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.

Brendon K. Taga (L) and Jesse Pageat, the second couple to receive a same-sex marriage license in Washington state.
Brendon K. Taga and Jesse Pageat, the second couple to receive a same-sex marriage license in Washington state.

Photo by David Ryder/Getty Images.

Our long national waiting game is over: Last week the Supreme Court decided to hear both the Proposition 8 case out of California, and one of the Defense of Marriage Act cases. Although marriage-equality advocates have reason to be cautiously optimistic about the possible outcomes in both cases, recent political successes by proponents of gay marriage could—paradoxically—make success harder than it might have been even a few months ago.

That political success, of course, was the clean sweep for same-sex marriage on Election Day. That’s the good news. Opponents to marriage equality took a comprehensive thumping last month. In Minnesota, the effort to enshrine discrimination in the state constitution failed. And in Washington, Maryland, and Maine, voters gave the green light to same-sex marriages.

So what’s the bad news? By running the table in four states—after 32 consecutive losses at the ballot box—the lesbian, gay, bisexual, and transgender rights movement weakened its argument that it lacks political power. And that might matter for how the Supreme Court decides whether DOMA or Prop 8 violate same-sex couples’ right to equal protection under the law. That’s because a minority’s access to political power is one of the factors the court uses in deciding how strictly to evaluate a challenged law.

The DOMA case to be reviewed is Windsor v. United States, a decision from the federal court of appeals for the 2nd Circuit. The case challenges Section 3 of the law, which says state-recognized, same-sex marriages don’t count for federal purposes. In Edith Windsor’s case, this was a very big deal: Although married under New York law, she had to pay some $363,000 in federal estate taxes that her counterpart in an opposite-sex marriage would have been exempt from paying.

So why did the Supreme Court choose this case instead of several other candidates? All of them raised the issue of whether DOMA offends the equal-protection clause of the U.S. Constitution by treating the marriages of same-sex couples differently from those of opposite-sex couples. But Windsor is the only appellate case that constructed a high legal hurdle for the government to clear in defending the law.

In brief, most equal-protection cases use a rational basis test to decide whether a law is constitutional. Typically, this means that if any plausible justification can be advanced in favor of the challenged legislation, the court will bless it. But if the court finds that the law targets a “suspect class,” then the scrutiny of that law is ratcheted up. Classifications based on characteristics including race, gender, religion, or national affiliation are judged by “heightened scrutiny.” And they almost always fail.

But until Windsor, no federal appellate court had held that laws that discriminate against gays and lesbians should be judged against this stricter standard.

To get there, the court looked at the factors that the Supreme Court uses to determine whether a new group is entitled to membership in the “heightened scrutiny” club, including whether the group is “politically powerless.” The 2nd Circuit panel argued that “homosexuals” still can’t “protect themselves from discrimination at the hands of the political process,” and then applied this tougher standard. Few laws make it out of this analysis alive, and DOMA was no exception. The court quickly obliterated the possible justifications—tradition, the need to have a uniform definition of marriage, and encouraging responsible procreation—and Section 3 was dust.

That’s where the potential downside of the Election Day wins becomes relevant. Windsor was written before these victories. Does the court’s conclusion survive these events?

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.

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.  

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