Hello everyone and Congratulations to all of us for a better government but especially for our LBGTQ friends for the Court recognizing the "dignity" of your relationships.
I want to talk about an aspect of the Court's opinion that I think will have wide-ranging implications in terms of jurisprudence on same-sex issues and beyond.
There have been a lot of diaries, articles, pictures and posts both on and off Daily Kos celebrating what the Court has decided on last Friday. These posts have brought us the happy moment when couples, some after decades of waiting, have been able to celebrate their marriage, while others have shown the celebrations of people in general. Finally, other posts have looked at the language of the Court's opinion to acknowledge how sweeping the declaration of the liberty interest in Kennedy's decision was.
This post does not try to replicate or recreate any of the previous articles on Daily Kos or elsewhere. While many non-lawyers or people who are not legal afficiandos will find this post to be superfluous, I think that it hits on an extremely important issue for the LBGTQ community and its legal claims going forward. The goal of this post is to acknowledge something that is not explicit but clearly is implied in the Kennedy opinion in Obergefell: the Supreme Court made LBGTQ a protected class requiring the highest scrutiny.
Follow me below the squiggly for more:
Justice Anthony Kennedy gave two rationales for his decision in Obergefell: (1) that marriage was a fundamental right that cannot be denied to same-sex couples and (2) to deny same-sex couples the right to marry is a violation of the Equal Protection Clause of the 14th Amendment.
The first rationale has been discussed in various fora and will continue to be discussed for generations. The second reason behind this decision is the one that I think will have the largest implications though.
It is important to first acknowledge that the Court did not explicitly make the LBGTQ community a suspect class. The Court could have, but did not explicitly state that same sex couples were a suspect class deserving heightened scrutiny. BUT the Court did heavily imply that it was making the LBGTQ community a suspect class for several reasons that are described below.
To date, the Court has yet to explicitly state that the LBGTQ community are members of a protected class or suspect classification despite the long history of challenges from the LBGTQ community on Equal Protection grounds. Here, I think, it will be helpful for me to provide a brief description of what a "protected class" or a "suspect classification" is. The Supreme Court has said in a number of opinions concerning the 14th Amendment cases that laws or government practices that concern a certain group of minorities must be considered under "heightened scrutiny." The classification includes: 1) racial minorities, 2) religious minorities, 3) national origin and 4) legal aliens. A lesser scrutiny is applied to those people discriminated due to 1) sex or 2) legitimacy of birth. For further information about suspect classification, click on the link to the wikipedia page that does a decent job of explaining them.
Finally, a person who feels that he or she is being discriminated against but not due to race, religion or any of the other classifications above can sue under the 14th amendment. But the person described in the preceding sentence can only sue under "rational basis" scrutiny. Without getting any more technical than I have to, "Rational Basis" analysis makes it VERY hard for the person challenging a law as discriminatory to succeed, while the "heightened scrutiny" for suspect classifications make it easier for the person challenging the law to succeed.
The first decision that I know of related to LBGTQ claims of equality before the law is the case of Baker v. Nelson in 1972. The Court mentioned this discriminatory ruling in its opinion in Obergefell where it described the decision as one sentence summary opinion wherein the Court held that denying marriage to same-sex couples does not present a Federal Question and therefore the Court rejected the challenge by the same-sex couple. The Court in Obergefell obviously overruled that decision.
Later, a man named Michael Hardwick challenged his conviction for sodomy by the State of Georgia in 1986. The Court rejected his Equal Protection claim stating that the beliefs of the majority of Georgians regarding the morality of same-sex intimacy were “an adequate rational basis" for the law that Mr. Hardwick challenged. The Court overruled this decision in Lawrence v. Texas and then did something that is has rarely if ever done before wherein the Court said that its decision in Bowers "was 'not correct when it was decided.'"
The next case the Court heard concerning LBGTQ rights was Romer v. Evans. In this case, the Court overturned a Colorado constitutional amendment that made it illegal for cities, counties or other political subdivisions in Colorado to extend anti-discrimination legislation to the LBGTQ community. The Court ruled that due to "rational basis" analysis Colorado's Amendment 2 was unconstitutional because there is no purpose to this legislation other than to "animus toward the class [the amendment] affects." The Court for the first time protected the rights of the LBGTQ community, but it would not make them a suspect class instead saying that the Colorado Amendment 2 fails even the easy test of "rational basis."
