On Public Discourse, Sherif Girgis has a fine essay explaining why state laws that define marriage as the union of a man and a woman should not be subjected to heightened scrutiny as sex discrimination. An excerpt:
In none of the typically suspect groupings (racial, ethnic, etc.) do the very categories of the grouping have any inherent positive (or negative) connection to a legitimate political end. They have such a connection, if at all, only by virtue of contingent and changeable social or cultural goals. Those goals have often been malign. So it makes sense not to presume their legitimacy, and to devise rules for scrutinizing them—as the Court has done.
But the male-female sexual grouping is necessarily linked, by the concepts involved, to a social purpose we did not simply invent and can scarcely do without: society’s reproduction. In this way, the classification in marriage laws differs from any racial grouping, even from other sex classifications.
One of the scholars whose contrary conclusion Girgis disputes is Steve Calabresi, who in this short, curious article argues:
State laws that ban same sex marriage formally discriminate on the basis of sex in the same way that State laws that banned interracial marriage discriminated on the basis of race. Same sex marriage laws [sic] allow a man to marry a woman but not another man. This is, again as a formal matter, sex discrimination plain and simple.
I find Calabresi’s reliance on formal discrimination especially puzzling. In his article three years ago on “Originalism and Sex Discrimination”—which I critiqued in a series of posts (links here)—Calabresi argued that the Fourteenth Amendment “was meant, as an original matter, to forbid class-based legislation and any law that creates a system of caste.” If he were faithful to the approach he took in that article, he would explore whether laws that define marriage as the union of a man and a woman treat women as a caste—and he would, I think, have to answer that question no. But instead he doesn’t even address it.
Sex-segregated public bathrooms, I’ll note, surely also involve formal discrimination on the basis of sex. Under Calabresi’s new reasoning, states could maintain such bathrooms only if they can offer an “exceedingly persuasive justification” for them. I think that’s a conclusion that any originalist ought to find ridiculous.