Sexual orientation discrimination as sex discrimination

[Andrew Koppelman]

The argument for thus interpreting antidiscrimination law is developed very 
well in Samuel A. Marcosson, Harassment on the Basis of Sexual 
Orientation:  A Claim of Sex Discrimination Under Title VII, 81 Geo. L.J. 1 
(1992).  But it has long since been rejected, uniformly, by the federal 
courts.  See, e.g., DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th 
Cir. 1979).  When a statutory interpretation has been in place for a long 
time, Congressional passivity in response to that interpretation is often 
taken by the courts to connote approval.  That might be a basis for 
distinguishing Title VII from the constitutional case.  Compare the very 
different treatment of affirmative action under Title VII and under the 
Fourteenth Amendment, even though the language of Title VII is much more 
hostile to racial classifications than the language of the amendment.



At 03:01 PM 7/13/2005, Volokh, Eugene wrote:
>         Has there been much talk, either in court decisions or in the
>literature, about whether accepting (A) the "sexual orientation
>discrimination = sex discrimination" argument under the Equal Protection
>Clause for same-sex marriage would lead courts to (B) reinterpret sex
>discrimination statutes as barring sexual orientation discrimination in
>employment, housing, public accommodations, and the like?
>
>         I would think that quite a few people who are open to government
>recognition of same-sex marriage would be quite hesitant to create more
>restriction on private employers:  For instance, the former would make
>lots of sense to libertarians, but the latter would not.  Moreover, some
>people who only mildly oppose same-sex marriage (for instance, because
>they recognize that the matter is largely symbolic, and that it makes
>little real difference to them whether same-sex couples are allowed to
>marry) might much more strongly oppose a new set of antidiscrimination
>laws, which would indeed restrict others' freedom of action.  And while
>there's no logical requirement that A would lead to B, it sure would be
>a decent formalist argument, that might persuade some swing judges (even
>if it won't persuade all of them).
>
>         Yet I hadn't seen much discussion of this.  Have I just missed
>it?  Or is there some obvious reason why A really would be quite
>unlikely to lead to B?  Thanks,
>
>         Eugene
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________________________________________

Andrew Koppelman
Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
mailto:akoppelman at northwestern.edu
________________________________________