Lessons from Oral Argument in Bishop v. Smith


Last Thursday, a three-judge panel of the Tenth Circuit Court of Appeals heard oral argument in Bishop v. Smith, the case involving a challenge to Oklahoma’s same-sex marriage ban.  The same panel of judges heard argument in the Utah marriage case, Kitchen v. Herbert, the week before.  While the panel focused primarily on questions of standing in interrogating plaintiffs’ counsel, Don Holladay, the panel’s dialogue with the attorney for the State, James Campbell, revealed much about how the panel is thinking about the merits of the same-sex marriage issue, regardless of whether it articulates its reasoning in Bishop, Kitchen, or both.

Equal application arguments and sex discrimination

Campbell began his presentation by attacking the claim that bans on same-sex marriage represent a form of sex discrimination.  (Significantly, in contrast to the Utah court, the Oklahoma court had rejected the sex discrimination argument when it was presented below.)  If such bans are considered a form of sex discrimination, then it is well-established that courts would be required to apply heightened scrutiny in reviewing the laws, which would bode well for plaintiffs.

Judge Holmes, following a similar line of questioning he had pursued in the Kitchen arguments, strongly challenged Campbell on the point, relying again on the Supreme Court’s analysis in Loving v. Virginia.  If Virginia’s anti-miscegenation laws represented race discrimination despite the fact that the laws applied to blacks and whites equally, then so must Oklahoma’s anti-same-sex-marriage laws represent sex discrimination despite the fact that the laws apply to women and men equally.

Campbell responded more ably than most on this point, first pointing out that the Supreme Court has never explicitly extended the logic of Loving to sex discrimination, and second citing precedent from the sex discrimination canon (VMI) for the proposition that sex discrimination–unlike race discrimination–actually does require that one sex be subordinated to another for elevated equal protection scrutiny to apply.

In my view, the structural analysis of discrimination in Loving cannot be restricted in its application simply because Loving involves race discrimination.  This is a distinction without a difference.

But even more importantly, bans on same-sex marriage are not only sex discrimination in a formal sense (i.e., they rely on facial sex classifications), but also on a substantive level.  This is because the State of Oklahoma, along with the State of Utah and a number of other jurisdictions, defends their marriage law based on the claim that it benefits children to have both a mother and a father (i.e., a male parent and a female parent), due to their differentiated parenting roles.

This is naked sex-role stereotyping–to suggest that one’s parenting style and role is necessarily determined by one’s sex, and that you could not have complementary parenting styles in couples of the same sex.  Whether based on the use of facial sex classifications or the reliance on sex-role stereotypes, bans on same-sex marriage are a form of sex discrimination meriting heightened scrutiny.

The State’s claim that rational basis review applies because sex is relevant to marriage

Next, invoking City of Cleburne v. Cleburne Living Center, Campbell argued that it was appropriate for state legislatures to consider sex in the context of regulating marriage.  In light of the claim that marriage bans are not sex discrimination, this argument advanced by the States is puzzling indeed.

It is a clever argument, up to a point.  In Cleburne, the Court denied suspect classification status to individuals with cognitive disabilities, reasoning that a classification could not be suspect where the trait defining the classification was actually relevant to one’s ability to function in society, and thus relevant to the types of interests that the legislature regularly addressed.  Cognitive disabilities were just such a trait, and so laws relying on this characteristic would be subject only to deferential rational basis review.

Similarly, according to Campbell, sex is relevant to the institution of marriage, and so marriage regulations based on sex should also be subject only to rational basis review.

What Campbell seemed to fail to appreciate is that this argument confesses that same-sex marriage laws are regulating sex, and sex classifications are categorically subjected to intermediate scrutiny, regardless of the subject matter of the legislation.

Do bans on same-sex marriage implicate the established fundamental right of marriage?

There is nothing new under the sun.  The question of whether plaintiffs in these lawsuits are asserting the established fundamental right to marriage, or are claiming a new, unprecedented fundamental right to same-sex marriage, is well-worn territory.  Campbell put a somewhat finer point on the issue by referring to the need for courts to “carefully describe” the nature of the right at issue–which is a red herring and, worse, a vehicle for excluding historically marginalized groups from access to fundamental rights, as I have explained previously here.  As soon as you ask whether there is a fundamental right to interracial marriage (as opposed to a general right to marriage for all people), or you ask whether there is a fundamental right for homosexuals to engage in sodomy (as opposed to a general right to privacy in intimate relations for all people), you have already provided the answer.  When the very nature of a right is characterized with reference to the historically excluded group, it will be impossible to conclude that the asserted right is “deeply rooted in this Nation’s history and tradition.”

There is much to be said about this issue, but Judge Walker, writing the district court opinion in Perry v. Schwarzenegger (the initial caption for the challenge to California’s Proposition 8), probably provided the most coherent and persuasive analysis of why the attributes we value in marriage are equally available to same-sex and opposite-sex couples.  In other words, marriage is fundamental not because of its heterosexual nature, but because it allows two individuals to form a stable family unit for purposes of mutual support and, oftentimes, raising children.  It is undisputed that both of these are interests held by same-sex couples.

Does the reasoning of Windsor apply to the state-law marriage laws?

In a different line of argument, Campbell insisted that the reasoning of Windsor is limited to the context of federal efforts to regulate the institution of marriage and inapplicable to state-law challenges.  I address this contention in some detail in my earlier post about the oral arguments in Kitchen.  In short, I don’t believe this basis for distinguishing Windsor holds water because the federalism analysis in that case was encompassed within a larger equal protection analysis that is entirely applicable to the states.

Judge Lucero and concern for the children of same-sex couples

Judge Lucero demonstrated his continuing concern about the harms inflicted on the children of same-sex couple by restrictive marriage laws, questioning Campbell about the legal status of these children in the State of Oklahoma and what, if anything, justified treating these children differently.  Supreme Court precedent clearly states that laws cannot punish children based on moral disapproval of their parents, or in an effort to control the conduct of their parents.  It seems to me impossible to escape the charge that state law bans on same-sex marriage do exactly this.

A new level of scrutiny: “Careful Consideration”?

It seems that there is a new level of scrutiny being recognized in these cases, or at least there is a new name being attached to what Justice Kennedy did in Windsor.  While the nature and scope of “careful consideration” scrutiny were not explored extensively at oral argument, Campbell seemed to concede that this was the standard applied in Windsor, but denied that “careful consideration” or any form of heightened scrutiny should be applied to the state-law challenges.

Holladay and plaintiffs, for their part, also referred to Windsor’s “careful consideration” in their brief, and, unsurprisingly, argued that it was the proper form of scrutiny for all marriage bans.


Given the multiple lines of reasoning available to the panel in resolving Kitchen and Bishop, it is difficult to predict the precise contours of the forthcoming opinion in the cases.  I am guessing that Judge Lucero will draft an opinion focusing on the rights of children while Judge Holmes will offer an analysis based on the claim of sex discrimination.  Then the question will be whether the third judge, Judge Kelly, is persuaded by either approach.

And then, of course, the smart money is on a rehearing en banc.



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