By Amanda Molina

Recently granted certiorari by the Supreme Court for the 2015 term,Obergefell v. Hodges, consolidated with three other challenges to state marriage bans, will hopefully resolve the same-sex marriage question.[1]Specifically, the Supreme Court will consider whether the Fourteenth Amendment requires states with same sex-marriage bans, including Tennessee, Michigan, Ohio, and Kentucky, to grant marriages of same-sex couples.[2] Counsel for the Petitioners will vehemently argue that state marriage bans violate both due process and equal protection since the bans cause pervasive and profound injury under the Fifth and Fourteenth Amendments, and that marital classifications should trigger heightened scrutiny.[3] The Petitioners’ attorney contends that same-sex couples are excluded from marital benefits, including loss of survivor’s social security, spouse-based medical care, and tax benefits.[4]

On the other hand, counsel for the Respondents will argue the following: 1) the role of defining marriage is reserved to the states; 2) states have an interest in maintaining the traditional definition of marriage since it encourages individuals with the capacity to bear children to enter into a union that supports raising children; 3) having any particular marriage definition does not violate due process since United States v. Windsor(“Windsor”) merely pointed out that laws banning same-sex marriage pose limitations that are not “deeply rooted;” and 4) Michigan’s marriage laws should not be subject to heightened scrutiny since sexual orientation is not a protected class under the Court’s four-part test.[5]According to Michigan, its laws do not discriminate based on sexual orientation, but rather classifies based on “biological complementarily.”[6]

Since Windsor, the Sixth Circuit became the only federal court of appeals to uphold state laws denying marriage equality to same-sex couples, which created a split among the circuits.[7] In light of both arguments, it is likely that the court will not utilize strict scrutiny against state same-sex marriage bans under equal protection grounds. However, there is a strong chance they will still find that states are required to grant same-sex couples marriage licenses since same-sex couples are denied the same benefits under the law that heteronormative couples enjoy.[8]

Currently, the federal government recognizes same-sex marriage in thirty-seven states.[9] The answer to the same-sex marriage debate, it seems, will hinge on whether the Court decides to utilize heightened scrutiny, rational basis review, or intermediate scrutiny.[10] UntilWindsor, sexual orientation received rational basis by the Supreme Court, the lowest level of judicial scrutiny.[11] Unlike rational basis, a strict scrutiny analysis presumes a law to be invalid unless the government can demonstrate a compelling interest.[12] The compelling state interest the Sixth Circuit argued is underinclusive because it rests on the notion that marriage is an institution to encourage the mutual raising of unintended children, disregarding the fact that infertile couples can enter marriage as well as fertile couples who simply do not want to reproduce.[13] Considering the Court struck down the Defense of Marriage Act (“DOMA”) in Windsor utilizing something more than rational basis, due process arguments like the ones in Loving v. Virginiaand SmithKline Beecham Corp. v. Abbott Labs. are much stronger than the animus-like arguments utilized by the Respondents.[14] Loving ruled in favor of interracial marriage on both due process and equal protection grounds, holding that race requires strict scrutiny.[15] Even if the Petitioners cannot successfully argue the bans infringe their rights based on equal protection grounds, they have a strong due process argument since Loving declared that marriage is a “fundamental right of man.”[16]Although the statute in Loving differs from Obergefell, Virginia’s anti-miscegenation laws denied certain racial classes equal protection under the Constitution the same way same-sex marriage bans deny same-couples marital licenses.[17]

The Supreme Court will likely rule that same-sex marriages are legal inObergefell this session. The Court should refer to the reasoning inWindsor and conclude that sexual orientation requires more than rational basis review, concurring with every other appellate court aside from the Sixth Circuit that has ruled upon this issue.[18] It should apply the criteria for a suspect class such as that in Loving and find that same-sex marriage bans deny LGBT people equal protection of the law despite LGBT people being equally worthy of heightened judicial protection as other disenfranchised classes.[19]

[1] See Obergefell v. Hodges, No. 14-556, 2015 WL 1499369, at *1 (U.S. Apr. 3, 2015).

