The Question Is How, Not Whether, the Supreme Court Will Find a Right to Same-Sex Marriage

Last fall, the Supreme Court denied applications for review from multiple states in which federal appeals courts had found a constitutional right to same-sex marriage. The high Court’s inaction had the foreseeable consequence of permitting thousands of same-sex marriages to go forward. Consequently, informed observers assumed that a majority of Justices must be prepared to recognize a constitutional right to same-sex marriage. After all, if there were any substantial chance that the Court might ultimately reject such a right, then permitting the marriages to go forward in the interim would invite chaos in the event that the Court ultimately authorized states to invalidate the unions. And because no one thought the Justices would deliberately invite chaos, the operative question became not whether the Court would recognize a right to same-sex marriage, but when it would do so.

Earlier this month, the Supreme Court strongly foreshadowed an answer to that question. By granting review of several consolidated cases from the U.S. Court of Appeals for the Sixth Circuit, the Court indicated that it would legalize same-sex marriage nationwide before it adjourns in early summer. There remains a very remote possibility that the Justices could reject the plaintiffs’ claims and unleash chaos, but for practical purposes, the Court has now answered the question when.

However, there remains substantial uncertainty about how the Court will find a right to same-sex marriage. In this column, I explore the leading possibilities and explain why the choice among them matters.

What the Rephrased Questions Mean

Ordinarily, when the Supreme Court grants a petition for review, it accepts the petitioner’s framing of the issue. In its recent order, however, the Court directed the parties to address two questions of its own devising: (1) whether the Fourteenth Amendment obligates states to issue marriage licenses to same-sex couples; and (2) whether the Fourteenth Amendment obligates states to recognize same-sex marriages performed out of state.

Various commentators speculated about whether the reframed questions signaled a possible outcome. Was the Court hinting at a compromise in which states would be obligated to recognize out-of-state same-sex marriages but not to license their own? By focusing on what the Fourteenth Amendment requires, was the Court suggesting that states could, or could not, avoid recognizing same-sex marriages by changing their laws so as not to recognize any marriages, same- or opposite-sex?

Such speculation reads far too much into the order. The Court was faced with four separate petitions, each of which phrased the questions presented somewhat differently, and each of which involved its own particular laws and facts. Had the Justices simply granted each of the petitions, they would have been overwhelmed by questions presented. Had they chosen the questions presented by one particular petition, they would have potentially resolved that case without resolving all of the others. By reframing the questions, the Court ensured an orderly means of addressing all of the relevant issues.

Equal Protection and/or Due Process

What are those issues? The Fourteenth Amendment includes two relevant provisions: its Equal Protection Clause and its Due Process Clause.

The 1967 ruling in Loving v. Virginia usefully illustrates the Court’s options. Chief Justice Earl Warren’s opinion offered two independently sufficient grounds for invalidating Virginia’s prohibition on interracial marriages. First, he explained that in restricting whom a person may marry based on race, the state denied equal protection. Second, he said that the Virginia law also restricted the “fundamental freedom” to marry without adequate justification, “in violation of the Due Process Clause of the Fourteenth Amendment.”

Likewise in the cases now before the Court, the Justices could rule that state laws that fail to license or to recognize same-sex marriages deny equal protection and/or violate the fundamental right to marry protected by the Due Process Clause.

To say that the same-sex marriage cases present the Court with questions under the Equal Protection and Due Process Clauses is not to say that the Court will simply make an all-things-considered judgment that the challenged laws violate one, the other, or both of those Clauses. Prior cases offer a number of different pathways to the conclusion that there is a constitutional right to same-sex marriage.

Due Process

The due process approach provides the simplest option. Past precedents recognize that marriage is a fundamental right; laws restricting whom one may marry based on opposite versus same sex of the spouse substantially infringe that right; and the states have offered no good reason that would justify the infringement.

The best justification that lawyers have been able to offer in support of such restrictions is that state recognition of marriage aims to ensure that heterosexuals who accidentally procreate provide a stable two-parent home for the resulting children. That argument has been appropriately ridiculed from many quarters, perhaps most effectively by federal Appeals Court Judge Richard Posner, who, in his opinion last September striking down the Indiana and Wisconsin same-sex marriage bans, wrote: “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

Despite the downright irrationality of the justification offered for same-sex marriage bans, there is still a fair chance that the Supreme Court will either reject or fail to reach the due process argument. The cases that recognize marriage as a fundamental right rely on “substantive due process,” a doctrine that grants substantive protection to particularly important rights under a clause that, on its face, appears to be concerned with procedures.

Although a majority of Justices—including the five Justices most likely to rule in favor of a right to same-sex marriage—accept the doctrine of substantive due process, the Court’s cases applying the doctrine counsel caution in recognizing or expanding rights recognized under it.

Accordingly, the lawyers defending the state same-sex marriage bans have some hope of persuading a majority of Justices that while marriage is a fundamental right, its scope is not so broad as to include same-sex marriage. The lawyers would need to seize on language in prior cases purporting to limit fundamental rights to those that are “deeply rooted in the nation’s history and tradition.”

Even then, they would face an uphill battle. As Loving illustrates, a right can be deeply rooted, even if there is no long history or tradition of recognizing the right on behalf of people in precisely the same circumstances as the particular plaintiff. There was no longstanding history or tradition of recognition for interracial marriage, but the general tradition of state recognition of marriage sufficed in Loving. Likewise here, the Court could (and in my view should) hold that the general tradition suffices to establish same-sex marriage as encompassed within the fundamental right to marry.

