfaith-doc-20040731-collaboration-en.html. 36. For further discussion, see The Immanent Frame: Secularism, Religion and the Public Sphere, Homosexuality and the Anglican Debate-Mary Anne Case, Aug. 4, 2009, http://blogs.ssrc.org/tif/2009/08/04/liomosexuality-and-the-anglican-debate. As further evidence of this connection, consider that four years before Ratzinger, on behalf of the Congregation for the Doctrine of the. Faith, condemned the pernicious influence he saw the. concept of "gender" having on the collaboration of men and women in the church and in the world, Alfonso Cardinal Lopez Trujillo, on behalf of the Pontifical Council for the. Family, blamed, "the spread of a certain ideology of 'gender'" for the pernicious developments he saw in the laws governing marriage and de facto unions. Cardinal Alfonso Lopez Trujillo, President, Pontifical Council for the Family, Presentation on Family, Marriage, and "De Facto" Unions (July 26, 2000), available at http://www.vatican.va/roman-curia/ pontifical-councils/ family/documents/rc-pc-family-doc-20001109-de-facto-unions-en.html ("Claiming a similar status for marriage and de facto unions (including homosexual unions) is usually justified today on the basis of categories and terms that come from the ideology of gender.'").
46. She may have been influenced by her own marriage to Martin Ginsburg, by all accounts a true partnership, in which they jointly decided on a career in law, broke, with stereotypes in their division of household tasks (he did the cooking, for example), and cooperated, on the early Moritz case, at the intersection of his specialty and hers-tax law and sex discrimination. See, e.g., FRED STREBEICH, EQUAL: WOMEN RESHAPE AMERICAN LAW 12-13,24-25 (2009).
47. 411 U.S. 677 (1973).
48. Id. at 680.
49. Id. at 68.5;
50. cf., e.g., Brief of Appellant at 28,
51. Reed. v. Reed, 404 U.S. 71 (1971) (No. 70-4) ("Prior to the. Civil War, die legal status of women in die United States was comparable to diat of blacks under the slave codes.... Neither slaves nor married women had the legal capacity to hold property or to serve as guardians of their own children. Neither blacks nor women could, hold office, serve on juries, or bring suit in their own names.").
52. See Mary Anne Case, Pets or Meat, 80 CHI-KENT L REV. 1129,1133 (2005).
53. 1 WILLIAM BLACKSTONE, COMMENTARIES ch. 15 (Morris Wayne 2001) (1793) ("Of Husband and Wife").
54. Case, supra note 1.3, at. 1768
55. (citing Joan S. Kohout, 77i¿ Right o/Women to Use Their Maiden Norries, 38 ALB. L REV. 105 ( 1973)).
56. Id.
57. See id. For an analysis of similarities in attitudes toward pets, slaves, and wives, see Case, supra note. 41, at 1132.
58. Bradwell v. State, 83 U.S. 130,141-42 (1.873) (Bradley, J., concurring).
59. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (holding unconstitutional the provision of social security survivor's benefits only to mothers and not to fathers).
60. Stanton v. Stanton, 421 U.S. 7, 14-15 (1975) (striking down differential ages of majority for boys and girls).
61. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003) (upholding Congress's power to apply the Family and Medical Leave Act. to the states).
62. Rehnquist: ERA Would Threaten Family Unit, LEGAL TIMES, Sept. 1.5,1986, at 4.
63. 118 CONG. REC. 9315 (1972) (Senator Sam Ervin quoting testimony of Paul Freund).
64. The first. U.S. Supreme Court, case invalidating any sex discrimination in the law was Reed v. Reed, 404 U.S. 71 (1971), which struck down categorical preference for males over females in the appointment, of estate administrators.
65. 388 U.S. 1 (1967) (holding state bans on interracial marriage an unconstitutional denial of equal protection even when equally applied, to blacks and whites).
66. Baker v. Nelson, 191 N.W.2d 185,187 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972) (holding that a state's denial of a marriage license to a male couple did not violate, die U.S. Constitution).
67. Id. at 186.
68. Jurisdictional Statement at 4, Baker v. Nelson, 409 U.S. 810 (1.972) (No. 71-1027).
69. Alternative Writ of Mandamus, Hennepin County District Court, Jurisdictional Statement app. at 11a, Baker v. Nelson, 409 U.S. 810 (1972) (No. 71-1027).
70. KAY TOBIN & RANDY WICKER, THE GAY CRUSADERS 145 (Arno Press 1975) (1972).
71. Id.
72. Jack Star, The Homosexual Couple, LOOK, Jan. 26, 1971, at 69, 70.
73. TOBIN & WICKER, supra note 58, at 150. At the risk of stating the obvious, let me note how perfectly these identical outfits combined the bride's traditional color with the groom's traditional garb.
