Why the Success of Gay Marriage Advocates May Be Bad for Gay Marriage

The law, lawyers, and the court.
Dec. 10 2012 7:26 PM

Have Gay Marriage Advocates Been Too Successful?

Why their recent victories at the ballot box may hurt the chances for marriage equality before the Supreme Court.

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More to the point, will the Supreme Court—which until now has evaded this issue—buy the 2nd Circuit’s view? It’s now undeniable that the LGBT rights movement is suddenly experiencing success in the very same arena of legal discrimination that DOMA and Prop 8 cover. These thumping wins ratify the growing sense that the LGBT rights movement has come of age and that the political process is working.

At least one court thinks so. In a case decided less than two weeks ago, a Nevada federal judge expressed his disagreement with Windsor’s heightened scrutiny approach and pointedly cited the four recent gay marriage victories in support of his conclusion: “It simply cannot be seriously maintained, in light of these and other recent democratic victories, that homosexuals do not have the ability to protect themselves from discrimination through democratic processes ….”

So the easier path to victory might be blocked. Still, the court may well strike down DOMA and Prop 8 anyway, because the laws don’t even have rational bases.

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As for DOMA, consider one of the federal cases that the court didn’t take. In Gill v. OPM, the judges demolished each of Congress’ stated justifications for the law. First, DOMA doesn’t support “child-rearing in the context of stable marriage,” because it does nothing to stop same-sex marriages—it just disadvantages them at the federal level. And the argument that the law upholds traditional moral values fared no better. The court relied on the Supreme Court’s decision in Lawrence v. Texas, which held that “tradition” wasn’t a good enough reason to uphold laws that disadvantage a particular group. DOMA is such a law.

In holding that Prop 8 violates same-sex couples’ right to equal protection, the 9th Circuit leaned more heavily on another Supreme Court case, Romer v. Evans. There, the justices struck down a Colorado law that denied gays and lesbians all legal protection against discrimination, finding that the law created a kind of caste system that wasn’t justified by any legitimate state interest. (Translation: It had no rational basis.) The 9th Circuit found that Prop 8 was also motivated at least in part by a similar impulse: to “strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships,” thereby consigning them to a “disfavored class” status.

Justice Kennedy wrote both Romer and Lawrence, and he’s the almost certain swing vote in the cases the court will hear later this term. (Indeed, the 9th Circuit opinion seems crafted to win the Kennedy vote.) And while I would be breathing more freely if I thought it likely that the court would follow Windsor and apply a higher standard of review, both Romer and Lawrence show that even the rational basis test has some bite.  I expect the court to take more than a chunk out of these laws. But, in a odd way, it would have been a better bet before the gay rights movement appeared to have the wind at its back.  

John Culhane is professor of law and co-director of the Family Health Law and Policy Institute at Widener Law Delaware.

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