[2] See id. (stating that the U.S. Courts of Appeals for the Fourth, Seventh, Ninth and Tenth Circuits have found state bans on same-sex marriage to be unconstitutional).

[3] See DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014); Brief of Petitioner at 20-32, Deboer v. Snyder, No. 14-571 (Feb. 27, 2015).

[4] See id.

[5] See Brief of Respondent at 10-37, Deboer v. Snyder, No. 14-571 (Mar. 27, 2015) (citing United States v. Windsor, 133 S. Ct. 2675 (2013)).

[6] See id. at 21-28.

[7] See Obergefell v. Hodges, No. 14-556, 2015 WL 1499369, at *1 (U.S. Apr. 3, 2015) (stating that a circuit split was created when the Sixth Circuit upheld Michigan’s ban on same-sex marriage in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014)).

[8] See United States v. Windsor, 133 S. Ct. 2675 (2013) (applying a more heightened analysis to sexual orientation compared to rational basis review).

[9] See DeBoer v. Snyder, 772 F.3d 388, 392 (6th Cir. 2014).

[10] See generally United States v. Windsor, 133 S. Ct. 2675 (2013).

[11] See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (using rational basis review to overturn a state law that prohibited the establishment or exercise of laws and government programs that protect gays from discrimination); Bowers v. Hardwick, 478 U.S. 186, 191 (1986) (upholding an anti-sodomy statute under rational basis review), overruled byLawrence v. Texas, 539 U.S. 558, 578 (2003) (finding no legitimate state interest to justify an anti-sodomy statute under rational basis).

[12] See Romer, 517 U.S. at 632 (stating that a law’s purpose that is driven only by animus towards the affected group is impermissible even under rational basis review).

[13] See DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) (determining that the state has a legitimate state interest in limiting the definition of marriage to a man and a woman).

[14] See United States v. Windsor, 133 S. Ct. 2675, 2690-92 (2013) (applying the elements of a strict scrutiny analysis to a sexual orientation-based marriage prohibition despite omitting to clarify what level of judicial scrutiny was actually applied); Loving v. Virginia, 388 U.S. 1, 9 (1967) (applying strict scrutiny to race-based marriage prohibitions); see alsoCraig v. Boren, 429 U.S. 190 (1976) (establishing an intermediate standard of judicial review for sex-based classifications); accord, SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 482 (9th Cir. 2014) (determining that the Supreme Court in Windsor attributed DOMA’s actual purpose and effect as being antithetical to rational basis review).But see Brief of Respondent at 10-37, Deboer v. Snyder, No. 14-571 (Mar. 27, 2015) (stating that states have a rational interest in limiting same-sex couples’ rights to marry because states encourage couples to marry with child bearing capabilities).

[15] See Loving v. Virginia, 388 U.S. 1, 7-11 (1967) (clarifying that race is a protected class that requires strict scrutiny when determining if a state law infringes based upon constitutional grounds).

[16] See id.

[17] Compare Loving v. Virginia, 388 U.S. 1, 1-9 (1967) (denying interracial marriages based upon racial classifications) with Obergefell v. Hodges, No. 14-556, 2015 WL 1499369, at *1 (denying same-sex marriages based on sexual orientation classifications).

[18] See SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 471 (9th Cir. 2014(including history of discrimination, immutable characteristic, and political powerlessness requires sexual orientation to have a greater standard of review than rational basis); see also Latta v. Otter, 2014 WL 1909999 (D. Idaho 2014), aff’d 2014 WL 4977682 (9th Cir. 2014) (declaring unconstitutional under any level of scrutiny laws that bar same-sex marriage, joining the Eighth, Sixth, Fifth, Fourth, First, and Tenth Circuits). But see DeBoer v. Snyder, 772 F.3d 388, 392 (6th Cir. 2014) (holding sexual orientation-based classifications only require rational basis review).

[19] See Craig v. Boren, 429 U.S. 190 (1976) (establishing an intermediate standard of judicial review for sex-based classifications); Loving v. Virginia, 388 U.S. 1, 7-9 (applying strict scrutiny to race-based marriage prohibitions); SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 479-80 (9th Cir. 2014).

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