Category: Society

Preparing for Challenges to Marriage Equality If the Supreme Court Overrules Roe v. Wade

I have been exploring the legal aspects of the Supreme Court’s expected decision in Dobbs v. Jackson Women’s Health Organization to overrule “Roe-v-Wade” and Planned Parenthood v. Casey.  And with substantial input from my friend Jack Nadler and some of your comments, we have explored the potential implications for the Court’s marriage equality decision, Obergefell v. Hodges. “Roe-v-Wade-Part II.”  At this point, no one knows what the Court will actually do.  However, marriage equality advocates have good reason to be concerned that the Court’s expected decision in Dobbs will invite challenges to its earlier decision in Obergefell that States must allow same-sex couples to marry.  

As Jack and I explained in our previous blog, the Supreme Court grounded both the right of same-sex couples to marry recognized in Obergefell, and a woman’s right to an abortion recognized in Roe (and reaffirmed in Casey), primarily on the Due Process Clause –  the part of the 14^th Amendment to the U.S. Constitution that provides that no State may “deprive any person of life, liberty, or property, without due process of law.”  On its face, the Clause appears to address only the procedures that a State must use before taking a person’s “life, liberty, or property,” such as providing adequate notice and holding a hearing.  However, over the years, the Court has repeatedly held that the Due Process Clause’s protection of “liberty” precludes a State from infringing on certain substantive rights that are not mentioned in the text of Constitution, but which the Justices believe are fundamental to an individual’s personal liberty.  This method of interpreting the Due Process Clause is often referred to as “substantive Due Process.”  Applying the doctrine of substantive Due Process, the Justices have identified a large number of “fundamental rights,” including the right to privacy, the right to use contraception, the right to custody over one’s children, the right to travel, and, of course, the right to marriage and the right to terminate a pregnancy.

Justice Alito’s draft opinion in Dobbs repudiated the doctrine of substantive Due Process.  The Justice argued that because “the term ‘liberty’ alone provides little guidance,” the Court had tended to “confuse what [the 14^th] Amendment protects with [its] own ardent views about the liberty that Americans should enjoy” and engaged in “freewheeling judicial policymaking” guided only by “the policy preferences of the Members of this Court.” In the process, he added, the Court had “usurped the authority that the Constitution entrusts to the people’s elected representatives.”  Rather than continuing to use “such an unprincipled approach,” he concluded, the proper method by which to interpret the Due Process Clause is to limit the rights protected by that Amenment to those that are expressly granted in the Constitution or that are “deeply rooted in our nation’s history and tradition.”

Because both Roe and Obergefell were grounded on substantive Due Process, and because both cases took away the States’ authority to address a controversial issue historically within their jurisdiction, the Court’s expected rejection of substantive Due Process in Dobbs, and its emphasis on returning decision-making power to the States, is likely to invite challenges to Obergefell. 

Jack and I have joined together here to propose how marriage equality could be defended against challenges that might arise from such an overturning of Roe.  I say that we have joined together to indicate that we largely share the arguments presented below, but Jack has done all the work.  To keep things simple, for the balance of this blog we are going to describe the situation as if the Court had issued its decision in Dobbs, and had adopted the language and reasoning in the draft opinion written by Justice Alito that was leaked to the press several weeks ago.

 As discussed below, we believe that, even if the Court adopts the reasoning in Justice Alito’s draft opinion and overrules Roe, marriage equality advocates can persuasively make the following arguments to support preserving the Court’s decision that same-sex couples have a constitutional right to marry:   

• Stare decisis.  The Court’s determination in Obergefell that States must allow same-sex couples to marry is binding precedent that the Court should not overrule without “special justification.”  Dobbs provides no such justification.  To the contrary, the Court expressly stated that the decision was limited to abortion and that the Court did not intend to “cast doubt” on other cases, including Obergefell, that have applied substantive Due Process.  In any case, none of the justifications that the Court relied on to overrule Roe is applicable to Obergefell.

• Equal Protection.  State laws that make distinctions on the basis of sexual orientation should be subject to the same level of heightened scrutiny as State laws that distinguish on the basis of gender, which the Court often refers to as “intermediate scrutiny.”  Under that standard, State laws that allow heterosexual couples to marry, while forbidding gay and lesbian couples from doing so, violate the Equal Protection Clause because the differential treatment is not “substantially related” to an “important” State purpose.

Some of you may have thought that the 14^th Amendment’s Equal Protection Clause must surely requires a State to treat gay and lesbian couples and heterosexual couples equally, by giving them the same right to marry.  But, as you will see, the Court’s application of the Equal Protection Clause is far more complicated than that.

There are several ways in which marriage equality opponents could challenge Obergefell.  But imagine the scenario below.

