Such arguments have been raised in lower courts before. Roberts put it this way:
I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based on their different sex. Why isn't that a straightforward question of sexual discrimination?Here at AKSARBENT we call refutations of such reasoning the Anatole France dodge — that there is no discrimination against gays in marriage because they are free to marry the opposite sex, just as heteros are, or put another way, that neither gender suffers discrimination in same sex marriage bans because both are equally burdened from a prohibition on marrying members of their own gender.
La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain. [In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.]Of course, citing French literature, no matter how brilliantly sarcastic, will get you nowhere in a U.S. Court of Law, so we wondered how a lawyer would argue against the sex discrimination response by the anti-gay marriage crowd.
—Le Lys Rouge [The Red Lily] (1894), ch. 7
The Times article provided the answer:
John J. Bursch, a lawyer defending same-sex marriage bans, had two responses in court to the chief justice’s question. First, he said, it is sex discrimination only if the two sexes are treated differently, but the bans place equivalent burdens on men and women.Ilya Somin, a law professor at George Mason University, wrote on The Volokh Conspiracy, a blog about law, that the problem with this argument “is that, by the same reasoning, laws banning interracial marriage don’t discriminate on the basis of race.”Indeed, courts for years justified bans on interracial marriage on such a “separate but equal” rationale.