Time‘s Max Whittaker has a good piece on the upcoming federal challenge to laws against same-sex marriage. Given that Supreme Court action is the only federal way to invalidate state constitutional amendments, some decision ruling that marriage discrimination violates the Equal Protection Clause will be necessary for national marriage rights will be necessary. The question is whether that decision is possible today. I have to agree with Andrew Koppelman that it isn’t:
The high court has issued powerfully pro-gay-rights decisions at key points in the past 20 years — including striking down criminal statutes forbidding gay sex six years ago. But it has never voiced a word of enthusiasm for gay marriage. That has left scholars and longtime legal veterans of the gay-rights movement fearing disaster for gay marriage, should the issue be decided by the conservative-leaning Justices. “When I try to count the votes in favor of same-sex marriage on the Supreme Court, I have trouble getting to one,” Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, told TIME.
I’m no lawyer, but you basically need two things for a ruling like this: a fundamental right to marriage in the constitution, and a decision that discrimination on the basis of sexual orientation is a form of sex discrimination. The former is taken care of; Zablocki v. Redhail established a fundamental Constitutional right to marriage. The latter is trickier. While scholars like Koppelman have argued compellingly that discrimination against gays and lesbians is a form of sex discrimination, the Supreme Court has never accepted this. Thus, they have not applied the standard of “intermediate scrutiny” to laws infringing on gay rights, the standard generally used in sex discrimination cases. Intermediate scrutiny, in sex discrimination cases, requires discrimination to have an “exceedingly persuasive justification,” according to the Court, which is a tough standard for same-sex marriage opponents to meet. But in Romer v. Evans even the Court’s liberals did not apply intermediate scrutiny, instead using a rational-basis test to overrule an anti-gay constitutional amendment in Colorado. Rational-basis tests only require that a policy be “rationally related” to a “legitimate” government interest. This is far easier for same-sex marriage opponents to argue than the the “exceedingly persuasive” requirement of intermediate scrutiny.
Now, this does mean that a ruling against marriage bans is impossible. Intermediate scrutiny, in addition to its use in sex discrimination cases, is used in cases concerning fundamental rights, like marriage. But as a matter of politics, Koppelman is right. I doubt that, assuming a rational-basis test, any member of the court would rule against marriage bans. Even if, say, Ginsberg, Breyer, Stevens, and Sotomayor agree to use intermediate scrutiny and overturn the ban, I doubt even more that Anthony Kennedy would go along, as he was the justice who made the decision to use a rational basis test in Romer v. Evans. There’s a good case to be made that marriage bans are unconstitutional. It’s just not one the Supreme Court is ready to accept.