The U.S. Supreme Court ruling overturning bans on same-sex marriage has been heralded as a milestone decision in favor of gay rights, and legal experts say the decision — even though it makes no mention of animus or level of scrutiny — could be used by LGBT advocates to their advantage in future litigation.
The 5-4 decision written by U.S. Associate Justice Anthony Kennedy, who’s now drafted four major cases in favor of gay rights while on the Supreme Court, relies heavily on case law finding a fundamental right to marry and equal protection for gay people, converging those two principles to find a constitutional right under the 14th Amendment for same-sex couples to wed across the country.
“It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge certain precepts of equality,” Kennedy writes. “Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and barred from exercising a fundamental right.”
Nan Hunter, a lesbian law professor at Georgetown University, said the determinations on the right to marry in Obergefell v. Hodges may not be extended elsewhere, but that’s not the case for the equal protection reasoning.
“I think the most important aspect of this decision for other cases is that Justice Kennedy held that excluding same-sex couples from marriage violated equal protection as well as the right to marry,” Hunter said. “The right to marry, now that it is secured, is not going to be relevant in most future litigation, but the fact that there was an equal protection violation as well has potentially much broader applicability.”
Hunter adds the applicability could come in any case involving “pointless gestures” of government action that exclude people because of their sexual orientation, such as exclusion from adoption laws or states treating married same-sex and different-sex couples differently for the purposes of benefits.
Paul Smith, an attorney at the D.C.-based law firm Jenner & Block who successfully argued Lawrence v. Texas in 2003, said in the wake of the decision, the government won’t be able to discriminate against someone based on sexual orientation.
“That’s going to be impossible,” Smith said. “If they have to marry you, they can’t very well refuse to hire you or fire you or whatever else they might try to do. That game is over.”
But nowhere in the decision does Kennedy talk about the marriage bans being initiated as a result of animus, which he said were the motivation for anti-gay laws in his 1996 decision in Romer v. Evans and his 2013 decision against the Defense of Marriage Act. To be fair, animus also didn’t come up in the legal reasoning in Kennedy’s 2003 decision against state sodomy bans in Lawrence v. Texas.
Invoking animus in the logic for striking down bans on same-sex marriage could have been used as precedent in litigation against other anti-gay laws if that’s seen as the only motivation to have such measures. Still, legal experts say that animus reasoning isn’t needed or necessarily applicable in the marriage cases.
Hunter said Kennedy may have declined to invoke animus because marriage laws stem from different periods.
“Some were amended to specifically exclude same-sex couples and there may be other marriage laws that have been in effect for a couple of centuries,” Hunter said. “So I think if a law is in the latter category, it’s clear it wasn’t enacted in animus toward people based on sexual orientation, so that might have been part of the thinking there.”
Doug NeJaime, professor of law at the Williams Institute, University of California, Los Angeles, said he thinks the marriage ruling is more helpful for gay rights in other contexts without reliance on animus.
“A lot of the battles going forward are not going to be as clear-cut as the right to marry or the right to have sex,” NeJaime said. “And so, I think it’s actually really helpful to have a holding that isn’t about animus, but instead is about the actual effect that a law has on LGBT people.”
Moreover, Kennedy doesn’t say what level of scrutiny he’s using in the Obergefell decision, declining to explicitly apply heightened scrutiny, or a greater assumption a law is unconstitutional. That’s unlike the position of the Obama administration, which has said laws related to sexual orientation — including DOMA and state bans on same-sex marriage — are unconstitutional because they should be subjected to heightened scrutiny.
But Kennedy has never invoked heightened scrutiny in each of his four major gay rights cases and nonetheless found a way to reach a decision favorable to plaintiffs challenging anti-gay laws.
Hunter said Kennedy doesn’t seem to like standards of scrutiny when it comes to LGBT issues because he’s “never gone down that path.”
“I think many of us have just given up hope he will,” Hunter said. “I think as long as Justice Kennedy is writing an opinion it’s going to be a long shot that there will be any articulation of standard. I think he’s moving in a different direction. I think he has a different philosophy. It’s hard to characterize because he doesn’t really pin it down, but I think he’s dealing broad concepts of the meaning behind the protection for liberty and equality, and he doesn’t like to use particular standards.”
Smith said given the option, he would have rather seen Kennedy invoke heightened scrutiny for the next LGBT rights case before the courts.
“I would have preferred them to do the traditional heightened scrutiny protection analysis because that would have helped us say maybe on the next time when we have to decide whether or not under the Religious Freedom Restoration Act people have a right to discriminate in the event there was ever a federal ENDA,” Smith said.
But Smith added he isn’t convinced that’s necessary because he doesn’t see the lack of heightened scrutiny having “any immediate impact on the way” Kennedy reached the decision in Obergefell.
The dissents in the case are noteworthy because of their sheer number. Each of the four dissenting justices wrote their own explanation for why the majority is wrong in affording marriage rights to same-sex couples.
Chief Justice John Roberts said “policy arguments for extending marriage to same-sex couples may be compelling,” but in the end the U.S. Constitution doesn’t afford them that right. Notably, Roberts doesn’t join any of the other three dissenters in their positions, even though others joined his.
NeJaime said even though Roberts dissented, his tone “wasn’t particularly harsh” toward same-sex couples, even when harsh about the majority opinion.
“It was pretty clear that he wanted to distance himself from the fact that he was making his own judgment about same-sex marriage,” NeJaime said.
The other dissents are different in tone. U.S. Associate Justice Antonin Scalia denigrates the idea that intimacy and spirituality are freedoms and decries what he calls the judiciary taking “from the People a question properly left to them.” U.S. Associate Justice Clarence Thomas devotes a significant part of his dissent to the vulnerability of religious liberty in this country. U.S. Associate Justice Samuel Alito basically lifts from his dissent in the DOMA decision, but expresses concern about procreation and opposite-sex couples not marrying because same-sex couples can.
Hunter said the dissents are noteworthy because of the “extent to which they disagree with each other.”
“Of course, it was 5-4 decision, but in some philosophical sense, it was really a 5-1-2-1 decision, or even a 5-1-1-1-1 decision because each of the four dissenters wrote, and justices don’t write unless they are writing to say something that isn’t said by somebody else,” Hunter said. “So the debate that was visible in the opinion, there were two debates: One was between the majority and the dissent, but the other was among the dissenters themselves.”
No one is sure what LGBT-related case will be next to reach the Supreme Court, although observers predict the marriage case won’t be the final word on the issue. The next litigation could be an assertion from a federal contractor that it should be exempt from President Obama’s executive order against anti-LGBT workplace discrimination because of religious beliefs.
Another option could be a development in a state that for the first time has same-sex marriage as a result of the Obergefell decision to the consternation of a state official. Thomas’ concern in his dissent over court action harming religious liberty may best predict the next LGBT rights case to reach the court.
A county clerk required to distribute a marriage license to a same-sex couple could sue on the basis of a religious objection, or by the same token a same-sex couple denied a marriage license by such a clerk could sue to assert their right to receive a marriage license.
Whatever the case, NeJaime said the “pretty robust language about liberty and equality” in the Obergefell decision could be translated to the next litigation.
“You could think you have five justices on the court who are thinking about same-sex couples as exercising the same fundamental rights as others,” NeJaime said. “There’s also a fundamental right to parent, there’s a fundamental right to procreate, and so, it opens up potential possibilities to make similar kinds of arguments in other contexts.”