Ball of Con(stitutional)Fusion: The Supreme Court’s Evolving Gay Rights Jurisprudence
The United States Supreme Court is on the precipice of deciding whether same-sex couples have a constitutional right to marry. In a quartet of cases from Kentucky, Tennessee, Ohio, and Michigan, the Court seems poised to decide that laws restricting marriage to a man and a woman treat gay and lesbian couples unfairly.1 While it is impossible to predict the rationale the Court might use to decide the case, it is clear that the Court’s evolving jurisprudence on LGBT rights has seeded the ground in ways helpful to the movement.
How did we reach this point? It might be best to start in 2013, and then to spin backward through time.
In June 2013, the United States Supreme Court issued two decisions that accelerated movement toward full marriage equality for these couples. In Hollingsworth v. Perry, the Court effectively threw out California’s Proposition 8, thereby reinstating the marriage rights of gay and lesbian couples in the nation’s most populous state.2
Of even greater significance, though, was the Court’s decision in United States v. Windsor3 striking down the most significant piece of the federal Defense of Marriage Act (“DOMA”).4 The law had denied federal recognition to same-sex couples, even those validly married in their home states. That action has led to further positive developments for same-sex couples, as federal administrative agencies have extended many of the most substantial federal benefits to married same-sex couples living in states that don’t recognize such marriages. Especially noteworthy are decisions allowing couples to file federal joint tax returns,5 permitting citizens to sponsor their non-U.S. resident spouses into the country,6 and extending benefits to spouses of members of the military.7
At the state level, the movement toward marriage equality had until recently been less successful, but recent developments buoyed proponents’ hopes that final victory is in sight. After a two-decades-long, uninterrupted drumbeat of failure at the ballot box, in 2012 advocates won victories in three states.8 In addition to the Proposition 8 win mentioned above, in 2013 seven additional states moved into the marriage equality column.9 After clerks in New Mexico began issuing licenses to same-sex couples, in late 2013 the New Mexico Supreme Court held that same-sex couples had the right to marry.10 With that decision, the number of jurisdictions within the U.S. recognizing same-sex marriages had climbed to 18 by year’s end.11
Then, mostly because of Windsor itself, 2014 saw an explosion in the number of states recognizing the marriage rights of same-sex couples. Lawsuits alleging that state laws barring recognition of same-sex marriages erupted in every state.12 As of early 2015, several federal appellate courts had decided in favor of marriage equality, with only the Sixth Circuit’s 2–1 decision to the contrary.13 And officials in at least two states (Oregon and Pennsylvania) decided not to appeal decisions striking down their laws.14 Thus, on the eve of the Supreme Court’s decision in the consolidated cases from the Sixth Circuit, 37 states (and the District of Columbia) recognized the marriages of gay and lesbian couples.15
The path for these suits has been paved in three layers. First, since 2003 state courts have been issuing decisions recognizing that same-sex couples have a constitutional right to marry. Second, the Supreme Court’s decision in Windsor is so broadly written that it provides plenty of useful language for lower federal courts and state courts to use in declaring state “mini-DOMA” laws invalid. Third, the political climate surrounding marriage equality has shifted seismically, especially in the past few years. Now, consistent majorities of Americans favor granting same-sex couples full marriage equality.16 No one can reasonably think that judges are unaffected by this constellation of developments—including the political realities. In fact, the Supreme Court itself might have obliquely signaled in Hollingsworth that the movement toward equality might one day provide it with the national consensus needed to spur it to the conclusion that same-sex couples have a constitutional right to marry.17
Two principal arguments have been advanced in service of the right of gay and lesbian Americans to marry a person of the same gender.18 First, the denial of marriage licenses is said to violate their fundamental right to marry. That right has been clearly established by the Supreme Court in several cases as subsumed under the liberty promised by the Due Process Clause of the Fifth and Fourteenth Amendments to the U.S. Constitution. Second, as the term “marriage equality” suggests, proponents have argued that to deny same-sex couples the right to marry is to deprive them a right that opposite-sex couples enjoy, thereby making them unequal, also in violation of the Fourteenth Amendment.
