Rational Basis, Equal Protection, and Heightened Scrutiny: The Implications of United States v. Windsor on State Constitutional Same-Sex Marriage Bans

By: Erin Mee

The Supreme Court held Section 3 of the Defense of Marriage Act (DOMA) unconstitutional as a deprivation of equal liberty in United States v. Windsor.  This holding means that federal benefits are now applied equally to married same-sex couples as they are to opposite‑sex married couples. It also means that the door is now open for challenges to the constitutionality of state laws that prohibit same-sex marriage.

On Thursday, February 13, 2014, a federal judge overturned Virginia’s constitutional amendment that banned same-sex marriage.  The judge stated that even a rational basis test, which determines whether a law has a “rational” connection to a legitimate governmental purpose, could not justify Virginia’s constitutional prohibition on same-sex marriage.  The ruling overturned a constitutional amendment that was adopted by Virginia’s voters in 2006.  It also means that Virginia must honor same-sex marriages that were legally performed in other jurisdictions.

Similarly, a federal judge in Kentucky recently ruled that the state must honor same-sex marriages performed in other states, but did not address same-sex marriage within Kentucky itself.  The judge used the Equal Protection clause of the Fourteenth Amendment as rationale to strike down part of the state’s law that prohibited the state from applying equal state benefits to same-sex couples who were legally married in other states.  He also compared denying privileges to same-sex married couples to the civil rights abuses of segregation and Jim Crow laws.

Judges in Oklahoma and Utah also cited the Equal Protection clause and the reasoning in United States v. Windsor to strike down state bans against same-sex marriage.  However, the Utah ruling stopped short of declaring that all laws against gay marriage are unconstitutional.

The debate over what legal standard may be used to afford same-sex couples the same privileges as opposite-sex married couples also rages on in other states. In 2012, a district judge in Nevada rejected a challenge on Equal Protection grounds to Nevada’s constitutional amendment defining marriage as between one man and one woman.  The plaintiffs, eight same-sex couples, appealed to the Ninth Circuit.  Catherine Cortez-Masto, the Nevada State Attorney General, attracted significant attention when she filed a brief on behalf of the state defending the district judge’s decision.  Cortez-Masto drafted her brief relying on the belief that the Ninth Circuit would use the highly deferential rational basis standard of review. The Ninth Circuit used this standard in previous cases involving discrimination on account of sexual orientation.

However, in late January 2014, the Ninth Circuit changed this standard, and ruled that distinctions based on sexual orientation should now be subject to “heightened scrutiny.”  According to this standard, if a law or policy discriminates based on sexual orientation, the government must show that the law or policy furthers an important governmental interest in a way that is substantially related to that interest. Previously, only distinctions based on gender have been subject to such heightened scrutiny.

In light of this Ninth Circuit decision, Cortez-Mastro decided to withdraw Nevada’s brief in support of Nevada’s constitutional ban against same-sex marriage, as she now believes the Nevada constitutional amendment cannot be upheld under this heightened standard.  Cortez‑Masto also made a statement on January 24th after the Ninth Circuit’s decision saying the state’s arguments were “likely no longer tenable in the Ninth Circuit,” and stating that her office would be conducting further review.

As a result of the Virginia, Kentucky, Oklahoma, Utah, and Nevada same-sex marriage decisions, there appears to be three different standards for reviewing cases related to same-sex marriage at the state level: a rational basis standard, an Equal Protection standard, and a “heightened” scrutiny standard.  The constitutionality of prohibiting same-sex marriage by the states will likely wind up in the Supreme Court sooner rather than later,  so it is worthwhile to examine which standard is the most likely to attract Supreme Court attention.

I believe the Supreme Court will use equal protection principles to decide whether a state constitutional ban against same-sex is constitutional.  In United States v. Windsor, the Court found that the states had the right to regulate marriage.  If states have the right to regulate marriage the issue will likely be satisfied under the rational basis test, since it is a very low standard.  As in Nevada, states have used the rational basis test in the past to legitimize discriminating against same-sex couples.  However, the same review standard was used by the judge in Virginia to overturn the same-sex marriage ban.  Therefore, the Court will likely either have to use the new “heightened” scrutiny test or equal protection reasoning to find state same-sex marriage bans unconstitutional.

It appears that the Court will most likely use equal protection reasoning for two reasons.  First, heightened scrutiny has only been used to apply to laws that discriminate on the basis of gender in the past, which means that the Court is going to be hesitant to apply it to another group.  Second, and most important, the Court used equal protection reasoning to strike down Section 3 of the Defense of Marriage Act in United States v. Windsor, which makes it likely they will use the precedent set in that case to build upon the same-sex marriage jurisprudence.

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