The Constitutional Same Sex Marriage Debate
Legal Arguments on Equal Protection and Due Process
Mar 1, 2009
Speaking at a same-sex marriage panel discussion recently, Professor Jean Love summarized the case to be made for same-sex marriage in any state law constitutional challenge to the denial of marriage equality. Her approach focuses on two strands of constitutional law: the right to liberty under the due process clause, and the right to equality under the equal protection clause. She also anticipated a number of objections to be made that have succeeded in some state court cases.
Is Same-Sex Marriage Necessary to Protect a Fundamental Liberty Interest?
The U.S. Supreme Court has recognized a fundamental right to marry, creating a threshold of basic marriage recognition that states must meet at a minimum to avoid violating the federal constitution. In other words, states must allow some marriage rights to their citizens. State constitutions tend to follow similar reasoning under their own due process clauses. Part of the right to liberty is unquestionably the right to marry. However, what is the nature of that right?
As Professor Love explained, if a state court finds that the right in question in a same-sex marriage case is a fundamental right to same-sex marriage, then it can easily say that there is no such right, based on history and tradition. After all, no state recognized marriage between same-sex partners for hundreds of years. Though some states, like Iowa, have a strict factual standard for making an argument based on history and tradition, framing the issue in this way still makes it tough to argue.
On the other hand, if the state court finds that the right challenged is the right to marry, and the question is whether the state has a justification for denying same-sex couples that right, it becomes easier for an attorney representing the plaintiff(s) in such a case to argue that there is a violation of a fundamental liberty interest. The best way for the attorney to make the argument is to say that the right in question is the right to marry the partner of one's choice. This relies on a familiar notion of individual liberty and includes same-sex partners in the analysis.
Does Denial of Same-Sex Marriage Violate the Equal Protection Clause?
Professor Love explained that the next argument an attorney can make is that denial of the right to marry is an equality issue. However, to show that a state action violates equal protection, under the state or federal constitution, the plaintiffs must meet a certain standard based on whether or not they fall into a suspect or quasi-suspect classification. If they do not, the standard will be deferential rational basis review, and although this can have some teeth in some states (again, like Iowa), it is still preferable to find a way to argue suspect classification so that the state has to meet a higher burden.
Under the federal constitution, a class can be suspect, such as race, so that strict scrutiny applies to the differential treatment based on classification and the government must show, among other things, a compelling state interest for the differential treatment. A class can also be quasi-suspect, like sex, so that intermediate scrutiny applies and the state needs only a legitimate interest. Some states use a similar scheme, and others have only two review standards – strict scrutiny or rational basis. An attorney for the plaintiffs would argue for the strictest possible scrutiny available.
Professor Love suggested that the attorney might argue that denial of same-sex marriage is a form of sex discrimination. To make this argument, she must be careful to frame the right as an individual one, however. The state may be discriminating when it refuses to let women marry women, when it does allow men to marry women, based on sex. If the attorney isn't clear, though, the court may simply say that there is no sex discrimination because gay men and lesbians are treated the same. Another approach is to argue that sexual orientation is the classification. Most states have not recognized orientation as a suspect class, but success here would be useful for other sorts of discrimination as well.
Source: Professor Jean Love speech at the Journal of Gender, Race, and Justice Symposium, University of Iowa, February 27, 2009
