The protection of women was not fully contemplated at the time as it was generally held in legal circles that the rights of women were vested in their husbands or fathers, rather than being exercisable by women on their own behalf.

Not surprisingly, though, a society that had always held blacks to be inferior to whites did not suddenly become an egalitarian utopia of racial equality simply because the amendment had been ratified. So, for nearly the first hundred years of its existence, the Supreme Court rendered the 14th amendment largely powerless.

It wasn’t until the 1930’s and 40’s that the amendment was finally used to provide real protections of African-Americans. Even then, it took another twenty years before a clear constitutional framework for protecting ethic minorities from discrimination began to take shape. The Warren Court established that laws that are disadvantageous to a suspect class of individuals must be subjected to heightened judicial scrutiny. Suspect classes now include distinctions based on race, national origin, and gender. Additionally, any law that served as a limitation on a fundamental right was also to be subjected to heightened scrutiny.

Equal Protection and Anti-Miscegenation Laws

At one point in our history, as many as 40 states had laws banning inter-racial marriage. By 1967 many states had struck down those laws independently, though they still existed in 16 states, when the Supreme Court heard the now famous case Loving v. Virginia.

Richard Loving and Mildred Jeter, a white man and an African-American woman, were legally married in the District of Columbia in 1958. However, since they lived in Virginia, their marriage was a violation of state law. One night, local police officers entered their home and arrested them both, under Virginia’s anti-miscegenation law. They were sentenced to one year in jail, but the sentence was suspended on the condition that they both leave the state and not return for 25 years. After their convictions were upheld by the Supreme Court of Virginia, the Lovings appealed to the US Supreme Court.

In a stirring opinion, Chief Justice Warren wrote, “there is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.” The decision indicated that because anti-miscegenation laws were based on the belief that white people were in some way superior to black people, and this was why they must not be allowed to create mixed race families, the laws ran counter to the 14th amendment and must be struck down.

This decision creates a great deal of support for the protection of same sex couples, however significant distinctions exist that must be dealt with before it can be said that a clear case in favor of gay marriage has been developed. Primarily, the kind of strict scrutiny to which anti-miscegenation laws were subjected does not apply to cases where the classification is not based on race, gender, religion or national origin. Sexual orientation has never been recognized as a suspect class.

Equal Protection and Women

If the 14th Amendment only applies to racial discrimination, then it provides little help to same sex couples wishing to get married. Discrimination against gays and lesbians is not the same as racial discrimination, no matter how similar. It really wasn’t until the 1970’s that the equal protection clause was ever successfully employed in the protection of women. At the time many states had laws barring women from such jobs as practicing law, working as bartenders, or even serving on juries. The Supreme Court had even specifically upheld many of these laws, despite the now obvious equal protection violations they presented.

In 1971 the court heard the landmark case Reed v. Reed, which for the first time applied the equal protection clause to gender discrimination. It was a time when such discrimination was finally gaining recognition as a real problem. In the fall of that year the Equal Rights Amendment had passed in the House of Representatives, and seemed likely to pass in the Senate as well, and many organizations had begun working toward the formal recognition of women as a protected class.

Important language came out of the next case to apply the equal protection clause to women. In Stanton v. Stanton, the court takes notice of the fact that “old notions” of gender roles are fast becoming obsolete, and thus laws that rely on those old notions are discriminatory in nature. This is important language, because once you rule out legislating gender roles, it becomes very difficult to justify legislating who may be married to whom based on gender roles.

Sex Discrimination and Discrimination Against Gay Men and Lesbians

On the surface, it is not difficult to equate sex-discrimination and anti-gay discrimination. It is a gender-based classification upon which same-sex marriage bans are based. Because of one’s gender, one is limited in who he or she may chose to marry. This is the argument most frequently made in litigation over the matter.

Given the use of gender as a classification, so the argument goes, the statue should be subjected to heightened scrutiny. This line of reasoning, while technically sound, falls short of convincing most courts to strike down discriminatory same-sex marriage laws.

A deeper analysis takes into account the reasons behind the classification, and identifies the underlying assumptions about sex and gender driving them. In her recent article, Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence,” Deborah Widiss identified the three most common arguments successfully made against same-sex marriage.

The first of these is that children require two opposite gender parents in the home for the optimal upbringing, the second is that the two genders form a complimentary pair, and thus both are necessary in a marriage, and the third is that the institution of marriage, as traditionally defined, protects vulnerable women and children from otherwise irresponsible men.