The Ballard of Adam and Steve

In late June, the Supreme Court issues its long-awaited decision in Dobbs v. Jackson Women’s Health Organization.  As expected, the Court strikes down Roe v. Wade.  The decision, written by Justice Alito and joined by four other Justices, repudiates the doctrine of substantive Due Process.  Instead, the Court rules that the Constitution only protects rights that are expressly granted in its text or that are “deeply rooted in our nation’s history and tradition.” Because the Court finds that the Constitution does not expressly grant women the right to have an abortion, and that, prior to Roe, the United States did not have a long “history and tradition” of permitting abortion, the Court overrules that decision (and its subsequent decision in Planned Parenthood v. Casey, which reaffirmed Roe).  The Court thereby “return[s] the authority to the people and their elected representatives” to decide whether to adopt laws that “regulate or prohibit abortion.” [Sidebar:  Justice Alito actually was wrong when he stated that the U.S. does not have a long history and tradition of permitting abortion, “What the leaked abortion opinion gets wrong about the founding era”, but abortion is not our subject here.]

On July 4, the socially conservative and politically ambitious Governor of the State of Texida, Serp Eden, holds a press conference.  Before a sea of reporters and cameramen, Governor Eden reads the following statement:

The Supreme Court’s decision in Dodd has finally put a stop to liberal judicial activism and has returned power to the States to regulate abortion as they think best.  The people of this State have made clear that they want to ban all abortions.  And that’s exactly what we’ve done.  

But we’re not going to stop there.  We will no longer allow unelected judges up in Washington DC to misuse the Constitution to make-up new rights and impose their elitist values on the rest of us.  Instead, “We the People” are going to take back the freedom to run our own State the way we think best. 

The reasoning that the Supreme Court used to overrule Roe applies equally to the Court’s gay marriage decision, Obergefell v. Hodges.  The U.S. Constitution doesn’t say anything about homosexuals having the right to go out and marry each other.  And it’s certainly not part of our “history and tradition.”  Maybe it is in New York or California.  But not down here in Texida.  So we get to decide whether people who choose that lifestyle can get married here in our State.

When the people of this State voted overwhelmingly to amend our State Constitution in 2014, they made clear that they believe that marriage should continue to be between one man and one woman, just like it’s always been.  However, since the Supreme Court’s decision in Obergefell, the Federal Government has been infringing on our State’s Rights by forcing us to issue marriage licenses to same-sex couples. 

Today, I’m putting a stop to that.  After I finish my statement, I’m going to sign an Executive Order that directs every marriage clerk in the State of Texida to do what the people told us to do:  issue marriage licenses only to couples that consist of one man and one woman.

We’re not prejudiced against homosexuals.  If the gays want to get married, they can hop on a plane and go to San Francisco.  We wish them well.  But the time has come for the States – including our great State – to once again exercise their sovereign right to decide for themselves how to regulate marriage, just like our Founding Fathers intended.

We know that some people are going to try to politicize this.  If we have to, we’ll take this all the way to the Supreme Court.  The Court was willing to overrule Roe, so I am sure it would be willing to overrule Obergefell. 

With cameras rolling, Governor Eden then signs the Executive Order.

Ten days later, two young men, Adam Gardner and Steven Appletree, visit their local marriage bureau.  They stand in line with all the other happy couples seeking to get married.  As each couple comes forward, the clerk issues them a marriage license.  However, when the men’s turn arrives, the clerk says: “I’m sorry.  I’d really like to help you boys.  But, under the Texida Constitution, I can only issue a marriage license to couples that have one man and one woman.”

Adam and Steve leave the marriage bureau.  The next morning, the couple do what any red-blooded American would do:  They hire a lawyer and sue Governor Eden and the State of Texida.

After reviewing the pleadings, the trial court issues a decision finding that,under Obergefell, the State must issue a marriage license to the couple but stays its decision in order to give the State a chance to appeal.  Some months later, the Court of Appeals issues a decision reversing the trial court.  In its decision, the court states that “We hold that, in light of the Supreme Court’s rejection of substantive Due Process in Dobbs, Obergefell clearly is no longer ‘good law’ and that, if presented with the question, the Court would overrule its decision requiring States to allow same-sex couples to marry.”  The Court therefore rules that the State does not have to issue a marriage license to Adam and Steve.

Disappointed but undeterred, Adam and Steve direct their lawyer to seek Supreme Court review.  The Court agrees to hear the case.  As discussed below, the couple, through their lawyer, can make two persuasive arguments – one based on stare decisis and the other based on the Equal Protection Clause –  as to why the Court should reverse the decision of the Court of Appeals and reaffirm its decision in Obergefell that the U.S. Constitution provides same-sex couples with the right to get married.  We also discuss a few strong counter-arguments that the State could make.

