This week, the Supreme Court will hear oral arguments in two separate cases concerning same-sex marriage. The first case, Hollingsworth v. Perry (Prop 8), challenges the constitutionality of California’s voter-approved gay marriage ban. The second case, United States v. Windsor, takes on the definition of marriage in the federal Defense of Marriage Act (DOMA), which defines marriage as the union of a man and woman and denies gay couples more than 1,000 benefits ranging from inheritance taxes to survivor benefits to immigration rights. The court will weigh whether DOMA among other things violates provisions of the Tenth and Fourteenth Amendments.
Gay rights advocates are certain that the court will rule in their favor. The question is whether the decision will be 6-3 or 7-2 and that is because no one can be certain how Justice Clarence Thomas will rule on the landmark cases. If history is our guide, then Thomas will not ask any questions during the oral arguments. His past rulings would seem to indicate that he will not rule in favor of same sex marriage, however if he can be persuaded that in this instance gays and lesbians are being denied an equal protection for no legitimate, independent, and legislative cause, then DOMA will fall like the Berlin Wall. If there ever was a time for Thomas to break from the pack, now is that time.
The four liberal justices, Kagan, Sotomayor, Ginsburg, and Breyer are certain to rule in favor of same-sex marriage. Justice Kennedy has been a friend to gay and lesbian causes. He wrote the majority opinion in Lawrence v. Texas, which outlawed sodomy laws. Chief Justice Roberts will continue the trend he began when he narrowly ruled in favor of The Affordable Care Act and stay on the right side of history. Justice Scalia will continue to let his personal disdain for homosexuality overrule his judicial duty and Justice Alito will probably follow suit.
Justice Thomas, on the other hand, is not easily persuaded by prior legal precedent and is even less concerned with aligning with the trappings of societal pressure. Thomas is a strict originalist and will only be persuaded by the application and relevance of the law to the constitution. Thomas has a history of ruling narrowly in favor of state’s rights over gay and lesbian rights. In 2003, he issued a one-page dissent against Lawrence v. Texas, upholding the anti-gay sodomy statute. In 1996, he joined Scalia’s dissent in Romer v. Evans, siding with a Colorado amendment that would have allowed discrimination based on sexual orientation. In Lawrence v. Texas, Thomas found that there was no “general right to privacy” as it related to oral and anal sex, and in Romer v. Evans, he and Scalia argued that laws prohibiting discrimination based on sexual orientation amounted to judicial activism and “Kulturkampf" (culture war).
If Thomas cannot see his way to supporting sex as a private act under the Bill of Rights and the Constitution, then there is little hope that he will see marriage as a matter of privacy. Similarly, if he found that preventing discrimination based on sexual orientation “has no foundation in American constitutional law” because it would create a protected class granted preferential treatment then he might find the same for gay and lesbian couples seeking to marry.
The Colorado Supreme Court in the case of Romer v. Evans found that the amendment was subject to “strict scrutiny” under the Equal Protection Clause. However, the Supreme Court rejected that opinion, saying that the amendment did not even pass the rational basis test. This was an important decision because Romer v. Evans led to Lawrence v. Texas, which has led to Hollingsworth v. Perry, the case currently before the Supreme Court.
The Supreme Court has not announced whether it will be applying the rational basis test or heightened/intermediate scrutiny to decide the two cases. The equal protection clause in the Fourteenth Amendment prohibits different treatment for individuals in the same situation, for example getting married. To allow the law to stand the court would have to find a rational basis for maintaining a legal distinction between same gender and heterosexual couples. The distinction would have to a rational relationship to a legitimate and legislative end. The Justice Department has asked the court to apply the heightened scrutiny test and given that Justice Ginsburg persuaded the court to adopt the standard for gender based distinctions 40 years ago, the court may be predisposed to agree. Heightened scrutiny would require proving that marriage between a man and a woman is of material importance to the national interests, that DOMA furthers that interest and that a ban on same sex marriage is important to that interest.
Heightened scrutiny has never been applied in a case involving gay rights before the Supreme Court. If heightened scrutiny is applied and the justices rule in favor of gay marriage then it would set off a domino effect throughout the country. As per the New York Times, the U.S. brief states, “This is the rare circumstance in which a faithful application of the court’s established criteria compels applying heightened scrutiny to an additional classification.”
The LGBT community meets the standard for applying heightened scrutiny. There is a history of discrimination, their sexual orientation has proven to be biologically driven, and it has impacted their ability to function openly and safely in society. The LGBT community is politically active but as we recently saw at CPAC, they remain politically vulnerable. The inability to obtain equal status under the law is proof of their political vulnerability.