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Thursday, January 16, 2014

Gender Diversity and Same-Sex Marriage

The recent district court decisions regarding same-sex marriage in Utah and Oklahoma have drawn a great deal of attention in the past few days.  The Tenth Circuit is a particularly interesting venue for adjudication given what we might infer about the ideological composition of the court.  Currently the court has five Republican appointees and five Democratic appointees, but just today nominees Carolyn McHugh and Nancy Moritz were voted out of the Senate Judiciary Committee, which would make the court seven-to-five in favor of Democratic appointees.  While I don't want to overstate the importance of a nominee's political background -- which I think has sometimes been exaggerated in the same-sex marriage cases -- the potential new additions to the court would create a particularly engaging scenario were the Tenth Circuit to take the case en banc.

Rather than retread ground others have covered, I want to focus on a particularly odd argument that the state of Utah recently raised in its brief to the Supreme Court requesting a stay of the district court's judgment pending appeal.  Utah makes three arguments.  The first two are familiar to everyone who has followed the same-sex marriage cases: that "traditional marriage marriage reinforces responsible procreation" and that "children generally fare best when reared by their two biological parents in a loving, low-conflict marriage."  Others have addressed -- and in my view, pretty thoroughly debunked -- these arguments.

The third argument might charitably be described as more creative.  The state argues that "society has long recognized that diversity in education brings a host of benefits to students," and "[i]f that is true in education, why not in parenting?"  If I read the brief correctly, the idea is that having one male and one female parent will provide children with benefits that surpass those provided by having either two male or two female parents.  As the state puts it: "the combination of male and female parents is likely to draw from the strengths of both genders in a way that cannot occur with any combination of two men or two women, and that this gendered, mother-father parenting model provides important benefits to children" (emphasis theirs).

The first problem with this argument is that it relies on unexamined assumptions about gender.  What, exactly, are the "strengths of both genders"?  What strengths do women inherently have that men inherently lack?  What strengths do men inherently have that women inherently lack?  Within any two-person relationship, of course, the people involved will have different strengths.  But these strengths map very loosely, if at all, onto gender.  One can find both men and women who possess any conceivable personality trait, and who engage in any given part of the spectrum of child-rearing responsibilities.  Some men are more nurturing than their partners, and so are some women.  Some women are more aggressive than their partners, and so are some men.  Some women stay home with their children, and so do some men.  Some men cook and do dishes, and so do some women.  Some women fix cars, and so do some men.  All of this is potentially valuable in a marital or parenting arrangement.  But none of it is inherently associated with gender.  And so there's no reason to assume that a diversity of parental attributes is more likely to occur in an opposite-sex marriage than a same-sex one.

The second problem is that the "traditional marriage as gender diversity" argument draws an inapt parallel between education and marriage.  Even if we agree that diversity is a good thing in education, that doesn't mean that the same holds true for marriage.  Admitting a class of students involves bringing together hundreds or thousands of people with different characteristics and different life experiences.  No individual student is presumed to bring any specific quality to the table based on gender, race, sexual orientation, class, or other attributes.  Rather, in the aggregate, a diverse student body provides benefits because bringing together enough people from different backgrounds improves the learning experience.  In contrast, marriage is simply a different endeavor.  At least as the state's brief envisions it, marriage involves only two people, and the claim that traditional marriage promotes gender diversity inherently requires a presumption that men will behave one way and women another.

The argument is also poor strategy.  Several of the justices on the Court are openly contemptuous of diversity as a rationale for affirmative action.  In Grutter v. Bollinger, for example, Justice Thomas slightingly described diversity as "more a fashionable catchphrase than it is a useful term," and a school’s interest in diversity as an "aesthetic" desire to "have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them."  These are not exactly the words of a justice looking to provide additional support for the diversity rationale by tethering it to arguments against same-sex marriage.

And finally, it seems to me that the argument works far better as an argument in favor of certain types of relationships that lead to non-traditional parenting -- specifically, polyamory and parenting arrangements that involve more than two people.  Assuming for the sake of argument that two people of different genders bring different qualities to the table, and that this is good for children, wouldn't it be even better for a child to have three parents?  Or five parents?  Preferably with at least one parent who rejects binary notions of gender, and chooses to identify as neither a man nor a woman?  If we assume that Utah is right about the benefits of gender diversity in marriage, it seems to me that such parenting arrangements would provide even more of the gender diversity benefits that Utah envisions.  But I seriously doubt that this line of reasoning is what Utah intends.

In short, this argument seems like a pretty bad one -- at least insofar as it's intended to support a prohibition against same-sex marriage.  And perhaps it's an indication of exactly how far marriage equality opponents are reaching these days to find support for their position.

(cross-posted at nancyleong.com)

Posted by Nancy Leong on January 16, 2014 at 03:44 PM in Constitutional thoughts, Gender | Permalink


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It's a crazy argument, isn't it? It dates back at least a couple of years. Lynn Wardle made the argument at the St. John's symposium in 2010. That's the first time I heard it articulated.

To give Wardle credit, the argument is (1) not blatantly homophobic (i.e., not based on an idea that LGBTQ people are icky) and (2) on the face of it, seeming to accept some progressive ideas.

That said, it's also an argument that's completely ridiculous. It just doesn't _work_, which suggests that it's a smoke screen.

Posted by: Kaimi Wenger | Jan 30, 2014 3:31:50 PM

I personally find the gender diversity argument laughable. It is impermissible gender stereotyping dressed up in a poor analogy.

Furthermore, it seems to me this argument leads inevitably to the application of intermediate scrutiny, because it confesses that bans on same-sex marriage are an effort to regulate gender (a point which should be obvious from the reliance on facial gender classifications (!), and yet some courts have rejected this notion based on a specious, Plessy-style equal application theory).