The equality argument has been in ascendance, both as a litigation strategy and as the principal ground of decision in many of the cases. Windsor itself makes it easy to understand the appeal of this approach. The plaintiff, Edith Windsor, was legally married to Thea Spyer under New York law. But when Spyer died, Windsor, as inheritor of Spyer’s estate, was saddled with a tax bill of more than $350,000.19 Had Spyer been a man, Windsor would have owed no federal estate taxes because of a spousal exemption that—because of the Defense of Marriage Act—was available only to opposite-sex couples. It would be hard to discern a clearer case of inequality, and the Supreme Court took the occasion to inter the law. One need not resort to more abstract arguments about fundamental rights and the ill-understood concept of “substantive due process” when a much simpler and more intuitive path to success is at hand.
Yet Windsor contains another important truth, one that has been more fully developed in a few state courts. The equality argument is so strong in part precisely because it is closely braided to the argument from fundamental rights. Together, these arguments form an alloy that is harder and more durable than their simple addition would suggest.
Relying heavily on state court decisions that preceded Windsor, this chapter explores the developing jurisprudence of marriage equality. For reasons that will become clear, an important part of this discussion is the movement by a few state courts toward recognition that discrimination based on sexual orientation warrants a high degree of scrutiny from reviewing courts. The state courts have proceeded in roughly three ways. There is insight to be found in each of these approaches, and all will be explored.
The discussion then turns from these state cases to Windsor, an analytically undernourished decision that can be fleshed out by more complete discussion of the Court’s own earlier cases, and by reference to the state cases that are its intellectual progenitors. Although they are using somewhat different analyses and legal tools, the Supreme Court and these state courts are developing a body of law that acknowledges the dignity and full citizenship of gay and lesbian persons through a constitutional fusion of equality and fundamental rights. This emerging approach can be helpful not only to same-sex couples seeking to marry, but to any group that can convince the Court that a particular law contributes to their relegation to second-class status. In short, the Court seems to be in the midst of recognizing a broader, antisubordination principle.
Equality and Sexual Orientation: Contextualizing the State Cases
The Supreme Court’s jurisprudence of equality might uncharitably be called a mess, at least when it comes to the treatment of sexual orientation. In general, laws challenged as depriving a group of people of their right to equality under the law are evaluated quite deferentially; if the law is said to have a rational basis, it will be upheld.20 But laws that burden a fundamental right, or that target certain groups, are evaluated against much tougher standards. Discriminations based on race are policed to determine whether they meet a strict scrutiny analysis: do the laws advance a compelling state interest, and is there no less restrictive alternative that might have been used?21 When a law discriminates on the basis of gender or legitimacy, the scrutiny is only slightly lower: laws must further an important government interest, and be substantially related to that interest.22 Recently, and controversially, the Court appears to have ratcheted up this so-called “intermediate scrutiny” even further, stating that laws discriminating on these bases need an “exceedingly persuasive” justification.23 Together, these latter two standards are often referred to as “heightened scrutiny,” and laws challenged under either of them usually fail.
In deciding whether laws targeting a particular group are to be assessed under a heightened scrutiny standard, the Court has examined several factors relating to that group. First, is the group politically powerless? Second, have members of the group historically been discriminated against? Third, is membership in the group immutable (as is the case with race)? And finally, do the laws targeting the group relate to the ability of the group’s members to contribute to society?24
Surprisingly, the Supreme Court has never directly answered the question whether sexual orientation discrimination should be judged under a heightened scrutiny standard. Indeed, the Court has rarely even addressed the issue. In a 1985 dissent to the denial of a certiorari petition, Justice Brennan made the case for considering sexual orientation to be a suspect class.25 And when the Court granted the petition for review in Windsor, it was widely expected that it would address the issue of heightened scrutiny, but it did not.26 Mostly, there has been silence.
That silence notwithstanding, the Court has issued two major decisions in favor of the LGBT community that are grounded in equal protection, and another that eschewed equal protection only because the Court thought that a decision on that basis would not have been strong enough!27 Before considering those decisions, it will be useful to consider the development of equal protection law as applied to the marriage equality cases in state courts. These contain important tools for understanding how the Supreme Court is moving in this area.
