By Tom Watts*
This is the third in a series of blog posts previewing some of the conceptual questions that may appear in the same-sex marriage oral arguments on Tuesday. Part I is here, and Part II is here.
In previous posts, I discussed whether same-sex marriage bans classify by sexual orientation. If they do, the next question the Supreme Court must answer is what level of scrutiny a sexual orientation classification should receive. Race classifications receive strict scrutiny, which almost always means the law in question is unconstitutional. Sex classifications receive intermediate scrutiny, which often means the law is unconstitutional. Most other classifications receive only rational basis review, which almost never means the law is unconstitutional, unless the Supreme Court determines that the law was enacted due to “animus” (here, anti-gay bias).
As a technical matter, the Supreme Court has laid out various standards — to pass strict scrutiny, a law must be narrowly tailored to a compelling government interest and must be the least restrictive means of achieving that interest, whereas to pass rational basis review, the law need only be rationally related to a legitimate government interest — but because the Supreme Court has provided only cursory explanations of the general principles of this analysis, it is hard to explain precisely what this means. How do we know whether something is a legitimate (or compelling) government interest? Are there legitimate government interests that are not compelling government interests? The Court’s decisions do not answer these questions clearly. Indeed, one of the most prominent lower-court judges, Judge Posner of the Seventh Circuit, showed some impatience with the sheer conceptual confusion around these standards, and the Supreme Court has the option of trying to clarify, although no one on the Court has indicated a willingness to do so.
It is likely that the marriage bans will be struck down under any legal standard, but if the Supreme Court decides that sexual orientation classifications deserve intermediate scrutiny, that decision could reverberate in LGBT rights cases throughout the country. Any anti-gay law in any state would suddenly be vulnerable to serious challenge. On the other hand, if sexual orientation classifications receive only rational basis review, the Supreme Court is likely to find that the marriage bans were enacted with animus. Consequently, plaintiffs challenging anti-gay laws would have to find evidence of some kind of anti-gay bias in the enactment of the laws in order to get them struck down. It is likely that more laws would survive under this framework than under intermediate scrutiny.
How will the Supreme Court decide the level of scrutiny? There are five factors that sometimes arise, which are phrased in different ways (and not all are always invoked). One factor is a history of discrimination against the group. A second is that the group is obvious and distinct (in legalese, “discrete and insular”): group membership can be determined at sight (discrete) and group members are in contact with each other significantly more than with non-group members (insular). A third is the political powerlessness of the group, whether because it is a demographic minority (e.g., African Americans are, and have always been, much less than half of the population of the United States) or because it is underrepresented in the halls of power (e.g., women). A fourth is often referred to as “immutability,” but because classifications by religion receive strict scrutiny and religion is mutable, it might be more accurate to describe this factor as “fundamental to identity.” A fifth is that the group’s defining traits are generally irrelevant to the group’s ability to participate in and contribute to society.
The opposing briefs argue whether gays and lesbians meet these criteria (for what it’s worth, it seems clear to me that they do), but the broader question is what the test itself consists of. A series of decisions from the late 1960’s to the mid-1970’s recognized new protected classifications that trigger heightened scrutiny (race, sex, and several others), but the Supreme Court appears to have lost its appetite for protecting new groups. It has been decades since the last classification was recognized (arguably, illegitimacy in 1977 or 1978). If the Supreme Court seriously considers protecting sexual orientation, the way different Justices phrase and discuss the factors may be telling. How immutable does the trait have to be? How do we know when a group is politically powerless? There are many questions here that the Supreme Court could answer.
Also, even if the Supreme Court doesn’t recognize sexual orientation discrimination as a type of sex discrimination, as discussed in a previous post, holding that sexual orientation classifications receive intermediate scrutiny would have nearly the same effect, because that is the level of scrutiny that sex classifications receive. The plaintiffs and the federal government have both argued for this position. It is rare for the government to support recognizing a new protected classification, so the government’s position may carry particular weight with the Court. Then again, the federal government made the same argument in Windsor, and the Court refused to bite, so the Court may duck this issue again.
If the Supreme Court does in fact recognize a new protected classification for the first time in decades (and, perhaps, clarify the legal test for protected classifications), its doing so might be the most legally significant aspect of the decision. This is worth watching closely in oral argument.
* Tom Watts is a fourth-year JD/MPP student at HLS and HKS and is the Executive Online Editor of HLPR.