This week, the Supreme Court will hear oral arguments in Obergefell v. Hodges, which presents the question of whether state laws that deny same-sex couples the freedom to marry violate the United States Constitution. It seems almost certain that at least five justices will say that they do.
If Obergefell follows Justice Kennedy’s pattern from previous cases, it will probably hold that marriage bans do not rationally further a legitimate state interest, that the real purpose of such laws is to denigrate and stigmatize a despised class of citizens, and that, like the laws invalidated in Romer, Lawrence, and Windsor, these laws therefore violate the Equal Protection Clause of the Fourteenth Amendment.
This will make history if it happens—but it does not go far enough. There is a better approach.
As many have already observed, Justice Kennedy’s approach to gay rights cases has been surprising. The “rational basis” standard which he has used—i.e., that these laws have no defensible, rational basis whatsoever—is normally a highly deferential one. Opponents of same-sex marriage argue that there are, in fact, legitimate justifications for laws that limit marriage to one man and one women, including morality, tradition, promoting procreation, promoting family stability, and preserving respect for the institution of marriage.
Moreover, they argue, even if the Court was right to find evidence of “animus” in Romer and Windsor because of the unprecedented nature of the laws at issue in those cases, no similar inference can logically be drawn with respect to the traditional understanding that marriage involves a relationship between a man and a woman. After all, they argue, when marriage was defined in this way many centuries ago, no one was thinking about homosexuals one way or the other.
Whatever one makes of these arguments, they make at least a plausible, if ultimately unpersuasive, case for the conclusion that laws limiting marriage to one man and one woman satisfy the “rational basis” standard.
A better way to think of these cases would be to invoke “heightened scrutiny,” a less deferential standard. Under heightened scrutiny, the law is unconstitutional unless it substantially furthers an important government interest. A mere rational explanation is not sufficient.
Such a standard has been used in cases involving a “fundamental” interest, such as the right to vote, the right not to be sterilized, or the freedom to use contraceptives. Arguably, the freedom to marry is a similarly fundamental interest—but opponents argue that for an interest to be recognized as “fundamental” it must be deeply rooted in “our Nation’s history, legal traditions, and practices,” which is not the case of same-sex marriage. This, too, is a plausible, if ultimately not convincing, argument.
But heightened scrutiny also applies when laws discriminate on the basis of “suspect classifications” such as race, national origin, gender, and similar characteristics. Because laws discriminating against African-Americans are the paradigm violation of the Equal Protection Clause, the Court generally considers four factors in determining whether discrimination against any particular group should be deemed “suspect”: whether the group has experienced a history of invidious discrimination; whether the defining characteristic of the group is essentially immutable; whether the group can effectively protect itself against discrimination through the political process; and whether the discrimination is based on stereotyped characteristics that are not truly indicative of the group’s ability to perform in society.
Those who contest the constitutionality of laws discriminating against gays and lesbians maintain that such discrimination satisfies these criteria and therefore must be tested by heightened scrutiny. Defenders of such laws maintain that homosexuality is a choice, and therefore that what LGBT advocates call a history of discrimination is no different than a history of “discrimination” against any other group of individuals who choose to violate society’s moral norms and legal strictures. They add that gays and lesbians have ample political power, and that homosexuality is relevant to a host of legal considerations, most obviously to marriage. Anti-gay laws, they insist, are completely different constitutionally from laws that discriminate against African-Americans, women, Hispanics, or Japanese-Americans.
These objections, however, may all be answered. Gays and lesbians have been subjected to a long history of invidious discrimination, sexual orientation is not a matter of choice, gays and lesbians have consistently had their interests dismissed and overridden in the political process, and sexual orientation has nothing to do with an individual’s ability to perform in society.
Put simply, and especially in light of our history, laws that expressly discriminate against gays and lesbians, whether in marriage, child custody disputes, employment, housing, or any other context are properly understood as suspect in the sense that they are highly likely to be tainted by considerations of animus, hostility, ignorance, and prejudice. This, to me, is the deepest and truest reason for invalidating laws that discriminate against gays and lesbians.
Moreover, unlike the rational basis and marriage approaches, the suspect classification argument renders all government discrimination against gays and lesbians presumptively unconstitutional—as it should be. This argument cuts to the very heart of the issue and no longer skirts around the edges of the problem.
We are now on the cusp of a profound change in the moral tone of our society. Twenty-five years ago, no one would have imagined that the Supreme Court of the United States would hold that homosexuals have a constitutional right to marry one another. I am proud of the role that lawyers, law professors, and judges have played in helping this progress along so far.
Indeed, it is important to understand the central role courts have played in this progress. As of now, same-sex marriage is legal in thirty-seven states. But only eleven of those states have voluntarily chosen to legalize same-sex marriage by legislation. But for the role of courts, thirty-nine states would still forbid same-sex couples to marry.
Moreover, because almost all of those states have adopted state constitutional amendments forbidding same-sex marriage, even a majority of the citizens of those states could not legalize same-sex marriage through legislation if they wished to do so.
In such circumstances, the role of courts in interpreting and applying the Constitution is essential. The Supreme Court should not dance around the issue of anti-gay discrimination, but should forthrightly declare it to be invidious in all contexts, not just that of marriage. It is my hope that the Court will embrace this argument and thereby put government-sponsored discrimination against gays and lesbians to rest, once and for all.