Obergefell is Binding Precedent; The Court’ Decision in Dobbs Does Not Provide the “Special Justification” Required to Overrule It

The first thing that Mr. Gardner and Mr. Appletree should do is to invoke the doctrine of stare decisis (literally, “stand by the decision”).  Stare decisis requires a court to act consistently with prior binding decisions, thereby ensuring that the law is stable and predictable.  In 2015, the Supreme Court ruled in Obergefell v. Hodges that same-sex couples have a constitutional right to marry.  In deciding Adam and Steve’s case, the Court should act consistently with that decision.  Specifically, the Court should rule that, under Obergefell, the State of Texida’s refusal to issue a marriage license to the couple violates their constitutional rights. 

 The State is likely to respond that stare decisis is not – and should not be – absolute.  This is clearly correct.  For example, virtually everyone agrees that the Supreme Court acted correctly when it overruled Plessy v. Ferguson, which had upheld “separate by equal” racial segregation, and required public school integration in Brown v. Board of Education.  Indeed, because of the importance of the Constitution, and the difficulty of amending it, the Court has been more willing to overrule cases that interpret the Constitution than cases that interpret statutes, regulations, or other matters.  Nonetheless, as the Court recognized in Arizona v. Rumsey (1984), even in constitutional cases, “any departure from the doctrine of stare decisis demands special justification.” In particular, as the Court plurality observed in Casey, “a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.”

In light of the above, Adam and Steve should make the following arguments as to why the Court should not overrule Obergefell: 

• The Court expressly stated in Dobbs that its decision was limited to abortion and that it did not intend to “cast doubt” on other cases, including Obergefell, that have applied substantive Due Process. 
• The justifications that the Court relied on to overrule Roe are not applicable to Obergefell and, therefore, do not provide the “special justification” required to overrule it.

The Court expressly stated in Dobbs that its decision was limited to abortion and that it did not intend to “cast doubt” on other cases, including Obergefell, that have applied substantive Due Process.  In Dobbs, the Court rejected the doctrine of substantive Due Process.  However, the Court went out of its way to try to distinguish Roe from the many prior Court decisions that have applied substantive Due Process to identify “fundamental rights” not mentioned in the Constitution.  Indeed, the Court expressly stated that “what sharply distinguishes the abortion right” from the rights identified in other substantive Due Process cases is that “abortion destroys . . . the life of an unborn human being.  None of the other decisions . . . involved the critical moral question posed by abortion.”  Therefore, the Court continued, “our conclusion that the Constitution does not confer such a right does not undermine [those cases] in any way. . . . [O]ur decision concerns the constitutional right to abortion and no other right.  Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”  The Court expressly cited Obergefell as one of those precedents.

Slam dunk.  Game over.  Right?  Unfortunately, not.  As every first-year law student eventually learns, the legally binding part of a court decision – the part that becomes precedent – is not what the court says; it is what the court actually does and the reasoning essential to support that action.  This is known as the “holding.” The rest of the court’s opinion is non-binding obiter dictum (literally, “a thing said in passing”).  The State, therefore, is likely to argue that the Court’s statement that it did not intend to undermine Obergefell and other substantive Due Process cases was not essential to support the Court’s decision regarding a woman’s right to an abortion and, therefore, is non-binding dicta. As a result, this language does not preclude the Court from revisiting, and overruling, Obergefell.  The State will likely further argue that the Court’s rejection of substantive Due Process in Dobbs, and its determination that the Due Process Clause protects only those rights expressly granted in the Constitution or that are “deeply rooted in our nation’s history and tradition,” requires the Court to now eliminate the judicially created right to marry a person of the same sex.

The justifications that the Court relied on to overrule Roe are not applicable to Obergefell and, therefore, do not provide the “special justification” required to overrule it.   Adam and Steve should next argue that, even if a majority of the Justices now believe that because of its reliance of the doctrine of substantive Due Process the Court was wrong when it found that same-sex couples have a right to marry, there is no “special justification” for overruling that decision.  Indeed, none of the factors that the Court concluded “weigh strongly in favor of overruling Roe and Casey,” applies to Obergefell.  The three most important factors were: “the nature of their error”; “the ‘workability’ of the rules they im­posed on the country”; and “the absence of concrete reliance.”  

Nature of the error.  The Court stated that Roe should be overruled because its “constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.”  By contrast, the Court’s application of substantive Due Process in Obergefell expressly relied on the Court’s 1967 decision in Loving v. Virginia, which recognized that the right to marry was a fundamental right protected by the Due Process Clause and, therefore, required States to allow people of different races to marry. 