74. Jurisdictional Statement app. at 6a,
75. Baker v. Nelson, 409 U.S. 810 (1.972) (No. 71-1027)
76. (quoting MINN. STAT. §517.09 (1971), omenfled fay MINN. STAT. §51.7.09 (1979)).
77. Not all the legal consequences described below were part, of Minnesota law in 1970, however.
78. Minnesota wives had been accorded claims for loss of consortium by 1969, but, as late as 1977, a Minnesota treatise noted that, this remained, one of the "legal remedies unavailable [to wives] in most States." ELLEN DRESSELHUIS, THE LEGAL STATUS OF HOMEMAKERS IN MINNESOTA 6(1977).
79. See Frontiero v. Richardson, 411 U.S. 677, 688-91 (1973).
80. 440 U.S. 268, 278-80 (1979).
81. 450 U.S. 45.5,458-60 ( 1981 ).
82. Brief of Appellee at. 21,
83. Baker v. Nelson, 409 U.S. 810 (1972) (No. 71-1027).
84. McConnell v. United States, No. 04-2711, 200.5 U.S. Dist. LEXIS 1313, at *3 (D. Minn. Jan. 3, 2005), affd, No. 05-1781, 2006 U.S. App. LEXIS 17932 (8th Cir. July 17, 2006). And increased, benefits were only awarded to veterans whose spouses depended financially on them. There might be objections from a feminist or other standpoint to the extent, to which the law, particularly the tax law, disfavors equal earning couples and encourages marital role differentiation along the lines of the traditional role differentiation of husband, and wife. But the importance of "fixed roles" in marriage no longer being legally assignable by sex should not be underestimated. Precisely because from time to time, they may play different roles, without "male-female role playing" and despite both being men, Baker and McConnell in their spousal relationship embody the mandate against "fixed notions concerning the roles and abilities of males and females."
85. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 72.5 (1982).
86. A case decided shortly after Baker, Singer v. Ham, 522 P.2d 1187 (Wash. Ct. App. 1974), also disposed of same-sex marriage claims on state constitutional grounds, holding, after considering evidence of voter intent, that. Washington's then recently approved, state constitutional Equal Rights Amendment did not extend the right to marry to same-sex couples.
87. Baehr v. Lewin, 852 P.2d 44, 63-64 (Haw. 1993).
88. I use stereotype here in the sense of an archaic normative template for a given sex, as well as an imperfect descriptive proxy. See Case, supra note 3, at 1486-90 for further discussion of the relationship between constitutional antistereotyping doctrine and sex discrimination challenges to bans on state recognition of same-sex marriage, including the federal Defense of Marriage Act. 73. Baehr v. Miike, No. 91-1394, 1996 WL 694235 at *18 (Haw. Cir. Q. Dec. 3, 1996), affd, 9.50 P.2d 1234 (Haw. 1.997).
89. Id. at *17.
90. HAW. CONST, art. I, §23, ('The legislature shall have the power to reserve marriage to opposite-sex couples.").
91. Kerrigan v. Comm'r of" Pub. Health, 957 A.2d 407 (Conn. 2008);
92. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009);
93. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
94. Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006).
95. Baker v. State, 744 A.2d 864 (Vt. 1999).
96. Id. at 880 n.13 (internal citations omitted).
97. Id. at 906 n.10 (Johnson, J., concurring in part and dissenting in part). She could, have gone on to say that, under the majority's reasoning, even a statute, that required courts to give custody of female children to fathers and. male children to mothers would not be sex discrimination. Such a statute could, perhaps, be. argued, to have the rational basis of facilitating successful resolution of the Oedipus complex.
98. In re Marriage Cases, 183 P.3d 384,439-41 (Cal. 2008).
99. McCabe v. Atchison, Topeka 6k Santa Fe Ry., 235 U.S. 151, 161-62 (1914) (rejecting the argument that limited demand by blacks justified, providing sleeping cars only for whites).
100. See Mary Anne Case, Of Richard Epstein and Other Radical Feminists, 18 HARV. J.L. & PUB. POL'Y, 369, 382-83 (1995);
101. Mary Anne Case, Reflections on Constitutionalizing Women's Equality, 90 CAL. L. REV. 765, 769 (2002) [hereinafter Case, Reflections];
102. Case, supra note 3, at 1450.
103. Bolter, 744 A.2d at 906 (Johnson, J., concurring in part and dissenting in part).
104. Case, supra note 3, at. 1472.
105. Id. at 1473.
106. See, e.g., Case, Unpacking, supra note 21.
107. Jespersen v. Harrah's Operating Co., 444 F.3d 1104,1107 (9th Cir. 2006).
108. Id. at. 1108.
109. See Schroer v. Billington, 577 F. Supp. 2d 293, 304 (D.D.C. 2008) (distinguishing Jespersen from the case of an MTF transsexual).
