Constitution Check: Has the Supreme Court already settled the fate of gay marriage bans?

National Constitution Center

By Lyle Denniston

Lyle Denniston says the question of the correct constitutional standard about same-sex marriage is going to reach the Supreme Court in a way that can no longer be avoided.


Constitution Check: Has the Supreme Court already settled the fate of gay marriage bans?

The Supreme Court’s decision in U.S. v. Windsor “requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purpose and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status.  In short, Windsor requires heightened scrutiny.  Our earlier cases applying rational basis review to classifications based on sexual orientation cannot be reconciled with Windsor.”

 – Excerpt from a ruling January 21 by the Ninth U.S. Circuit Court of Appeals, based in San Francisco, declaring unconstitutional the exclusion of individuals from serving on a jury because of their sexual orientation.

“The majority [in the Windsor decision] arms well every challenger to a state law restricting marriage to its traditional definition.”

 – Supreme Court Justice Antonin Scalia, in his dissenting opinion last June in the Windsor case striking down the federal Defense of Marriage Act’s ban on federal marital benefits for already married same-sex couples.


In a process that began with a famous footnote in a Supreme Court decision in 1938, the court has gradually created additional constitutional protections for the minorities in America that have traditionally faced discrimination.  The result has been a three-level mode of analysis that, with each step upward, adds to the constitutional protection for minority rights.

If a law is judged under the most forgiving standard (“rational basis”), it can be upheld if there is any conceivable reason to justify it – even if the legislature did not have that in mind when it passed the law.

One step up from that, there is what lawyers and judges call “heightened scrutiny” – a law is valid under the Constitution if it serves an important public purpose, and is closely related to that purpose.  Most importantly, that is the standard for judging discrimination based on gender, and it has been vitally important to the advance of women’s rights.

The top step, now mainly used to judge race discrimination, is “strict scrutiny” and it is very difficult for a law to meet that test, because it dooms a law that does not have a compelling purpose and is not “narrowly tailored” to serve that purpose.

Throughout the modern movement to achieve equality for homosexuals, beginning in the 1960s, courts have routinely judged claims of discrimination against gays and lesbians by the “rational basis” test.  Given the ease of meeting that test, many gay and lesbian quality claims have failed.  Thus, lawyers for gays and lesbians have been hoping, one day, to persuade courts to judge laws that single them out for less favorable treatment by the “heightened scrutiny” test.

Last year, that aspiration was fulfilled for the first time in a federal appeals court when the Second U.S. Circuit Court of Appeals, based in New York City, used that more demanding standard in striking down the Defense of Marriage Act provision that the Supreme Court found unconstitutional in last June’s decision in U.S. v. Windsor.

That Court of Appeals decision was a major breakthrough for gay and lesbian equality.  In fact, the dissenting judge in that case, Circuit Judge Chester J. Straub, wrote that the constitutional test the majority had adopted – if adopted by the Supreme Court – “would likely doom” every state law that forbids same-sex marriages.  (Judge Straub also noted that every other federal appeals court continued to use only the “rational basis” test in gay and lesbian discrimination cases.)

One curious thing about the Supreme Court’s Windsor decision, though, was that the Justices once again declined to spell out the constitutional test they would use for judging laws that targeted homosexuals.  True, they struck down the DOMA benefit ban for legally married same-sex couples, and they had previously struck down a number of other laws after finding that they discriminated against homosexuals, but they did so each time without spelling out a definite standard.

Despite that, a federal appeals court has now ruled for the first time that the proper way to read the Supreme Court’s decision in the Windsor case is that it, in fact, embraces a “heightened scrutiny” standard for laws denying equal status to homosexuals.  That conclusion by a three-judge panel of the Ninth U.S. Circuit Court of Appeals will be binding within that Circuit Court in all gay rights cases from here on, unless the full bench of all the Circuit Court judges vote to reconsider it.

If the three-judge panel’s interpretation of Windsor remains binding in that Circuit Court’s work, that is the standard that will govern a coming decision there on a case challenging a state’s ban on same-sex marriage.  That case, furthest along among such challenges across the country, involves a Nevada ban.

Another same-sex marriage case that is moving on an expedited schedule is the test of Utah’s ban, now under review in the Tenth U.S. Circuit Court of Appeals, based in Denver.  Up to this point, that Circuit Court has held to the view that gay rights cases are to be analyzed under the “rational basis” test.  Lawyers for the same-sex couples in that case very likely will now press the argument that the Tenth Circuit Court should follow the Ninth Circuit Court’s interpretation of the meaning of U.S. v. Windsor.

Sooner or later, and very likely sooner, the question of the correct constitutional standard is going to reach the Supreme Court in a way that can no longer be avoided.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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