This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex- discrimination argument’s evanescence in contemporary marriage litigation, this Essay draws lessons about how and why arguments become risky in social-justice cases and whether they should be made nonetheless. The marriage context is particularly fruitful because some judges, advocates, and scholars find it “obviously correct” that laws excluding same-sex couples from marriage discriminate facially based on sex or impose sex stereotypes. Yet advocates have tended to minimize these arguments and most judges either sidestep or go out of their way to reject them.
Certain kinds of arguments, including the sex-discrimination argument in marriage cases, turn out to pose greater risks than others because they ask decisionmakers to confront long-settled social hierarchies and norms, such as those associated with gender roles. As a result, they risk inciting Burkean anxieties about the dangers of nonincremental change. Arguments that ask less of decisionmakers, such as those about animus associated with a particular enactment—or that have a more limited reach, such as heightened scrutiny for sexual orientation at a time when few explicitly antigay laws remain—are less likely to provoke that discomfort. Moreover, a win on these narrower arguments can also erode stereotypes and norms underlying a challenged law or social policy. In marriage cases, for example, a pro-equality ruling helps call longstanding marital gender roles into question even if the court’s decision never mentions sex discrimination. Still, risky arguments add value within litigation by powerfully calling attention to deep problems that underlie a challenged law. Through close study of these costs and benefits, the risky-argument frame advanced here aims to illuminate the complex dynamics of argumentation in the litigation and adjudication of social-justice cases.