Positive Liberty

I know that its authors did not intend this outcome, and I know that in the seventies they strenuously rejected it. But I am inclined to think that the Equal Rights Amendment, now known as the Women’s Equality Amendment, would protect same-sex marriages under the United States Constitution.

For this and for many other reasons, I support it. I find the new name troubling, however: Nothing in the amendment singles out women, and men should clearly be included as well.

The skeptics might hope — for whatever reason — that the WEA does not lead to same-sex marriage. Yet consider the reasoning found in Deane v. Conway, Maryland’s same-sex marriage decision, which now under review. It used some nearly identical constitutional language to strike down Maryland’s gender-specific marriage law.

Here is the proposed federal ERA:

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

And here is Maryland’s, which is current Maryland law:

Equality of rights under the law shall not be abridged or denied because of sex.

As Deane would have it,

The court finds unpersuasive the arguments of Defendants and others that statutory prohibitions on same-sex marriage do not create gender-based classifications because each prohibition applies equally to both sexes. These arguments are illogical and inaccurate. The equal application theory must be rejected because the theory has already been addressed and rejected in Maryland. Burning Tree Club, Inc. v. Bainum (Burning Tree I) 305 MD. 53, 501 A2d 817 (1985); Giffin v. Crane 351 MD 133, 716 A.2d 1028 (1998). Proponents of the equal application theory argue that prohibiting same-sex marriage does not constitute gender discrimination because all men and all women are equally precluded from marrying someone of their own sex; neither gender has greater or lesser rights than the other… According to this theory, no gender classification exists and a state’s Equal Rights Amendment is not implicated. Thus, a state need not show that compelling interests support its discrimination.

Proponents of the equal application theory distinguish statutory bans on same-sex marriage from the now defunct anti-miscegenation statutes prohibiting marriage between interracial couples. In Loving v. Virginia, where the Supreme Court struck down Virginia’s anti-miscegenation statute, Virginia advanced an equal application theory to defend the statute prohibiting interracial marriage… However, the Supreme Court struck down the statute, finding that the State did not meet its heavy burden of justifying the racial classification. Courts finding same-sex marriage bans constitutional declare their holdings consistent with Loving’s holding because of key factual and logical differences between the two cases. This Court is unpersuaded that sufficient differences exist to distinguish the cases…

It makes little sense… to deny that the same-sex prohibition created a gender-based classification; and, then to state that the “operative distinction” between Loving and the same-sex marriage case is the legal union of a man with a woman. Despite the insistence that no gender classification exists, the relative genders of a same-sex couple are the very crux of the matter.

Lastly, and before anyone overthinks this, I assure you that I have no secret desire to see this amendment fail. This is most emphatically not a tactical post aimed at poisoning the well. I have always supported the idea that two adults should be able to get married regardless of their gender. I would even stand a lot to gain if my own marriage were legally recognized. This might be the simplest way to do it — but even if I’m wrong, I still think that the ERA is only fair, and that the law should be gender-blind whenever it can be.

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