Is the limitation of marriage to one man and one woman “sexual orientation” discrimination?
The first step in the argument is to show that limiting marriage to one man and one woman is a form of sexual-orientation discrimination. Some opponents have argued that this is not sexual-orientation discrimination because such laws do not forbid “homosexuals” from marrying. Homosexuals can marry persons of the opposite sex. At most, they say, prohibiting same-sex marriages has a disparate impact on gays and thus does not constitute objectionable discrimination unless the purpose of the law is to discriminate against gays. But this argument elevates form over substance, understating the special way in which foreclosing marriage to another person based on the sex of that other person (whether same- or opposite-sex) strikes at an individual’s sexual orientation. It’s akin to saying that a ban on the wearing of yarmulkes isn’t anti-Jewish discrimination because Jews and non-Jews alike are forbidden to wear them. The argument probably has some traction among a few gay-rights opponents who
