Last week, the Supreme Court declined to hear a collection of marriage-equality decisions and deferred for another term what seems now an inevitable ruling for marriage equality. The very next day, the Ninth Circuit handed down an opinion, Latta v. Otter, striking down a number of same-sex-marriage bans.
In doing so, the appeals court provided the first of what will surely be many such decisions from which the Court can choose when the justices consider what cases they might hear in the future—and so offers potential rationales by which they might make marriage equality the law of the land. The Ninth Circuit’s majority opinion rejects same-sex-marriage bans because they violate the Equal Protection Clause by discriminating based on sexual orientation, which is a standard reason courts have struck down these bans.
But there is a twist: According to one judge, this is about sexism, too. In her concurrence, Judge Marsha Berzon argues that same-sex-marriage bans also constitute sex discrimination and therefore violate Equal Protection on additional grounds.
In some respects, Berzon’s concurrence was nothing new. Since the beginning of the fight for marriage equality, advocates have argued that a failure to allow same-sex couples to wed amounts to sex discrimination. This argument has, with a couple of notable exceptions, failed in courts. The Hawaii Supreme Court used this logic in 1994 when it issued the first decision in the U.S. for marriage equality (later nullified by a state constitutional amendment), and the argument has only succeeded in a Utah federal district court since then.