Obergefell also was a logical extension of a line of cases, dating back to the Court’s 1996 decision in Roemer v. Colorado, that held that the Constitution barred government actions based on “animus” towards gay and lesbian people.  Indeed, in 2003, when the Court ruled in Lawrence v. Texas that the Due Process Clause barred a State from criminalizing private consensual sex between two adult men, Justice Scalia, in dissent, correctly recognized that if the Due Process Clause prevents a State from banning “homosexual sodomy” based on “moral disapprobation of homosexual conduct,” there could be no possible “justification . . . for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’”

“Workability” of the Rules.  The Court also concluded that Roe and Casey should be overruled because the rules that the Court had adopted pursuant to those decisions could not “be understood and applied in a consistent and predictable manner.”  For example, the Court wrote, the line that the Court drew in Casey between permissible regulations and those that impose an “undue burden” on a woman’s right to an abortion “has proved to be impossible to draw with precision.”  For example, different Courts of Appeal had reached conflicting decisions regarding the constitutionality of certain types of restrictions, such as waiting periods and parental notification requirements. 

Nearly seven years after its issuance, Obergefell has not created any similar implementation difficulties.  States have been regulating marriage, just as they always have, but expanding its reach to a relatively small number of same-sex couples who wish to participate in this long-established institution.  (According to the U.S. Census Bureau, fewer than one-half of one percent of all married couples are same-sex couples, although this percentage is expected to continue to increase over time as more gay and lesbian couples decide to marry.)

 If anything, the situation that existed prior to Obergefell – and which would exist again if the Court overrules that decision – is the unworkable one.  As we explained in our previous blog, before Obergefell, same-sex couples who got married in a State that had marriage equality, but then moved or even travelled to a State that did not, faced horrific challenges in critical areas, such as making healthcare decisions for an incapacitated spouse or obtaining a divorce.  The situation would be even worse if the Court now reversed Obergefell, leaving it to each State to determine the legal status of marriages involving same-sex couples that were performed after that decision.  In particular, reversing Obergefell would cause significant uncertainty in States like Texida that previously had adopted constitutional or statutory provisions limiting marriage to opposite-sex couple and that had only allowed same-sex couples to marry because the Court’s decision in Obergefell required them to do so.

Absence of concrete reliance.  Finally, the Court found that Roe could be overruled because no one had “concretely” relied on it.  While the Justices recognized that courts should be wary of overruling a prior case when doing so would “upend substantial reliance interests,” the Court stated that such interests must be “very concrete  . . . like those that develop in cases involving property and contract rights.”  The Court went on to conclude that Roe had not created any “concrete” reliance interests because, in the case of abortion, “advance planning of great precision” is not “obviously a necessity.” 

Whatever the merits of the Court’s analysis may be, its decision in Obergefell requiring States to allow same-sex couples to marry clearly created “concrete reliance interests.”  Marriage resembles a long-term contractual agreement between the two spouses.  Marriage creates obligation for each spouse, such as the duty to support the other spouse financially.  Married spouses also have important rights, such as right to make medical decisions for an incapacitated spouse.  Same-sex couples rely on these mutual rights and obligations.

Marriage also creates significant property interests.  For example, if two people are married, and one dies, the surviving spouses can inherit the deceased spouse’s assets tax free.  By contrast, if the law does not recognize the validity of a couple’s marriage, then the surviving spouse may be required to pay substantial taxes on the inheritance.  This is the exact situation that gave rise to the United States v. Windsor, in which the Supreme Court struck down the infamous Defense of Marriage Act, which had denied federal recognition to lawful same-sex marriages.  Same-sex couples, like all couples, clearly structure their financial arrangements in reliance on such property rights.

 In light of the above, Adam and Steve can convincingly argue that the Court’s decision in Obergefell finding that same-sex couples have the right to marry is binding precedent, and that – even if a majority of the Justices now believe that the case was wrongly decided – the Court’s subsequent decision in Dobbs does not provide the “special justification” needed to overrule it.

State Laws That Allow Heterosexual Couples to Marry, While Barring Gay and Lesbian Couples From Doing So, Violate The Equal Protection Clause

Mr. Gardner and Mr. Appletree also can persuasively argue that because the Texida Constitution allows heterosexual couples to marry, while prohibiting gay and lesbian couples from doing so, it violates the 14^th Amendment’s Equal Protection Clause, which provides that no State may “deny to any person within its jurisdiction the equal protection of the laws.” 

Adam and Steve should first note that, while the Obergefell decision relied primarily on the Due Process Clause, the Court expressly stated that “[t]he right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection.”  However, the Court’s Equal Protection discussion was relatively brief, was not essential to its decision, was closely intertwined with its Due Process analysis, and did not apply the test that the Court typically uses to decide Equal Protection cases.  Therefore, the couple should make a detailed Equal Protection argument, using the Court’s established analytic framework.   Specifically, the couple should argue that:

• State laws that distinguish on the basis of sexual orientation should be subject to the same level of heightened scrutiny as State laws that distinguish on the basis of gender, which the Court often refers to as “intermediate scrutiny.”