State supreme courts have issued decisions in the marriage equality cases that have applied different, often creative, approaches to the issue of equal protection. A couple of states have used a flexible approach that led to advances just short of full marriage equality. Another held for full marriage equality under a form of rational basis analysis that was more searching than the usual inquiry under that standard. And most recently, a few states have applied heightened scrutiny to laws that discriminate based on sexual orientation. These results will turn out to be important in assessing the development of the Supreme Court’s equal protection jurisprudence.
Marriage Equality Before Heightened Scrutiny
In 1999, the Vermont Supreme Court decided Baker v. State.28 There, same-sex couples had challenged their exclusion from marriage under the state’s common benefits clause, which is analogous to the Equal Protection Clause of the U.S. Constitution. Perhaps because of the difficulty of the issue before it, or perhaps because of a concern that considering sexual orientation a suspect class could have unforeseen consequences, the court expressly abandoned its previous use of the tripartite classification for evaluating equal protection challenges, and announced that, going forward, it would examine challenged laws to determine whether they bear “a reasonable and just relation to the governmental purpose.” This question was to be answered “consistent with the core presumption of inclusion,” aided by consideration of several factors. For present purposes, chief among these is “the significance of the benefits and protections of the challenged law.”29
The court found that same-sex couples could not be excluded from the benefits and rights of marriage, but ordered a surprising remedy; while the legislature would be required to grant gay and lesbian couples these benefits and rights, it would not be required to issue them marriage licenses.30 Lawmakers were instead invited to construct a parallel institution. This they did in short order, and the civil union was born.31 Although the court articulated prudential reasons for stopping short of ordering the remedy the plaintiffs sought, it seems reasonable to conclude that considering the “significance of the benefits and protections” as a central factor in assessing constitutionality also supported this creative but limited remedy. Once the court ordered the benefits equalized, the residual unfairness of fencing same-sex couples out from the institution of marriage itself led to the civil union under the flexible equal protection standard that the court had just adopted.32
My argument that a departure from the tripartite analysis leads to the “virtual marriage” status of the civil union is supported by the decision of the New Jersey Supreme Court in Lewis v. Harris.33 New Jersey is similar to Vermont in that these two states are among a very few that do not begin by classifying equal protection cases into two or three classes, and then applying different tests based on that classification. Indeed, New Jersey’s test bears a striking resemblance to Vermont’s. The court has weighed “three factors: the nature of the right at stake, the extent to which the challenged statutory scheme restricts that right, and the public need for the statutory restriction.”34 Applying that standard, the court surgically separated the benefits of marriage from the title, and then held that the residual rights of the same-sex couples at stake—to have their relationships called “marriage”—was not important enough (to be blunt) to tip the balance of the factors in their favor.35 Thus, the Lewis court gave the legislature the same remedial option as had the Baker court, and the result was the same: civil unions.36
In sum, in the only two states considering the same-sex marriage issue that use a general balancing test for equal protection challenges, the courts have focused on rights and benefits “only” and have given their legislatures the wiggle room needed to enact civil union compromises. But given what other state courts were doing at the time—especially in 1999, when Baker was decided—the civil union represented a substantial step forward for gay and lesbian couples seeking legal recognition of their unions.
Until 2008, all other state supreme court cases to consider equal protection challenges to the marriage laws used rational basis analysis. In all but one case, the result was defeat for the same-sex couples seeking to marry. The one case that found for the couples was able to see a dimension of the Supreme Court’s decisions in two cases involving sexual orientation that the other courts missed.