The Court in 2003 with Lawrence v. Texas finally was willing to assert that the LBGTQ community did have rights that deserve protection with the highest scrutiny. In 2003, the Court determined that the LBGTQ community like all other people in the United States had the fundamental right to private intimate relations (i.e., sex). The Court though did not say that this right was due to Equal Protection but to the Due Process theory of the 14th Amendment from where the doctrine of a fundamental right comes. While this decision gave private intimate relations between any consenting adults, the highest protection in law it did extend that protection to all discriminatory acts against the LBGTQ community.
The last major Supreme Court decisions related to the LBGTQ community are: Hollingsworth v. Perry and Windsor v. United States. In Hollingsworth, the Court ruled that the petitioners (a group of California residents that proposed and supported the passage of Proposition 8) did not have grounds to sue and therefore the lower decision providing for marriage for all couples was kept in place. In Windsor, the Court held DOMA's section 3 which provided that the federal government would not recognize same-sex marriages for federal purposes was unconstitutional. The Court held that Section 3 violated the 5th Amendment’s Due Process Clause, but made no decision related to the 14th amendment's Equal Protection clause because the 14th Amendment does not apply to the federal government. Nonetheless, the Court did say:
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. . . . The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.
Windsor v. United States, 570 U.S. _, _ (2013) (slip op. at 25)
Thus we can see from the Supreme Court decisions regarding the LBGTQ community that from the first decision in
Baker v. Nelson to the most recent decision before
Obergefell in
Windsor v. United States, the Court is moving towards finding the rights of LBGTQ community deserves the highest protection. Further, the Court found in the progress from
Baker to
Windsor that to "[impose] a disability on the" LBGTQ community merely because they are LBGTQ is a violation of the U.S. Constitution. In
Obergefell v. Hodges, the Court for the first time stated that the LBGTQ community had both a fundamental right and that that right was protected by Equal Protection Clause under the 14th Amendment.
First, as mentioned above, we can see in the progress of LBGTQ rights through the Court in the past five decades. The Court has gone from summarily ruling that marriage does not apply to the LBGTQ community to saying that denying marriage to LBGTQs is a violation of both the Due Process and Equal Protection Clauses of the 14th Amendment. This progress leads one to conclude that the Court is heading toward defining the LBGTQ community as a suspect class.
Second, the Court invalidated the laws banning same-sex marriage on two different theories. The Court applied both the fundamental right theory under the Due Process Clause of the 14th Amendment and it also applied the Equal Protection Clause of the 14th Amendment. The Court did not have to find that the laws violated both theories. In fact, it goes against the practice of the Supreme Court and its precedents for the Court to decide something on a separate ground when it has already found a reason to decide the case.
The Doctrine of Judicial Restraint provides that a court will restrict itself to deciding a case on one ground even if there are two valid grounds for deciding a case. In other words, the precedents and history of the Court compels Justices to decide a case on the narrowest grounds possible and if the case has two different reasons for finding for a party, then the Court will only go with one. The goal of the Judicial Restraint Doctrine is to ensure that judges do not overextend their power to areas they should not.
The Roberts Court though has never seemed to be a fan of Judicial Restraint as can be seen in Citizens United (where the Court could have decided the case on narrow, non-constitutional but ruled on the constitutional issues anyway) or the recent VRA case. Yet, it is clear that the Court in Obergefell wanted to invalidate the state laws on both Due Process and Equal Protection grounds. If the Court wanted the LBGTQ community to only have the most basic Equal Protection Clause safeguards, they could have said nothing and left Romer as the other opinion to decide an LBGTQ case on Equal Protection grounds. Instead the Court decided Obergefell on Equal Protection grounds.
We know that the Court could have decided this case only on the Due Process Clause as it did in Lawrence. Finding that there is a fundamental right under Due Process Clause analysis gives that right the highest protection that the Court can provide. A state or locality trying to overcome a fundamental right must meet same burden described above by a state trying to discriminate against the highest suspect class of race, religion and so on. In other words, the Court could have given same-sex marriages the same protection as it did by just finding that the marriage laws were in violation of the Due Process Clause without any mention of the Equal Protection Clause. The fact that the Court did rule that the laws violate the Equal Protection Clause indicates that the Court wants to make the LBGTQ community a suspect classification.