• Applying intermediate scrutiny, the Court should rule that State laws that allow heterosexual couples to marry, while forbidding gay and lesbian couples to do so, violate the Equal Protection Clause because the differential treatment is not “substantially related” to achieving an “important” purpose.

While the couple will face some challenges, they should be able to prevail.

The Court’s established framework for resolving Equal Protection claims.  Despite the unambiguous language of the Equal Protection Clause, the Supreme Court has been reluctant to “substitute its judgement” for that of an elected legislature as to when it is acceptable for a State to treat one group differently from another.  Therefore, the Court generally has used a very deferential standard to determine whether a legislative distinction violates the Equal Protection Clause.  [We use the term “legislative distinction” to refer to any legally binding constitutional, statutory, executive, or administrative act that treats different classes of people differently.]  However, the Court has recognized that legislative distinctions involving certain groups that historically have been the victims of discrimination should subject to more rigorous constitutional review.  At the same time, the Court has recognized that some of these groups have distinguishing features that could justify differential treatment in certain cases.  Consistent with this recognition, the Court has identified three levels of scrutiny:  rational basis review; strict scrutiny; and intermediate scrutiny.    

•   Rational basis review. Because of its reluctance to “second guess” State legislative distinctions, the Court usually assesses the constitutionality of such distinctions using its most deferential approach, “rational basis” review.  In such cases, the Court will uphold a legislative distinction if there is a “rational relationship” between the distinction and any “legitimate interest” that the State conceivable might have, even if this was not the actual reason why the State made the distinction.  In such cases, the Court generally finds the distinction constitutional.

• Strict scrutiny.   At the other end of the spectrum, if the Court finds that a legislative distinction adversely affects a group that has long been subject to discrimination – which the Court refers to as a “suspect class” – and that States usually make distinctions involving this class because of prejudice, it will apply strict scrutiny.  The Court has identified two significant suspect classes:  racial minorities and religious minorities.  When the Court applies strict scrutiny, it shifts the burden to the State to demonstrate that it actually adopted the distinction to achieve a “compelling” purpose and that the distinction is the “least restrictive means” to do so.  In such cases, the Court generally finds that the distinction violates the Equal Protection Clause. 

• Intermediate scrutiny. Finally, if the Court finds a legislative distinction adversely affects a group that has long been subject to discrimination, but the group has distinguishing features that can sometimes justify differential treatment – sometimes referred to as a “quasi-suspect class” –  it will apply a somewhat less rigorous standard, often called “intermediate scrutiny.” The Court typically applies intermediate scrutiny in cases involving women and “illegitimate” children.  If the Court applies intermediate scrutiny, the State must demonstrate that it actually adopted the distinction to achieve an “important” purpose and that the distinction bears a “substantial relationship” to achieving that purpose.

For the reasons that we explain below, Adam and Steve should urge the Court to apply intermediate scrutiny to legislative distinctions that are based on sexual orientation.  

Same-sex marriage bans would likely survive rational basis review.  Given that the Supreme Court assesses most Equal Protection cases under the rational basis test, and has done so in prior cases involved sexual-orientation-based distinctions, Adam and Steve might be tempted to ask the Court to apply that standard.   In order to prevail under this highly deferential standard, the couple would have to convince the Court that Texida’s decision to restrict marriage to opposite-sex couples is not “rationally related” to any “legitimate interest” that the State could possibly have.  This could prove difficult to do.

To be sure, under the rational basis standard, the Supreme Court previously has struck down certain legislative distinctions based on sexual orientation.  In those cases, however, the Court did so because it concluded that the only possible reason why the State could have adopted the distinctions was animus towards gay and lesbian people, which is never a legitimate purpose.   For example, in Romer v. Evans, the Court held that a State constitutional amendment that precluded adoption of any law that gave gays and lesbians “minority status, quota preferences, protected status or [a] claim of discrimination” violated the Equal Protection Clause because the only possible purpose of the amendment was “to harm a politically unpopular group.” 

By contrast, in the present case, if the Court conducts a rational basis review, the State could effectively argue that restricting marriage to opposite-sex couples could serve some “legitimate purpose.”  The State would likely rely on Justice Alito’s dissenting opinion in Obergefell.  Effectively applying the rational basis standard, Justice Alito argued that the States had identified a legitimate purpose: “encourage[ing] potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.”  Limiting marriage to opposite-sex couples was rationally related to that purpose, he reasoned, because marriage is “inextricably linked to the one thing that only an opposite-sex couple can do:  procreate.” 

Of course, encouraging potentially procreative couples to get married was probably not the actual reason why the State excluded gay and lesbian couples from marriage.  And, in any case, excluding gay and lesbian couples from marriage because they are not able to procreate may not have been the only way, the best way, or even a particularly effective way to encourage couples who are capable of procreation to marry.  But that does not change the outcome.  In order to survive rational basis review, all that Texida would need to do is to convince the Court  that a State could rationally decide to limit marriage to couples that consist of one man and one women because the State believes that the purpose of marriage is to create a stable environment for any children that may result from a couple’s sexual relations, and that only sexual relations between a man and a women can result in a couple begetting children.

