Inscribed in marble on the face of the United States Supreme Court are the words: “Equal Justice Under Law.” Although the legal meaning of this promise evolves over time, the idea of equal protection has long been a cornerstone of American constitutional jurisprudence. The 14th Amendment’s Equal Protection Clause has ushered in important advances by providing legal recognition for interracial marriage and women’s rights.
Today, proponents of same-sex marriage seek judicial relief under the 14th Amendment after several states have passed constitutional amendments restricting marriage to a man and a woman. Despite the disparate rulings over the past several years, the legal community may reach a turning point this year. On April 28, the Supreme Court will hear oral argument in Obergefell v. Hodges to determine whether America’s guarantee of “Equal Justice Under Law” requires states to recognize same-sex marriage.
The Court agreed to hear this case after several different Federal Circuit Courts issued conflicting opinions. The Fourth, Seventh, Ninth, and Tenth Circuit Courts all declared state bans on same-sex marriage unconstitutional. The Sixth Circuit’s ruling to uphold the bans created a split in the courts, giving the Supreme Court a reason to weigh in. The Sixth Circuit adopted a very deferential stance in reaching its decision. Essentially, they held that the courts are not responsible for second-guessing the decisions made by the people and legislatures of the states.
Judicial review under the Equal Protection Clause can be divided into three separate categories: Strict scrutiny, intermediate scrutiny, and rational basis review. Strict scrutiny is the most stringent level of review reserved for statutes impacting those groups the Court deems protected classes. Statutes burdening these groups have a high burden they must meet in order to survive judicial review. Rational basis review, on the other hand, is the least stringent standard. Statutes undergoing this level of review merely need to show that there are some reasonable justifications behind the law in order for it to survive.
The Sixth Circuit’s reasoning differed from the other circuit courts in the level of judicial scrutiny it applied to the state constitutional amendments. While other circuits accorded same-sex couples heightened judicial scrutiny, the Sixth Circuit used the most deferential rational basis review and found several reasonable justifications for the amendments.
The Sixth Circuit’s decision has been appealed, and the Supreme Court will review its decision in Obergefell. The states argue that the Court should permit the states to exercise the right to self-government, which includes the ability to define marriage. Same-sex couples argue that they are being denied equal access to entering into the institution of marriage, which is something that they cannot be deprived of no matter how many people vote to strip them of that ability.
Ultimately, the decision in Obergefell will turn upon the level of judicial scrutiny the Court decides to apply to the state constitutional amendments. Will the Court be deferential to the will of the people as expressed through the state constitutional amendments, or will it err on the side of protecting the rights and well-being of same-sex couples? Given the current ideological composition of the Court, the decision will likely come down to Justice Kennedy. I predict, consistent with his majority opinion in United States v. Windsor, he will strike down the bans and provide judicial protection for same-sex marriages under the Equal Protection Clause.
