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Image: Bo Mertz

Love All: Same-Sex Mixed Doubles in Tennis

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In a surprise decision that is sure to rock the tennis world, the Supreme Court of the United States has ruled that same-sex couples have a constitutional right to compete in mixed doubles tennis competitions, reversing a lower court decision.  The ruling passed yesterday with Kennedy, Ginsburg, Breyer, Sotomayor and Kagan issuing the majority opinion.  The ruling takes effect immediately, everywhere tennis is played in the US.  Same-sex couples are lining up to enlist in mixed doubles competitions while some traditional clubs are vowing to drop mixed doubles competition from their schedules.

 The text of the Court’s decision follows:

 Historically, mixed doubles tennis has been understood as a competition between two teams consisting of one man and one woman.  To the respondents, it would destroy a timeless institution if mixed doubles were extended to same-sex couples.  But the petitioners, far from seeking to devalue mixed doubles, seek it themselves because of their respect—and need—for its privileges and responsibilities.  Their desire to form same-sex teams, which is immutable, dictates that same-sex mixed doubles is their only real path to this profound commitment.

 The history of mixed doubles competitions is one of both continuity and change.  Changes, such as the height of the net and of athletic attire, have worked deep transformations in the structure of the game, affecting aspects once viewed as essential.  These new insights have strengthened, not weakened, the institution.  Changed understandings of mixed doubles are characteristic of a Nation where new dimensions of freedom become apparent to new generations.

 This dynamic can be seen in the Nation’s experience with same-sex teams.  Well into the 20th century, States saw same-sex couples as somehow unequal to opposite-sex couples.  The USTA classified same-sex mixed doubles teams as doubles teams.  But, late in the century, public attitudes have evolved beyond traditional biases.

 The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs (see, eg., Eisenstadt v. Baird; Griswold v. Connecticut).  Courts must exercise reasoned judgement in creating rights so fundamental that the State must accord them its respect.  History and tradition guide and discipline the inquiry but must not sway our decisions.

Applying these tenets, the Court has long held that the right to mixed doubles is protected by the Constitution.  For example, Loving v. Virginia invalidated bans on interracial teams and Turner v. Safley held that prisoners could not be denied the right to mixed doubles competition.  To be sure, these cases presumed the word ‘mixed’ meant ‘opposite-sex’ so they are hardly relevant to the present case, nevertheless we believe if we look at the basic reasons why the right to mixed doubles has long been protected, we are compelled to reach the conclusion that same-sex couples may exercise the right to play mixed doubles.

 Four principles and traditions demonstrate that the reasons mixed doubles is fundamental under the Constitution apply with equal force to same-sex mixed doubles partnerships.  First, the right to personal choice regarding mixed doubles is inherent in the concept of individual autonomy as implied by the Fourteenth Amendment.  The word ‘liberty’ in the Due Process Clause (which states that no person may be deprived of “life, liberty, or property” without due process of law) implies a fundamental right to play mixed doubles since, literally interpreted, it means a person cannot be curtailed from doing whatever they want.  Loving invalidated interracial mixed doubles team bans under the Due Process Clause observing that it would be contradictory “to recognize a right to mixed doubles and not with respect to the decision to enter a relationship that is the foundation of a mixed doubles team.” 

As the Supreme Judicial Court of Massachusetts has explained, “the decision whether and with whom to partner is among a player’s momentous acts of self-definition.”  There is dignity in the bond between two men or two women who seek to play mixed doubles, and in their autonomy to make such profound choices, so we shouldn’t stand in their way.  While it is noted that the word ‘liberty’ in the Due Process Clause was intended to refer to “freedom from physical restraint”, the practice of the Court has been to interpret the text whichever way gets us to where we need to go (see, eg. Obergefell v. Hodges).

 Further, the right of same-sex couples to mixed doubles competition is also derived from the Fourteen Amendment’s guarantee of equal protection.  The Due Process Clause and the Equal Protection Clause are connected in profound ways.  Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, or even extant, but exist as penumbras of psychedelic alternative realities.

 A second principle in this Court’s jurisprudence is that the right to mixed doubles is fundamental because it supports a two-person union unlike any other in its importance to the committed team member.  The right to mixed doubles thus dignifies couples who “wish to define themselves by their commitment to mixed doubles play” (Windsor).  Mixed doubles responds to the universal fear that a player might call out ‘your serve’ only to find no one there.  The intimate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of mixed doubles to wear matching sweatbands.  Same-sex couples have the same right as opposite-sex couples to enjoy mixed doubles, a right extended beyond mere freedom from linguistic coherency making same-sex mixed doubles an oxymoron.

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