The Court is unlikely to apply strict scrutiny to distinctions based on sexual orientation.  In light of the above, Adam and Steve might decide to try to persuade the Court that, in assessing whether a distinction based on sexual orientation violates the Equal Protection Clause, it should apply strict scrutiny.  Application of strict scrutiny would almost certainly result in the Court finding that limiting marriage to heterosexual couples violates the Equal Protection Clause.  Denying gays and lesbians the right to marry plainly is not the “least restrictive” means to achieve the State’s purported goal of encouraging procreative couples to form stable unions.  Nonetheless, the couple should not take that approach because, for the reasons explained below, the Court is unlikely to apply strict scrutiny in this case.

The Court has identified two bases on which to apply strict scrutiny:  when the distinction denies a “fundamental right” to a specific group of people or when it involves a “suspect class.”  In light of the Court’s rejection of substantive Due Process in Dobbs, it would not be productive for the couple to argue that State restrictions on same-sex marriage should be subject to strict scrutiny because they deprive gay and lesbian couples of a “fundamental right” enjoyed by heterosexual couples.  Rather, the only conceivable way to get the Court to apply strict scrutiny would be to convince the Justices to add sexual orientation to the existing list of “suspect classifications” entitled to strict scrutiny.  Unfortunately, this would be almost impossible to do.

The Supreme Court has applied a number of different criteria to assess whether a particular group should be deemed a suspect class.  This includes whether the group:  possesses immutable and visible characteristics; has been discriminated against or subject to hostility or stigma; and lacks power to protect themselves through the political process.  The Court has concluded that laws that single-out groups with these characteristics for special treatment rarely serve a legitimate purpose. 

Gays and lesbians would appear to satisfy those criteria.  However, the Court is unlikely to add them to the two groups – racial minorities and religious minorities – that it previously has deemed to be suspect classes.  These two groups have a unique legal status and history.  In the case of racial minorities, the Fourteenth Amendment, which was adopted shortly after the Civil War, made formerly enslaved people citizens of the States in which they resided and sought to ensure that these States treated them in the same manner as other citizens.  However, States continued to adopt and enforce pernicious race-based distinction for another one hundred years, making it necessary for the Court to apply the Equal Protection Clause strictly when considering the constitutionality of race-based distinctions.  Similarly, the Constitution provides special protection to religious minorities, who have sometimes faced persecution, through the First Amendment guarantee that government will not infringe on the “free exercise of religion.”  The Court has expressly declined invitations to classify additional marginalized groups – including women, illegitimate children, and developmentally disabled people – as suspect classes.  And it has never expressly considered the possibility of including sexual orientation in this category. 

The Court should apply Intermediate Scrutiny and should rule that State laws that allow heterosexual couples to marry, while forbidding gay and lesbian couples from doing so, violate the Equal Protection Clause because the distinction is not “substantially related” to achieving an “important” purpose.  Given the possibility that the Court would uphold restrictions on same-sex marriage under the rational basis standard, and that it would not apply strict scrutiny, Adam and Steve’s best option is to try to convince the Court to subject distinctions based on sexual orientation to intermediate scrutiny.  If the Court agrees, the couple can make a persuasive argument that distinguishing between heterosexual and gay and lesbian couples regarding marriage eligibility violates the Equal Protection Clause because the distinction is not “substantially related” to an “important” government interest.

Justification for intermediate scrutiny.  Distinctions based on sexual orientation should receive intermediate scrutiny because gays and lesbians have characteristics similar to those that led the Court to treat women as a “quasi-suspect” class eligible for such scrutiny.  The Court based its decision on several factors.  First, gender is an immutable and visible characteristic – or at least one that a person cannot legally and visibly change without great difficulty.  Second, women have long been the victim of serious governmental discrimination, often based on unjustified stereotypes.  For example, for many years, women were excluded from many universities and occupations based on the stereotype that members of the “fairer sex” lacked the intellectual and physical capacity to participate.  Third, women often lack sufficient power in the political process to fully protect their interests.  Until the ratification of the 19^th Amendment in 1920, many States did not allow women to vote.  While the number of women who have been elected to political office continues to grow, women still hold a disproportionately small number of positions at the highest levels of government. 

The same factors that make gender-based distinctions suspect provide a basis for the Court to apply heightened scrutiny to distinctions based on sexual orientation.  Being a homosexual is clearly an immutable characteristic; neither psychiatric therapy nor fervent prayer has proven effective at altering gay and lesbian people’s sexual orientation.  And, while a person’s sexual orientation may be less visible than a person’s gender, many gays and lesbians choose to be “out” to family, friends, and colleagues, while others are not able to conceal their sexual orientation. 

