By Kate Paine, Esq.
Come next term, the United States Supreme Court may have, not one, but two, opportunities to determine whether sexual orientation is a suspect class afforded extra protection against discriminatory laws.
The Supreme Court has been asked to review the opinions of both the First Circuit Court of Appeals (finding unconstitutional Section 3 of DOMA, which defines marriage for federal purpose as only those unions between one man and one woman as husband and wife, but does not address whether same-sex couples may marry in the first place) and the Ninth Circuit Court of Appeals (striking down as unconstitutional California’s Proposition 8, which does ban same-sex couples from marrying).
The Supreme Court receives approximately 8,000 requests to review cases per year and grants review in only one or two percent of those cases (approximately 80 to 150). However, because different courts have reached the opposite result regarding both the constitutionality of Section 3 of DOMA and the same-sex marriage issue, these two cases are prime candidates to be accepted for review by the Court.
Should the Supreme Court grant review in these cases and ultimately agree with the decisions of the Courts of Appeals, this will indeed be a great victory for same-sex marriage. Perhaps even more important than the outcome reached in these cases, however, will be the analysis by which the Court reaches its conclusion. This is because the Supreme Court can decide that DOMA and Prop 8 are unconstitutional while, at the same time, sidestepping the issue of whether sexual orientation, as a whole, is a suspect class afforded heightened protection from all laws that discriminate (not just those relating to marriage).
With respect to DOMA, as discussed in my last post, the Court could determine that, because there simply is no legitimate reason rationally related to the alleged goals sought to be achieved by preventing federal recognition of same-sex marriage, the Court does not need to decide whether all laws that discriminate based on sexual orientation should be subject to rational basis review or heightened scrutiny.
Regarding Prop 8 (and other state laws that ban same-sex marriage), the Court could again avoid the equal protection issue and instead base its decision on the fundamental right to marry. Indeed, the fundamental “freedom of choice to marry” was one of the bases for the Supreme Court’s 1967 opinion striking down state laws that prohibited interracial marriages.
More information on the Prop 8 appeal can be found here.