In Washington,37 New York,38 and Maryland,39 courts applied rational basis analysis in a conventional way, and thereby found legislative justification for restricting marriage to same-sex couples. Both decisions articulate extreme deference to legislative classifications; as the Washington Supreme Court put it, “the court may assume the existence of any conceivable set of facts that could provide a rational basis for the justification,”40 even if those facts formed no part of legislative purpose. And both the New York and Washington courts found such a basis in the odd idea that the legislature might have wanted to encourage “responsible procreation” through marriage.41
In telling contrast stands the opinion of the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health.42 In a decision that augured Windsor, the court gave eloquent expression to foundational principles of dignity and equality before presenting a more straightforward (if not overly deferential) application of the rational basis test. At the outset—before even summarizing the facts and procedural posture of the case—the court contextualized the discussion that followed with the pronouncement that the “Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.”43 Exclusion from marriage, the court continued, “is incompatible with the constitutional principles of respect for individual autonomy and equality under the law.”44
Moving further into the decision, the court pushed the discussion of the intangible benefits of marriage ahead of a long list of the legal rights associated with it, thereby emphasizing the importance of “the decision whether and whom to marry” as “among life’s momentous acts of self-definition.”45 That act of self-definition is compromised if “a State [wields] its formidable power to regulate conduct in a manner that demeans basic human dignity ….”46 Here, the court cited the then-recent decision in Lawrence v. Texas,47 in which the Supreme Court had held that laws criminalizing same-sex intimacy were obnoxious to the liberty guaranteed by the Fourteenth Amendment.48
It did not escape notice by one of the dissenting justices that the court’s lengthy foregrounding of the state’s asserted justifications for excluding same-sex couples from marriage was hardly typical of the kind of rational basis analysis in which the court then engaged.49 Yet by so doing, the court was able to link back from the justifications to the broader points it had made earlier about the second-class citizenship implied by exclusion from marriage, and then to circle back to connect its discussion of the specific justifications to its earlier, general points about disrespect and subordination.
One example of the court’s treatment of the state’s justifications will suffice to illustrate the point. After demolishing the state’s argument that marriage “provides a favorable setting for procreation,” the court went further and attached its conclusion to the Supreme Court’s statement in Romer v. Evans,50 where an amendment to the Colorado state constitution that ruled out laws to protect the LGBT community from discrimination was struck down because it “identifie[d] persons by a single trait and then denie[d] them protection across the board.”51 Doing so, the Goodridge court held, “confers an official stamp of approval on the destructive stereotype that same-sex relationships are … inferior to opposite-sex relationship and not worthy of respect.”52
In concluding, the court stated: “The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. [This] suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual.”53 In this language one detects traces of both equality and fundamental rights.
Thus, among the several state supreme courts to have faced the marriage equality issue before 2008, the results were decidedly mixed. Courts either used a flexible standard to fashion a compromise (in New Jersey and Vermont), or reflexively fell back on rational basis analysis and capitulated to plainly absurd arguments. Only the Goodridge court looked more deeply into the justifications than is typical in cases decided under the rational basis analysis, and there found … nothing. We will have occasion to revisit Goodridge as part of the discussion of Windsor, because in some ways Goodridge is the intellectual progenitor of the more recent case.
But in general, it is not surprising that the tide began to swell in favor of marriage equality only when courts turned to the more searching analysis commanded by the “heightened scrutiny” standard. The California Supreme Court became the first to do so in its 2008 decision, In Re Marriage Cases.54
Heightened Scrutiny Analysis in State Court Marriage Equality Decisions
The California court’s decision in In Re Marriage Cases is worth close analysis, because it connects the rationale for applying a higher level of scrutiny to the specific ways in which the law deprived same-sex couples of both equality and a fundamental right. As we shall see, moreover, the court’s rhetoric, if not precisely its ratio decidendi, rings strongly through Justice Kennedy’s decision in Windsor. But the California Supreme Court was much clearer and cleaner in its analysis than the U.S. Supreme Court.