110. Jespersen, 44 F.3d at 1106, 1112;
111. see also id. at 1.117 (Kozinski, C.J., dissenting) (criticizing the majority for wrongly presupposing that Jespersen is idiosyncratic).
112. 490 U.S. 228, 235, 2.51 (1989) (holding it to be impermissible sex discrimination to demand of a female candidate for an accounting partnership that, she "walk more femininely, talk, more femininely, dress more femininely, wear make-up, have her hair styled,... wear jewelry," and go to "charm school").
113. See Case, Disaggregating, supra note 21.
114. 518 U.S. 51.5 (1996).
115. Id. at 565 (Rehnquist, C.J., concurring).
116. Transcript of Oral Argument, at. 18, United States v. Virginia, 51.8 U.S. 51.5 (1996) (No. 94-2941 ); Case, supra note 3, at 1476.
117. VT. STAT. ANN. tit. 15, §1204(a) (2002). As of 2009, Vermont opened, civil marriage to all couples, but it never opened civil union to any male-female couples, and bifurcated, regimes in which no same-sex couples may marry remain in a number of other states.
118. Amended. Complaint at 4, McSally v. Rumsfeld, C.A. No. 01.-2481. (D.D.C. filed Dec. 3, 2001). McSally's case was mooted by congressional action vindicating her position. See Case, Fundamentalism and Citizenship, supra note 1, at 128 (deploring Congress's focus, in providing McSally a remedy, on her religious liberty claim rather than her claim to be free, of unconstitutional sex discrimination).
119. Case, Fundamentalism and Citizenship, supra note 1, at 127.
120. This is a claim I first made in Case, Reflections, supra note 83, at 787-89.
121. See, e.g., 1 HISTORY OF WOMAN SUFFRAGE: 1848-1861, at 260-61 (Elizabeth Cady Stanton et al. eds., 1881) (setting forth text of 1855 Marriage Protest of Lucy Stone and. Henry Blackwell).
122. See, e.g., Irizarry v. Bd. of Educ, 251 F.3d 604, 607 (7th Cir. 2001) (holding that "a nationwide policy in favor of marriage" for heterosexuals made it constitutional to limit health benefits for unmarried domestic partners of government employees to partners who were of the same sex as the employee).
123. Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006).
124. Id. at. 8.
125. Id.
126. Baker v. State, 744 A.2d 864,906 (Vt. 1999) (Johnson, J., concurring in part and dissenting in part).
127. Id. at 906,908.
128. Id. at 909 (citation omitted).
129. Id.
130. Richard v. Richard, 300 A.2d 637, 641. (Vt. 1973).
131. Cf. Michel Foucault, Sexual Choice, Sexual Act: An Interview With Michel Foucault, SALMAGUNDI, Fall 1982-Winter 1983, at 10,22 ("I think that what most bothers those who are not gay about gayness is the gay life-style, not sex acts themselves...It is the prospect that gays will create as yet unforeseen kinds of relationships that, many people cannot tolerate.").
132. See supra note 50 and accompanying text.
133. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 730 (2003).
134. 511 U.S. 127 (1994) (holding sex-based peremptory challenges of jurors an unconstitutional violation of equal protection despite evidence of equal application to both sexes).
135. I note with particular concern that an appeal in Perry will go to die very Ninth Circuit which en banc decided the statutory Jespersen case, in which, as I argue supra in text accompanying notes 88-93, it evidenced unjustifiable deference to claims of equal application in disregard, of binding Supreme Court precedent.
136. That Olson and Boies view the sex discrimination argument as an also-ran is apparent in their litigation documents, beginning with the Complaint, whose "Claim Two: Equal Protection" devotes several paragraphs to explaining how Proposition 8 makes "[g]ays and lesbians... unequal in the eyes of the law," before tacking on, almost, as an afterthought at the end. of their equal protection claim, "Prop. 8 also violates the Equal Protection Clause because it discriminates on the basis of sex."
