Bench Memos

Law & the Courts

Re: It Ain’t in There

Following up on my earlier post here, it occurs to me that perhaps the basic flaw in the argument — that a ban on same-sex marriage is sex discrimination because Jill can marry John but Bill can’t — is that it assumes that if a law considers sex then it must be sex discrimination.  But this is not so if the reason sex is looked at is only because it is essential to make some other classification that is not about what sex someone is. Sometimes you have to look at a characteristic in order to make a classification that is really not about that characteristic, but about something quite distinct from it.

Thus: You have to look at whether two people are male or female to see if their relationship is heterosexual or homosexual, but that doesn’t mean that the male-female distinction is the same as the heterosexual-homosexual distinction. 

And maybe this analogy would be useful: Suppose that a company announces that it will start giving each employee a $100 gift certificate on his or her birthday. The new policy is immediately challenged by a cranky employee on the grounds that it is age discrimination. “If I were few months younger, I would get a gift certificate today,” he cries. “O woe is me!” 

Well, yes, maybe in a sense this is “age discrimination,” just as in a sense maybe a ban on gay marriage is “sex discrimination.” But not really, or at least not in the way that “age discrimination” and “sex discrimination” are generally understood. 

Yes, you have to look at an individual’s date of birth to determine if it is his birthday, and you have to look at an individual’s date of birth if you are engaging in age discrimination.  Likewise, you have to look at an individual’s sex to see if that individual’s marriage to a male would result in a same-sex marriage, and you have to look at an individual’s sex if you are engaging in sex discrimination.  But giving someone a birthday gift is not really age discrimination, and banning same-sex marriage is not really sex discrimination. It’s not just that you have a different reason for looking at the birth date and sex in the two different instances, but that you are looking at it to make a different sort of classification — one that is not about sex in one case, and one that is not about age in the other.

I might call the sex-discrimination argument that my opponents are making a semantic sleight-of-hand, but I’m willing to be a little more charitable than that. John Derbyshire once wrote in these pages that “legal logic is a special kind of logic, that doesn’t yield easily to syllogistic analysis.”  He was right (about that).  Better, Robert Bork once began a lecture at the American Enterprise Institute with this story:

It is said that, at a dinner given in his honor, the English jurist Baron Parke was asked what gave him the greatest pleasure in the law. He answered that his greatest joy was to write a “strong opinion.” Asked what that might be, the baron said, “It is an opinion in which, by reasoning with strictly legal concepts, I arrive at a result no layman could conceivably have anticipated.”

Here’s hoping no justice will write an opinion here that would make Baron Parke proud.

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