When In re Marriage Cases came before the California Supreme Court in 2008, California had moved, through a series of incremental steps, from a limited domestic partnership law to a statutory scheme that essentially mirrored marriage.55 Like the more recent civil union status,56 this law conferred all the rights and benefits of marriage but pointedly withheld the name. In a 4–3 decision, the court held that this two-tiered system violated the state’s constitutional guarantees of both substantive due process and equality, and that same-sex couples were entitled to marriage licenses.57
Under California precedent, the inquiry into whether a class should be entitled to heightened scrutiny is a distillate of the factors the U.S. Supreme Court uses in making the same determination. As the In Re Marriage Cases court stated, the two crucial requirements for suspect class status are that the characteristic in question “ bear[s] no relation to a person’s ability to perform or contribute to society, and  [is] associated with a stigma of inferiority and second-class citizenship, manifested by the group’s history of legal and social disabilities.”58
My reading of the case is that domestic partnership status, in an odd way that the court itself only obliquely acknowledged, impelled the court towards recognizing sexual orientation as a suspect class. The second requirement, as noted above, seems to have been created with just this sort of marriage/domestic partnership statutory classification in mind. Why withhold a name, and nothing else, if not to remind gays and lesbians of their inferiority and disfavored status? And few would argue that, whatever the advances today, gays and lesbians have not suffered “a history of legal and social disabilities.” In a related way, the “virtual equivalence” of domestic partnerships, coupled with the panoply of other rights and protections afforded over time to gays and lesbians—and, significantly, their children—demonstrates that the “characteristic” is unrelated to their ability to contribute to society. Thus, the first requirement for suspect class status is also met, and also tied to the domestic partnership/marriage divide.
The determination that sexual orientation is a suspect class is closely interwoven with the court’s extended discussion of how the challenged exclusion offends both the fundamental right to marriage and equal protection. The clearest evidence for these interconnections appears in a general discussion that precedes the court’s more thorough consideration of these two constitutional issues. Noting that the right to marry and establish a family is fundamental, the court states that a “core element” of that right entails according the family relationships of gay and lesbian couples “dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of ‘marriage’ exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.”59
Note the close correlation between the quoted language and the second requirement for suspect class status—that the characteristic defining the class is “associated with a stigma of inferiority and second-class citizenship.” The equal protection/due process/strict scrutiny circle the California Supreme Court has created might be phrased as follows:
Since marriage and associated family relationships are fundamental rights, excluding same-sex couples from marriage not only establishes legal inequality, but also marks the excluded couples for second-class status and a loss of dignity. This subordination is a clear example of the legal and social disabilities under which gays and lesbian labor, and thus supports heightened scrutiny of the challenged law.
Shortly after In Re Marriage Cases, the Connecticut Supreme Court became the second state high court to find—again in a marriage equality case—that discrimination grounded in sexual orientation deserved heightened scrutiny. Kerrigan v. Commissioner of Public Health60 is a direct descendant of the California case. By a similarly divided court, the Connecticut Supreme Court followed California’s lead in using a heightened equal protection standard to analyze state law that permitted same-sex couples to enter into a civil union, but not to marry. Although Kerrigan relies on In Re Marriage Cases in part, the result is not merely additive, because the Connecticut court made more explicit the connection between the new standard it adopted and the inequality created by the then-existing civil union. Thus, the court’s opinion deserves inspection.
First, although the Kerrigan court looked at the same factors as the California court in deciding that distinctions based on sexual orientation should be subject to heightened scrutiny, Kerrigan chose intermediate scrutiny, rather than the strict scrutiny standard adopted in California.61 In both states, the courts followed their own precedent for analyzing sex-based classifications, which may be most closely analogous case. As noted earlier, in these cases, intermediate scrutiny is typically used. But, as Justice George noted in In re Marriage Cases, the California Supreme Court, unlike the U.S. Supreme Court, does not use intermediate scrutiny.62 Given the choice, then, between strict scrutiny and the rational basis test, application of the “suspect class” factors inexorably led the California court to the higher of the two standards. Connecticut, by contrast, follows the prevailing three-tier approach. The Kerrigan court acknowledged that sexual orientation might be a suspect class, but opted for the “quasi-suspect” class designation that triggers intermediate scrutiny. That standard requires that the statutory classification “be substantially related to an important governmental objective.”63
A second, and crucial, point of interest on Kerrigan is that the court was clear about the connection between civil union status and its conclusion that sexual orientation classifications need heightened scrutiny. At the conclusion of the court’s exhaustive analysis of the equal protection standard to apply, the court supplemented the central requirements for quasi-suspect class status by looking to economic and sociological considerations (which are factors relevant to “suspect class” status under Connecticut state law precedent).64