137. See Complaint at. 41-2, Perry v. Schwarzenegger, No. 09-CV-2292 VRW (N.D. CaI. argued Jan. 11, 2010).
138. See Transcript of Trial at 26-28, Perry v. Schwarzenegger, No. 09-CV-2292 VRW (N.D. Cal. argued Jan. 11,2010).
139. Even earlier in his opening statement, Olson had missed, another big opportunity to highlight the sex discrimination argument. Asked by Judge Walker, whether "it's possible that, opposite-sex couples could fonn a domestic partnership and register under California law," Olson initially answered, "I know nothing that would, suggest, that it would be exclusive to same-sex couples," leading Walker to demand, "AU right. So where's the discrimination here?" Id. at 24. Had Olson been well-infonned as to the actual law in California, which excludes the mine-run of opposite sex couples from domestic partnership, he could have highlighted, as I did in this Article, the ways in which this discriminatory exclusion hurts not only gays and lesbians, but heterosexuals and sex equality.
140. Id. at 28. Olson is regrettably not alone in failing to foreground, or even to mention, the changes in marriage from the perspective, of sex discrimination when listing the changes in marriage relevant to a claim for same-sex marriage. Thus, for example, in a book, arguing for same-sex marriage, Bill Eskridge and his coauthor list as relevant only "three different kinds of family law liberalizations": 1) marriage no longer has a monopoly on sex and parenting; 2) "sex within marriage no longer has to be procreative" and. 3) "marriage, is easier to exit." WILLIAM N. ESKRIDGE, JR. & DARREN R. SPEDALE, GAY MARRIAGE: FOR BETTER OR FOR WORSE? 185-86 (2006). They would have done well to begin their list with the liberalization entailed in the abolition of legally enforced sex roles. Although long a supporter of the sex discrimination argument, Eskridge has unhelpfully and. inaccurately labeled it as having "a transvestic quality, dressing up gay rights in sex equality garb."
141. See, e.g., William N. Eskridge, Jr., Multivocol Prejudices and Homo Equality, 74 IND. L.J. 1085,1110 (1999).
142. Respondents' Opening Brief on the Merits at 39-50, 43, In re Marriage Cases, 183 P.3d 384, (Cal. 2008) (No. S147999) (discussing California case law and legislation that, shows "[t]he exclusion of same-sex couples from marriage, is a relic of an era in which the rights and duties of spouses were defined by sex").
143. Transcript of Trial at 184, Perry v. Schwarzenegger, No. 09-CV-2292 VRW (N.D. Cal argued Jan. 11,2010).
144. See, e.g., NANCY F. COTT, THE GROUNDING OF MODERN FEMINISM 179-211 (1987) (describing the early 20th century evolution of gender roles in the family).
145. See NANCY F. COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION 205, 206 (2000). The book, makes no mention of Ruth Bader Ginsburg in the index and Justice Bradley makes it into die index only for his opinion in a case related to polygamy; there is no mention of Brodwell.
146. See id. at. 287, citing to id. at 119-20.
147. DAVID BLANKENHORN, FATHERLESS AMERICA: CONFRONTING OUR MOST URGENT SOCIAL PROBLEM 119-21 (1995).
148. 124- Thus, when defendant-intervenors assert that "Proposition 8 was not designed to reflect or promote improper gender stereotypes," Defendant-Intervenors' Proposed Findings of Fact at 14, Perry v. Schwarzenegger, No. 09-CV-2292 VRW (N.D. Cal. argued Jan. 11, 2010), but, following Blankenhorn's lead and relying on his testimony, also assert that "[extending marriage to same-sex couples would contribute to significantly changing the legal and public, meaning of marriage from an institution with defined legal and social structure and purposes to a right of personal expression," id. at. 25, "would weaken the idea that each parent, both mother and father, makes a unique contribution to parenting," id. at 26, and "would legally enshrine the principle that sexual orientation, as opposed to sexual embodiment, is a valid determinant of the structure and meaning of marriage," id. at 27, they are contradicting themselves.
149. See supra notes 33-35 and accompanying text.
150. The argument I'm making here, can perhaps be extended to judges such as California's Chief Justice. George, who authored the opinion In re Marriage Cases explicitly rejecting sex discrimination while elevating orientation discrimination to heightened scrutiny. See supra note 7. The argument, resembles one made by Jennifer Levi in the context of dress code cases like. Jespersen. Levi argues that judges who reject, a sex discrimination claim in deciding such cases adversely to plaintiffs may suffer from empathy problems, either because they view their own compliance with sex-specific dress codes as no big deal or alternatively they may feel that if they can do the hard work, of confonning to such codes, plaintiffs should too.
151. See Jennifer Levi, Some Modest Proposals for Challenging Established Dress Code Jurisprudence, 14 DUKE J. GENDER L. & POL'Y 243, 246 (2007).
152. Bowers v. Hardwick, 478 U.S. 186,191 ( 1986) ( upholding criminalization of private consensual adult homosexual sodomy).