RE: Same Sex Marriage


 On April 28, 2015, the Supreme Court of the United States of America heard oral arguments in Obergefell v. Hodges.  The questions presented were:

1.    Whether the 14th Amendment prohibits a ban on same-sex marriage in any State; and

2.    Whether the 14th Amendment requires a state to recognize a marriage between two people of the same sex when they were lawfully married out of state. 

The following discussion focuses on the first question. 

General Information on the Equal Protection Clause

Under the 14th Amendment’s “equal protection” clause, the State cannot take action that would result in an unequal application of the law to one group of people when compared to a similarly situated group of people.  There are three different levels of scrutiny that the courts used to determine whether a law violates this principle. 

Strict Scrutiny

For matters of race, ethnicity, and similar categories, a strict scrutiny standard is used.  In that instance, the court should heavily scrutinize the law to test its validity and the government must present a “compelling government interest” for the law and it must be “narrowly tailored” to meet that interest. 

Intermediate Scrutiny

Intermediate scrutiny is reserved for matters involving gender and legitimacy.  It requires a heightened level of scrutiny, but less so than strict scrutiny. 

Rational Basis

The lowest level of scrutiny is the rational basis test.   This is the most common level of scrutiny and is applied in all situations where a suspect class is not involved.   In the case of rational basis, the State can have almost any explanation, as long as it isn’t so crazy that it is completely irrational (i.e. we just don’t like homosexuals).  It also does not matter that the reason given was not the original reason for adopting the law (i.e. even an ad hoc reason will be accepted by the courts so long as it is “rational”).

The Supreme Court has yet to recognize homosexuals as a suspect class, even though a blind man could see that there is a high risk of intentional discrimination.  As a result, the State can come up with any rational basis for discriminating against homosexual individuals.  That tactic didn’t work, however, in Lawrence v. Texas, leading some to believe that the Court will say they are applying the rational basis test but in reality will apply a higher level of scrutiny.  The current case also involves the fundamental right to marry.

Arguments during Oral Argument:

Regulating Procreation

 The State’s main point was that they want to maintain the sanctity of marriage, because allowing homosexuals who cannot procreate to marry would be to decouple the idea of marrying and having children, leading to an increase in illegitimate children.  As the justices pointed out, this position raises issues as to married couples who cannot procreate or who choose not to procreate.  Pursuant to the State’s argument, we would be forced to ask whether a sterile or impotent man should be prohibited from marrying.  In New York, impotence is grounds for a voidable marriage, but it is not a flat out ban and is only contemplated where the other party has been misled. 

The State’s position also ignores that methods of procreation available to heterosexual couples are equally available to homosexual couples.  For example, older married couples use in-vitro methods to get pregnant; some women freeze their eggs to be used at a later time; some couples use surrogate mothers; some couples have children who are conceived posthumously; and some couples adopt.   Therefore, in the case of heterosexual couples who cannot procreate naturally, or who choose not to, there is no difference between them and their homosexual counterparts.

It will be interesting to see if the State shot itself in the proverbial foot with this strategy. 

The Wait and See Approach

 Another one of the State’s lines was that they just want time to “wait and see.”  This is a tempting argument, which is probably why it has been resurrected from its use in the slavery and “separate but equal” rhetoric archives.  The idea is that you can’t force feed policy to society, because they will only react to it.  Instead, the right thing to do is wait until society makes up its mind to adopt the policy through the democratic process. 

Just as it was then, it remains that when it comes to fundamental rights wait and see is not good enough.  There is no good reason for individuals to continue to suffer while “we wait and see.”  It’s true that Brown vs. Board of education did not deliver the homerun everyone thought it would, but that is not necessarily because the decision was made too soon.  The Court also made it very easy for States to avoid the ruling in Brown II when it handed down the terribly ambiguous, “all deliberate speed” language that gave the school districts more than enough ammunition to fight it for years and years to come.  

Brown also enabled the world to see how destructive racism was.  The image of a white woman’s face, contorted into a mask of unadulterated hatred and disgust as a little black girl walked into an all-white school, became the poster child of the irrationality of racism and made people very sensitive to being called racists.  It changed the way we spoke about race, at least in public.

While we are far from living in a post-racial utopia, it is no longer okay to openly discriminate against people based on race because of cases like Brown v. Board of Education.  For the same reason, we need cases like this one to make it clear that it is not okay to continue to discriminate against homosexuals.    

The Long History of Marriage

The definition of marriage was never as simple as the union between a man and a woman (at least not in our legal history).  If you look up marriage in Black’s Legal Dictionary, you will find several definitions of marriage- many of them coming from the common law.

It is also worth mentioning that under the common law, the definition of rape did not include nonconsensual sex between a husband and his wife.  Yet modern views have changed, despite that long history.

Further, as demonstrated above, with today’s technology and new norms it seems silly to say that gay marriage would infringe on “traditional” notions of marriage.

Other Arguments

The Slippery Slope

As for distinguishing polygamous marriages from same sex marriages, there is a clearer reason why the state would have an interest in prohibiting those.  If there were a situation where one of the spouses died and none of the financial affairs were in order, thousands of court hours could be spent trying decided which surviving spouse was entitled to the property over others.  However, even that seems a bit of a stretch, since intestacy laws divide up property among multiple interested parties all the time.  An additional spouse or spouses would merely be an additional interested party to consider. 

Religious Objections

There are many religious people who object to gay marriage, because they say it would tarnish the sanctity of marriage.  To that I say:

(1)  Our Constitution commands that each individual be granted the freedom of religion and to force others to adopt the definition of marriage as set out in a specific religion would be to violate that sacred principle; and

(2)  If the church is not going to object to Elvises marrying people in Las Vegas as a transaction that violates the sanctity of marriage, then I don’t see why it should start now.


Therefore, I conclude the State’s sole purpose in denying homosexual couples the right to marry is that of pure animus; that gay and lesbian couples are being denied equal protection of the law; that all State bans on homosexual marriage are unconstitutional; and that, as a result, all State bans on homosexual marriage are void. 

I hope the Supreme Court will agree with me.