Gays and lesbian also have been the victims of serious governmental discrimination, often as a result of unjustifiable stereotyping.  Gays and lesbians have been depicted as “mentally ill,” “perverts,” “pedophiles” and – more recently – “groomers.”  Based on such stereotypes, the Federal Government and many States long prohibited gays and lesbian from serving in the military, working as a civil servant, or being a teacher. Gay men, in particular, were at risk of arrest for doing no more than congregating in a crowded bar (the event that gave rise to the Stonewall Rebellion, which began the modern gay rights movement) or engaging in consensual sexual activities within the privacy of their own homes (the event that gave rise to the Lawrence case).  At the same time, gays and lesbians were often discriminated against in private employment, housing, healthcare, and access to public accommodations.

Finally, while some homosexuals – especially affluent, white urban gay men – have successfully affected the political process, many gays and lesbians have been unable to secure passage of legislation to protect their rights.  Indeed, about half the States still do not have laws barring discrimination in employment, housing, and access to public accommodations on the basis of sexual orientation.

While these factors make distinctions based on sexual orientation suspect, such distinctions, like gender-based distinction, differ from race-based distinctions in at least two ways that justify applying a somewhat less strict level of scrutiny.  First, as with women, the level of discrimination against gays and lesbians, while significant, “has never approached the severity or pervasiveness of the historic legal and political discrimination” against racial minorities, especially African Americans.  (Mathews v. Lucas, 427 U.S. 495 (1976)).  Second, as with gender-based distinctions, objective differences between gays and lesbians and heterosexuals may justify different treatment in limited circumstances.  In the case of gender-based distinctions, for example, the Court ruled in Rosker v. Goldberg (1981) that differences in physical strength between men and women that could affect their performance in active-duty combat provided a permissible basis for Congress to require young men, but not young women, to sign-up for the military draft.  Similarly, in the case of distinctions based on sexual orientation, the inability of gay and lesbian couples to procreate might provide a permissible basis for a State to make certain substantially related distinctions.  For example, a State might be able to offer to provide costly genetic screening to heterosexual couples prior to issuing them a marriage license, while not offering this service to gay and lesbian couples.

While there are good arguments for expanding the list of categories for which intermediate scrutiny is appropriate to include sexual orientation, the Justices may be reluctant to do so.  After all, a court that is seeking to end the practice of identifying “fundamental rights” under the 14^th Amendment’s Due Process Clause may be disinclined to protect the very same rights under the 14^th Amendment’s Equal Protection Clause.  However, in light of the Court’s recent decision in Bostock v. Clayton County, Adam and Steve could make another argument yfor applying intermediate scrutiny to which a majority of the Justices might be receptive. 

In Bostock, the Court ruled that the language in Title VII of the Civil Rights Act of 1964 that prohibits an employer from discriminating “on the basis of . . . sex” includes discrimination on the basis of sexual orientation or gender identity.  The Court reasoned that an employer who fires an individual merely because that individual is gay or transgender is discriminating on the basis of sex because the employee’s “[s]ex plays a necessary and undisguisable role in the decision.”  For example, if the employer would not have fired a female employee for marrying a man, but the employer fires a male employee for marrying a man, the employer has discriminated on the basis of sex.  In light of Bostock, the couple could argue that, under existing precedent, legislative distinctions based on sexual orientation are gender-based distinctions and, therefore, already are subject to intermediate scrutiny.

Application of intermediate scrutiny.  If the Court agrees to subject distinctions based on sexual orientation to intermediate scrutiny, the State will need to demonstrate that its decision to issue marriage licenses to heterosexual couples, while denying them to gay and lesbian couples, was intended to further an “important” government interest by means that are “substantially related” to achieving that interest.  The State is likely to find it very difficult to do so.

The State did not bar gay and lesbian couples from marrying in order to advance an “important” governmental interest.  In Obergefell, the States claimed that the purpose of marriage is to encourage couples who are capable of procreation to enter into a stable long-term relationship in order to better care for any children that might result from their sexual congress.  Presumably, the State would make the same claim in the current case.  The State clearly has a compelling interest in fostering such stable relationships.  However, if the Texida constitutional amendment is subject to intermediate scrutiny, the burden will be on the State to demonstrate that it actually excluded gay and lesbian couples from marriage for this purpose. 