The above inference is further borne out by the arguments of Chief Justice Roberts in dissent. In his dissent, the Chief Justice disputes a lot of this opinion, but his argument against the Court's holding that the states' marriage laws violate the Equal Protection Clause is illuminating because he argues it using rational basis analysis. The Court's opinion nowhere indicates that rational basis is the appropriate test here, but Roberts uses it in order to try to prevent others from assuming this opinion grants suspect classification to the LBGTQ community. As Roberts says, the denial of marriage is not irrational given the tradition of opposite-sex marriage. Yet, Roberts is quick to note that the myriad of benefits that are denied to same-sex couples due to the fact that they are not married may be violation of the Equal Protection Clause.
Roberts may not be wrong that it is not irrational to deny marriage to same-sex couples due to the history and traditions of marriage. The fact the Court does overturn these laws banning marriage to only opposite-sex couples on Equal Protection grounds, therefore leads one to the inference that the Court ruled that same-sex couples deserve heightened scrutiny. Therefore, the Court is saying by negative implication that the LBGTQ community is a suspect classification because there is potentially a rational basis for denying them marriage equality.
Finally, the Court often cites Loving v. Virginia and other cases that show that the groups protected in those cases were given suspect classification. As the Court notes in Obergefell, it decided in Loving that marriage is a fundamental right and to deny it between couples of different races is a violation of the Due Process and the Equal Protection Clauses. Thus, the Court gave interracial marriage the highest scrutiny. In addition in Loving, the Court noted that cases of this type require "heigtened scrutiny" because it involves racial classification.
The Court in Obergefell cites Loving 8 separate times. It is clear that the Court wanted to analogize the current case to the situation in Loving. The Court therefore is expressing that this case is like Loving. If this case is like Loving, then those covered by this decision should also be a suspect class.
The above view is further demonstrated by the fact that the other cases the Court cited in its Equal Protection Clause analysis also determined that the litigants were in a protected class. In Kirchberg v. Feenstra, Wengler v. Druggists Mut. Ins. Co., Califano v. Westcott, Califano v. Goldfarb, Weinberger v. Wiesenfeld, and Frontiero v. Richardson, the Court held that either the litigant was a protected class under Equal Protection analysis or that heigtened scrutiny should apply. There is no reason why the Court would cite to those cases and yet not expect that the litigants identified here should also be a protected class.
Therefore, an analysis of the history of the Court's treatment of LBGTQ litigants leads one to a conclusion that the Court made the LBGTQ community a protected class. This conclusion is further clarified by an analysis of the opinion in Obergefell. In this case, the Court held that the marriage laws violated both the Due Process Clause and the Equal Protection Clause. Since, the Court did not have to rule on the Equal Protection and did not do so in the past with several LBGTQ cases, its inclusion in this case leads to the conclusion that the Court is extending suspect classification to LBGTQs. This conclusion is further borne out by Chief Justice Roberts' dissent. Finally, the Court's citations demonstrate the Court means to make the LBGTQ community a protected class or suspect classification.
Whether or not my analysis is correct, you can bet your last dollar that lawyers respresenting LBGTQ litigants will be using this argument or something like it to claim that their clients should be given suspect classification.
(Tl;dr or to make my point more concisely: The Court's analysis has gone from dismissing summarily the claim for same-sex marriage to finding that laws banning same-sex marriage violate the Due Process and Equal Protection Clause. This history plus analysis of the Court's decision in Obergefell leads one to believe that the Court has given the LBGTQ community the same protections that it gives racial and religious minorities.)
Congratulations the LBGTQ community and Congratulations America. You are both much more FREE! Isn't it awesome?!?!?
If you followed me all the way down to here, thank you for reading so much. I will try not to be so verbose in the future.
Edit: Moved a paragraph per HeyMikey's suggestion so that everyone will know that the Court did not explicitly grant the LBGTQ community suspect classification. I also corrected my mistatement as to what Section 3 of DOMA said. Thank you sfbob for that correction.
Tue Jun 30, 2015 at 10:16 AM PT: Thank you to whoever is responsible for putting on Community Spotlight and republishing this diary in LBGT Kos Community. This is my first time on Community Spotlight and I am very excited.
And thank you for all the wonderful comments.