Discrimination Based on Sexual Orientation Should Be Presumed Unconstitutional

For forty years, the Supreme Court has held that the government may not impose laws that treat men and women differently based on an ‘interest’ in perpetuating traditional gender roles. The Court should also hold that the government may not decide who is permitted to marry based on traditional gender stereotypes about who men and women should love, the National Women’s Law Center argued in an amicus brief filed today in Hollingsworth v. Perry—the case in which the Supreme Court will decide the constitutionality of Proposition 8, the California ballot measure that overturned the California Supreme Court's ruling that same-sex couples have a right to marry. Tomorrow, the Center will file the same brief in United States v. Windsor, the case before the Supreme Court challenging the constitutionality of the provision of the Defense of Marriage Act (DOMA) that bars the federal government from recognizing marriages of same-sex couples.

In the brief, coauthored with the Williams Institute of UCLA and joined by women’s legal groups and legal scholars, NWLC argued that laws discriminating on the basis of sexual orientation, like Proposition 8 and DOMA, must be subject to heightened scrutiny under the Constitution’s equal protection guarantee, as are laws that discriminate on the basis of race or sex. Heightened scrutiny as applied to sex discrimination means that a law is presumed unconstitutional, and will only be upheld if it is shown to be based on an exceedingly persuasive justification and at least substantially related to an important government interest. One of many important reasons why heightened scrutiny should also apply to sexual orientation discrimination, the brief explains, is the close connection between laws that treat men and women differently based on stereotyped assumptions about what is appropriate for each sex and laws that treat people differently on the basis of sexual orientation, founded on stereotyped assumptions about appropriate intimate relationships for men and women. In both contexts, the Constitution should provide strong protection against government efforts to perpetuate traditional, stereotyped gender roles, the Center’s brief argued. The cases will be argued in March and decided in June.