Would it matter if the Court were to reject or skip over the due process argument in favor of a pure equal protection holding? In theory, yes. If the Court grounds the right to same-sex marriage only in equal protection, then states might try to deny legal recognition to all marriages—including those of opposite-sex couples. But that path seems foreclosed by Loving itself, because marriage is a fundamental right at least for opposite-sex couples, and so states could not constitutionally get out of the marriage business entirely. Moreover, there is no realistic possibility that any state would eliminate legal recognition of marriage. Accordingly, there is no real practical significance to whether the Court finds a right to same-sex marriage based on equal protection alone or, as in Loving, also relies on due process.

Equal Protection

Conventional constitutional doctrine provides that courts will uphold most laws challenged as denying equal protection, unless the lines they draw are completely irrational. However, laws that use illicit, so-called “suspect” classifications such as race or ethnicity are subject to “strict scrutiny.” When directed at a law that disadvantages subordinated groups (such as African Americans) strict scrutiny is nearly impossible to satisfy. Since the 1970s, the Supreme Court has treated sex as a “semi-suspect” classification, subjecting sex-based laws to “intermediate scrutiny.” When directed at laws based on traditional sex-role stereotypes, intermediate scrutiny is also very difficult to satisfy.

Application of the conventional doctrine ought to be sufficient to invalidate same-sex marriage bans. Although gay men and lesbians face less discrimination than in the past, they remain a traditionally disadvantaged minority. There is thus a good argument for treating sexual orientation as a suspect or semi-suspect classification.

In addition, it has been argued that sexual orientation discrimination is sex discrimination. Loving treated a law that discriminated on the basis of the race of one’s chosen spouse as race discrimination; thus, by analogy, laws that forbid whom one may marry based on his or her sex discriminate based on sex.

If the Court applies either strict or intermediate scrutiny to laws denying recognition to same-sex marriage, it will surely invalidate those laws. As we have seen, the “accidental procreation” justification for those laws is a non sequitur.

Nonetheless, there are reasons to think that the Court will not apply heightened scrutiny because its approach to suspect and semi-suspect classifications appears to be frozen in the 1970s. Since that time, national, state, and local legislation has recognized a variety of new forms of invidious discrimination. Yet the Justices have refused to expand the constitutional list. Prior cases reject heightened scrutiny for laws discriminating on the basis of age and disability; despite the sound arguments to the contrary, if forced to confront the issue squarely, the Justices might well reject heightened scrutiny for sexual orientation discrimination too.

Nonetheless, as three leading Supreme Court cases illustrate, even without officially applying heightened scrutiny, the Justices can rule in favor of gay rights. In Romer v. Evans, in 1996, the Court invalidated a Colorado referendum that rendered gay men and lesbians ineligible for protection against sexual orientation discrimination on the ground that the referendum was rooted in animus, what the Court, quoting earlier cases, called “a bare desire to harm a politically unpopular group.” The 2013 ruling in United States v. Windsor, which invalidated a key provision of the federal Defense of Marriage Act, relied on the same principle. And in between, in the 2003 decision in Lawrence v. Texas, the Court sustained a challenge to a Texas law forbidding same-sex sodomy—suggesting but never actually saying that the law infringed a fundamental right to sexual autonomy.

It would be child’s play for the Court to find a constitutional right to same-sex marriage without officially applying heightened scrutiny under either the Due Process Clause or the Equal Protection Clause. Indeed, citing the precedents just described, that is precisely what most lower courts have done in the year and a half since Windsor.

Why It Matters

Nonetheless, it would be better—for everyone—if the Court were to find a constitutional right to same-sex marriage the old-fashioned way: by holding that the laws at issue trigger heightened scrutiny because they discriminate on an illicit ground (sexual orientation) and with respect to a fundamental right (marriage), without good reason.

That approach would be better for gay rights advocates because it would establish a valuable precedent for challenging other forms of discrimination. Federal civil rights statutes still do not include a provision forbidding discrimination based on sexual orientation (or gender identity). A holding by the Supreme Court that laws discriminating on such grounds are presumptively unconstitutional would protect public school teachers, public employees, and many others from invidious discrimination. To be sure, such a ruling would not render private discrimination unlawful, but it would place the Court’s moral authority behind efforts to expand statutory protection against sexual orientation discrimination—much in the way that the Supreme Court’s constitutional rulings on race discrimination in the 1950s paved the way for congressional action attacking private race discrimination in the 1960s.

A ruling based on heightened scrutiny for sexual orientation would also be in the interests of same-sex marriage opponents. The Court’s cases make clear that animus is a term of art that does not mean hatred. Nonetheless, it is easy to slip from the term’s technical meaning to its vernacular meaning. In describing laws forbidding same-sex marriage as rooted in animus, the Court invites same-sex marriage opponents to become defensive, to insist that they do not hate gay men and lesbians.

The animus line of cases thus thrusts the nation into a distracting conversation about the motives and sentiments of the people who support same-sex marriage bans. We would all be better off with a ruling that recognizes that laws discriminating based on sexual orientation demand a very good justification—and that whatever anybody’s motives, no one has come up with one.

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