Somin Op-ed in USA Today
Professor Ilya Somin co-authored an opinion piece in USA Today on whether laws banning same-sex marriage are constitutional.
Laws banning gay marriage are unconstitutional because they discriminate on the basis of gender. If same-sex marriage is forbidden, Anne is allowed to marry Bob, but Charles can't. Charles is denied the right to marry Bob, solely because Charles is a man. Denial of a legal right solely because of gender is the very essence of sex discrimination.
Laws banning gay marriage discriminate on the basis of gender even more clearly than on the basis of sexual orientation. Anne is still allowed to marry Charles, even if one of them happens to be gay or lesbian. Bob is denied that right whether he is gay or not. The Supreme Court has long held that laws discriminating based on gender must be presumed unconstitutional and invalidated unless the government can prove that they can pass rigorous, heightened judicial scrutiny.
Gender, the gay marriage fight’s missing piece: Column, USA Today, April 20, 2015. By Andrew Koppelman & Ilya Somin.