As Ms. Widiss points out, though, these arguments relies first and foremost on the idea that men and women are inherently so different, that both are necessary to parenting, or even for having an “actual” relationship. The fact is, this is simply another example of gender stereotyping, and under existing precedent the law cannot dictate that men and women act according to “old notions” of gender roles. Not to mention the numerous studies that exist showing no significant differences in the emotional well-being or long term success of children raised in diverse family structures.

All three of these arguments rest on the very gender stereotypes that have been used throughout much of history to place women in an inferior position to men. This is of significant importance, because in many of the cases where the court in Loving has drawn an analogy between prohibitions against same-sex marriage and the anti-miscegenation laws struck down, courts have found the analogy unconvincing. In that case, the court was well aware that despite the “equal application” of the prohibition to all races, the law was unfair because it was based on white supremacy.

Until courts are convinced that laws prohibiting same-sex marriage are based on gender-stereotypes, and thus on maintaining male supremacy, they will find the inherent classification based on sex relatively harmless. The case must be made that anti-gay bias in modern American society functions as a part of the larger system of social control based on gender.

Equal Protection and Same-Sex Marriage

As yet, there are no federal decisions regarding the applicability of equal protection to same-sex marriage. However, two states have used language very similar to federal equal-protection analysis in weighing state prohibitions on same sex marriage. In both cases, the state supreme courts held that the prohibitions wore violative of the states’ constitutional equal protection clauses.

Hawaii and Massachusetts have both produced decisions that support this type of analysis. In the Hawaiian case Baehr v. Lewin, the trial court ruled that the state had failed to meet its burden of proof in showing that there was a compelling state interest to justify the gender-based classification inherent in the state’s marriage law. On appeal, the state supreme court found that “by its plain language, the Hawaii Constitution prohibits state-sanctioned discrimination against any person in the exercise of his or her civil rights on the basis of sex.”

More recently, in Massachusetts, the state supreme court there said that a ban on same-sex marriage could not even be justified by any rational basis, and struck down discriminatory marriage laws. The ruling said that the state must not deny the “protections, benefits, and obligations” of marriage to individuals simply because they chose to marry individuals of the same sex.

Because it struck down the law under only rational basis review, the court failed to examine whether same-sex marriage should be considered a fundamental right, just as is heterosexual marriage, or whether laws against same-sex marriage are indeed discriminatory based upon gender, thus triggering a higher level of scrutiny.

Though the court missed an opportunity to further clarify the law here, it nonetheless ruled that given the reason stated by the Department of Public Health, a law that serves to ban same-sex marriage cannot even survive a rational basis analysis.

Of course, the success in these two cases begs the question, why hasn’t this analysis been more successful in other forums? Indeed, many courts have heard this very argument, but still found that equal application of a prohibition on same-sex marriage to both women and men makes the effect of the discrimination minimal it exists at all. I contend that it is the failure of petitioners to adequately argue the underlying gender stereotypes that require marriage to continue to be defined as an institution between one man and one woman.

In Hernandez v Robles, a Federal Circuit Court distinguished same-sex marriage from interracial marriage and thus found Loving to be inapplicable because there was no evidence presented indicating that banning it subordinated either sex as a class. While this assertion is an error, given the link between sex discrimination and discrimination against gay men and lesbians, the dicta seems to indicate that had such evidence been presented, a different outcome may have been reached. If the petitioner were to argue that the illegality of same-sex marriage serves the underlying purpose of continuing the subordination of women, the Court would be much more likely to strike down laws restricting marriage to opposite-sex couples.

Indeed, this kind of analysis would not be totally new to the court. Discrimination based on sex-stereotypes was declared illegal in Price Waterhouse v. Hopkins. This was an employment law case, rather than a constitutional equal protection case, but the analysis is still applicable. In that case a woman was denied a promotion because her peers saw her as acting “too masculine.” The Supreme Court ruled again that arbitrary notion of how the genders should act are a form of gender discrimination, and mustn’t be allowed in the work place.

It seems likely that if the Court will rule that an employer may not discrimination based on sex-stereotypes, it would also decide that access to a fundamental right may not be limited based on those same stereotypes.

It is important, as we fight discriminatory laws like Prop 8, and its many variations across the nation, in courtrooms throughout the country, that we remember the lessons we’ve learned from both our successes and our failures. Loving v. Virginia didn’t successfully strike down anti-miscegenation laws just because they didn’t seem fair. It worked because they were based on racism.

When we tell a judge why same-sex marriage bans must be struck down, we have to do better than just to say that it's just not fair. We have to be able to prove that the laws are based on a long-standing tradition of discrimination against people because of their gender.

We have to show that under the laws we already have, and the constitution we have been holding dear for over 200 years, we already have the right to marry whomever we please regardless of gender. That right just hasn’t yet been protected.