In the case of long-standing laws governing the marriage, it is hard to know the States’ original intent.  The reality is that, at the time the States enacted these laws, it was a given that only opposite-sex couples could marry; same-sex marriage was literally inconceivable.  However, in the years immediately prior to Obergefell, when some States began to legalize same-sex marriage, many other States adopted constitutional amendments and enacted statutes that expressly limited marriage to “one man and one woman.”  The couple should argue that, rather than seeking to incentivize heterosexual couples to marry, the actual reason why Texida amended its Constitution to limit marriage to “one man and one woman” was to show moral disapproval of the “gay lifestyle.”  As the Court has repeatedly recognized, animus against gays and lesbians is never a legitimate justification for State action.  

Excluding gay and lesbian couples from marrying is not “substantially related” to the State’s purported purpose.  Even if the Court accepts the State’s claim that it was seeking to encourage procreative couples to enter into a stable long-term relationship, the State still would need to demonstrate that the means that it chose – allowing heterosexual couples to marry, while refusing to grant marriage licenses to gay and lesbian couples – is “substantially related” to that goal.  There is a good chance that the State could not do so.

The Court first applied the “substantially related” test in Craig v. Boren (1976).  In that case, the State adopted a law that allowed females between the ages of 18 to 20 to purchase low-alcohol beer, while barring males from doing so until they reached the age of 21.  The stated purpose of the law was to increase traffic safety.  In enacting the law, the State relied on a study showing that 18 to 20 year old males in the State were approximately ten times more likely than females in that age group to be arrested for driving while under the influence of alcohol (2.0 percent of the males versus 0.18 percent of the females).  The Court nonetheless ruled that, while “not trivial in a statistical sense,” the evidence did not demonstrate a substantial relationship between “maleness” and “drinking and driving.”  The Court therefore held that this “unduly tenuous fit     . . . hardly can form the basis for employment of a gender line as a classifying device.” “Indeed,” the Court continued, “prior cases have consistently rejected the use of sex as a decision making factor even though the statutes in question certainly rested on far more predictive empirical relationships than this.”

There is barely a “tenuous fit” – much less a substantial relationship – between excluding gay and lesbian couples from marrying and encouraging couples who are capable of procreating to enter into a stable long-term relationship for the benefit of any resulting children who may result from the couple’s sexual liaisons.  Based on analysis of Census Bureau data, approximately 15 percent of the heterosexual couples who get married each year in the United States include a woman over 45 years old.  Those unions are presumptively incapable of leading to procreation.  In addition, about ten percent of younger heterosexual couples who get married cannot have children, because one member either is infertile or has had a medical procedure (such as a hysterectomy or a vasectomy) that precludes the couple from procreating.  Yet, no State has ever felt it necessary to exclude those types of non-procreative couples from marriage in order to encourage couples who have the ability to procreate to enter into stable long-term relationships for the benefit of any children that may result from their coital union. 

While reliable statistics about same-sex marriage are surprisingly scarce, it appears that less than two percent of the couples who get married each year in the United States are same-sex couples.  If it is not necessary for State to exclude from marriage the 25 percent of heterosexual couples who are unable to procreate in order to encourage potentially procreative couples to get married, the State cannot plausibly claim that there is a “substantial relationship” between excluding the two percent of couples who seek to get married who are gay or lesbian and achieving the State’s purported goal of encouraging procreative couples to marry.

Indeed, excluding gay and lesbian couples from marriage actually impedes the State from achieving what it claims to be its ultimate goal, ensuring that children are brought up in a stable environment.  As the Court recognized in Obergefell, “many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted.”  Allowing gay and lesbian couples to marry, the Court continued, “affords the permanency and stability important to [those] children’s best interest,” while “[e]xcluding same-sex couples from marriage . . . harm[s] and humiliate[s] the children of same-sex couples.”

Epilogue

After reading the briefs, hearing oral argument, and taking the matter under advisement, the Supreme Court issues its decision in the case of Gardner v. Eden.   The Court rejects the State’s invitation to overrule Obergefell and, instead, reaffirms its holding that same-sex couples have a constitutional right to marry.  However, rather than relying on substantive Due Process, the Court bases its decision on the Equal Protection Clause.  The Court therefore reverses the decision of the Court of Appeals, remands the case, and orders the State to issue a marriage license to Adam and Steve.

Two weeks later, back home in Texida, the couple is married.

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Jack Nadler is a Retired Partner in the Washington DC office of Squire Patton Boggs.  While at Squire, Jack served as outside counsel for SAGE (formerly Services and Advocacy for Gay Elders), which represents the interest of LGBT older adults.  Jack led the team that drafted the extensive friend of the court (amicus) brief that SAGE filed in Obergefell v. Hodges, the case in which the Supreme Court struck down State restrictions on same-sex marriage.  Jack previously taught law at American University’s Washington College of Law in Washington, DC and the China University of Political Science and Law in Beijing, and served as a Law Clerk to the Hon. Joel M. Flaum on the United State Court of Appeals for the Seventh Circuit in Chicago.  He is a graduate of Columbia Law School, the Columbia University School of International and Public Affairs, and Vassar College.