This week the Supreme Court of the United States will hear oral argument in what will no doubt be considered one of the most important civil rights cases of our generation. In Obergefell v Hodges (there are in fact four conjoined cases) the Supreme Court confronts the constitutional issue it avoided in Perry and Windsor – does the Fourteenth amendment require a state to license a marriage between two people of the same sex? The case has attracted a record number of amicus briefs – a staggering 147, which eclipses the 80 briefs submitted in Perry and the 96 submitted in Windsor. This is not surprising given the fundamental issue the Justices will be considering. What exactly are the petitioners arguing, however?
Central to the petitioners’ case is the proposition that they are not asking the Justices to find a new constitutional right to same-sex marriage. This decision is no doubt a strategic one, as an argument such as this would be unlikely to attract the crucial swing-vote of Justice Kennedy. The petitioners instead argue that the right to marry is constitutionally protected and, echoing the path-marking case of Loving v Virginia, excluding same-sex couples from access to this institution violates the equal protection clause of the Fourteenth Amendment. The petitioners also rely upon a theme that has become a feature of the Supreme Court’s recent LGBT jurisprudence, namely that animus towards gays and lesbians is not a sufficient reason for depriving them of the benefits afforded other citizens. Echoing Windsor the petitioners also seek to present the human face of what could otherwise become an overly legalistic discourse divorced from its real world implications. For example, Mr Obergefell and his husband, John Arthur, were only married for three months before the latter died of ALS, a form of motor neuron disease. Mr Obergefell was listed as his husband’s surviving spouse on his death certificate. Should he not prevail before the Supreme Court the state of Ohio will reissue a new death certificate with his name removed.
I have long bemoaned the fact the Supreme Court has failed to articulate a test that laws and other state action directed towards LGBT people must be subjected to. This case presents the Supreme Court with the opportunity to articulate whether gays and lesbians constitute a suspect class, which would ensure that laws impacting upon LGBT people must satisfy a higher threshold in order to pass constitutional muster. The petitioners’ merits briefs do not explicitly settle on a specific constitutional test, but do suggest that the standard ought to be higher than mere rational basis review. Such uncertainty is understandable, given that the Supreme Court’s jurisprudence on how to determine whether a societal group ought to be afforded greater constitutional protection is murky to say the least. The petitioners also argue that states’ attempts to justify excluding same-sex couples from marriage cannot even satisfy such a low-level of scrutiny as rational basis review. This juxtaposition reveals a tension that has become evident in the same-sex marriage cases. If excluding same-sex couples from marriage is wholly irrational, then why lend the prohibitions credence by arguing that gays and lesbians need to be afforded a greater level of constitutional protection to justify courts striking them down? Those who seek to advance the rights of gays and lesbians in the United States need to decide conclusively whether to make the case for suspect categorization should the Supreme Court fail to take this opportunity to resolve the issue.
Is there any indication as to the outcome of the case? Justices Thomas and Scalia seem to think so. In February a majority of the Justices denied an application to stay a decision in Alabama permitting the commencement of same-sex marriages. In a dissenting opinion Justice Thomas, joined by Justice Scalia, bemoaned the fact the court had denied the stay given that the constitutionality of same-sex marriage was before the court. He stated that: ‘This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.’
Whether Justice Thomas was correct remains to be seen. What is beyond doubt is that Obergefell v Hodges represents a landmark moment in the path towards LGBT equality.