Posted by: Susannah Pollvogt | Jan 18, 2014 10:59:08 AM

The logic of the State's argument would require that people of the same race/religion/ethnic group not be permitted to marry.

Posted by: Howard Wasserman | Jan 17, 2014 5:26:47 PM

The diversity argument to me is generally used to provide a diverse set views and so forth to education, the workplace etc. The argument here seems somewhat ironic -- doesn't same sex marriage ADD to diversity overall by adding one more option, adding to the diversity of marriage?

What is particularly unique about gender to add to diversity here as compared to other things? Let's say that two spouses are different races. Wouldn't this add diversity in another way? The argument is let's be honest here makeweight and forced, as arguments for discrimination tend to be. But, if we want to pretend to take it seriously, doesn't work unless different sexes are particularly important to marriage even if it INHIBITS diversity in the process.

Posted by: Joe | Jan 17, 2014 12:06:29 PM

Thanks very much to all for the helpful comments.

@TJ, I suppose I'm a little less confident than you that Kennedy will buy the diversity argument. He dissented in Grutter, and the Fisher opinion was hardly a ringing endorsement of the diversity rationale. That said, you could be right; it seems to me that Kennedy is one of the justices more willing to revise his views with the benefit of time (see, e.g., the Saucier --> Pearson progression) and I actually think that it's a good thing when justices' views evolve. (I may post on this later this month.)

@Asher, thanks for spelling out the argument this way. It's very helpful. I'd certainly agree with you as to the benefits of gender diversity on college campuses and in child-raising by villages, and you make a good point that rational basis review is so low that just about anything will pass constitutional muster. Tentatively, though, I think I disagree with the idea that the state's only way of delivering strengths to children that are weakly correlated with being male or female is by banning same-sex marriage. For example: The state could legalize marriages involving 3 or more people. The state could require prospective married couples to take a test measuring various personality traits, and only couples who were sufficiently different could marry. Both of these ideas are implausible and perhaps undesirable, but I'm just not sure I agree that if the state's goal is *really* the delivery of the strengths weakly correlated with gender diversity that there aren't other ways of achieving that goal.

More importantly, though, what your comment really demonstrates is the importance of the standard of review. If it really is rational basis, perhaps the gender diversity argument would survive. (I'm admittedly still skeptical.) But the SCOTUS cases from last term suggest that perhaps the standard of review is something more than rational basis, and Judge Shelby leaves that door wide open as well. Particularly if the standard of review is anything more than rational basis I'm dubious that the gender diversity argument would carry the day.

@adamb, I agree with your analysis of Windsor, and your comment nicely emphasizes one of the (many) reasons that Kitchen v. Herbert is something of a wildcard. It seems to me that this also goes back to the previous point Asher's comment raises (i.e., the importance of the standard of review).

Other thoughts welcome. From a selfish perspective, it's an exciting time to live in a Tenth Circuit state.

Posted by: Nancy Leong | Jan 17, 2014 11:42:15 AM

If this case gets to SCOTUS, the outcome will turn on whether the states must adhere to the same constitutional principles as the federal government. Windsor makes the answer unclear because the decision did not clearly state why DOMA ran afoul of Fifth Amendment due process, which is explained mostly in two paragraphs. When I read the decision, it seemed to imply more than it actually said. Lots of reading between the lines.

So Windsor leaves a lot of room for possibly distinguishing the Utah ban from the DOMA ban.

Posted by: adamb | Jan 17, 2014 11:12:07 AM

Here's a thought in defense of Utah, or two. I think your argument is that, while in the aggregate there might be some differences between men and women - I believe you'd concede that there are educational benefits to gender diversity on a college campus - the variation between genders is so irregular, though perhaps not nonexistent, that the chance any given same-sex couple will offer their children a lesser diversity of "strengths" than a mixed-sex couple is rather low. There are plenty same-sex couples with a wide and divergent array of strengths, and plenty mixed-sex couples whose members have the same strengths as each other. So to pick one of your examples, if one gender, in the aggregate, is a little more nurturing than another, or even just nurturing in a different way than the other, you'd concede that in a world where children were raised by villages it would be better for them to be raised by mixed-sex villages than same-sex villages. But given that the correlation between gender and nurturing is fairly low, such that the odds a mixed-gender couple will have one really nurturing parent are barely higher than the odds a same-sex couple of the less nurturing sex will have one really nurturing parent, you don't see an advantage in gender diversity within married couples. And I guess what I'd say to that is that depending on what level of scrutiny we're applying, even a very small increased chance of diversity in parents' "strengths" might satisfy the means-end fit that level of scrutiny requires. If the high likelihood of diversity in perspective and experience that flows (or was said to flow) from racial diversity in a population of however many hundreds of students attend Michigan Law satisfies strict scrutiny, might not a marginally increased chance of diversity in parents' strengths that flows from mixed-sex couples satisfy rational basis? Consider too that, while requiring mixed-sex marriages is a phenomenally crude way of delivering to children whatever "strengths" are weakly correlated with being male or female, it isn't as if the state has other obvious ways of doing it. The state might try to hire a gender-diverse body of elementary school teachers, but not all children go to public schools, they don't start until a certain age, and their parents have a greater influence on them than their teachers.

Posted by: Asher | Jan 16, 2014 8:03:01 PM

I think you've got the vote counting wrong. Sure, Justice Thomas will have no sympathy for the diversity argument. But I'm pretty sure Utah has Justice Thomas's vote no matter what they argue. Utah is clearly angling for the vote of Justice Kennedy, who is hardly contemptuous of the diversity argument in the affirmative action context. The analogy still seems forced to me, but it is not nearly as stupid a strategic move as you seem to think it is.

Posted by: TJ | Jan 16, 2014 6:21:18 PM

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