It has been almost a year since the Supreme Court of the United States delivered judgment in Windsor v United States and in the intervening twelve months there have been an increasing number of cases considering the constitutionality of prohibitions on same-sex marriage.
As of June 2014, same-sex couples can lawfully marry in nineteen states and in the District of Columbia. Thirty-one states, however, still prohibit same-sex marriage, either by law or constitutional amendment. While it is important to appreciate that the increasing prevalence of same-sex marriage is not due solely to success in court, it is in the courtroom where advocates for marriage equality are having the most success. There are currently 30 same-sex marriage cases pending before federal courts and another 10 before state courts. The Supreme Court’s decision in Windsor has acted as a catalyst, and perhaps explains why advocates of same-sex marriage have had such extraordinary success in court since July 2013. It appears that lower courts, at both state and federal level, have interpreted Windsor as a decision in which the Justiceshave given their imprimatur to same-sex marriage.
When Windsor was decided I welcomed the outcome but lamented the judgment’s questionable analytical quality, in particular the failure to address squarely the issue of whether LGBT people ought to qualify for heightened protection under the Equal Protection Clause of the Fourteenth Amendment. Should LGBT people be recognized as a suspect or quasi-suspect class? It could be argued that the tsunami of successful same-sex marriage cases undermines the validity of my concerns. An analysis of some of these cases, however, demonstrates the prescience of these concerns and indicates what the next issue for the Supreme Court to consider in relation to LGBT equality will be.
In Kitchen v Herbert the court held that Utah’s prohibition on same-sex marriage was subject to heightened scrutiny on the basis that it constituted sex discrimination, but that it ultimately failed even the most deferential standard of review. The court was unable to consider whether LBGT people constitute a quasi-suspect class as it was bound by an earlier precedent holding that they do not. Interestingly, in Bishop v US the court rejected the argument that prohibitions on same-marriage constitute sex discrimination. In DeLeon v Perry, the District Court found the argument that LGBT people constitute a quasi-suspect class ‘compelling’ but invalidated Texas’ prohibition on same-sex marriage on the basis that it failed to satisfy even rational basis review. In contrast, in Windsor v US and Massachusetts v Dept. of Health and Human Services, two different federal courts held that LGBT people constitute a quasi-suspect class and therefore ought to be accorded the protection provided by a heightened standard of scrutiny.
More recently, in a case concerning whether LGBT people could be excluded from juries because of their sexual orientation, the Ninth Circuit Court of Appeals held in SmithKline Beecham v Abbott Laboratories that the Supreme Court in Windsor in fact established a standard of review for classifications based on sexual orientation higher than rational basis review. The court held that, “there can no longer be any question that gays and lesbians are no longer a group or class of individuals normally subject to ‘rational basis’ review.”
In that case the court purported to look at the substance of Justice Kennedy’s opinion rather than on simply what he said. It is submitted that the next issue for the Supreme Court to grapple with in relation to LGBT equality will be whether sexual orientation is a suspect classification. Given the divergence amongst lower courts, resolution of this issue ought to be considered a matter of urgency. In wading into this controversy the Supreme Court will have to face the difficult truth that much of its equality jurisprudence concerning standards of review lacks coherence and analytical clarity.
Rather than simply alluding to the status of LGBT people as a quasi-suspect class, the uncertainty currently prevailing in the lower courts demonstrates that the Supreme Court must state this explicitly. Recognition of sexual orientation as a suspect class will be essential to remedying the discrimination that LGBT people continue to face in the United States. Whether the Supreme Court is ready to grapple with this intractable controversy remains to be seen.