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Arguments and Conclusions: A Look at the Supreme Court’s Candidates for Marriage Equality Rulings

LGBT Legal Cases Marriage equality Marriage Equality Trials

It's time for marriage equality. Attribution: JEWEL SAMAD/AFP/Getty Images
It’s time for marriage equality. Attribution: JEWEL SAMAD/AFP/Getty Images

This past month, lawyers from Utah, Oklahoma, and Virginia petitioned the U.S. Supreme Court to consider reviewing three federal appellate court decisions that struck down the states’ respective bans on same-sex marriage. If the Supreme Court chooses not to hear the cases, then the appellate courts’ decisions will stand, effectively legalizing same-sex marriage in the states that fall within the jurisdiction of those two circuits (the 4th Circuit includes Virginia, Maryland and the Carolinas, while the 10th Circuit includes Utah, Oklahoma, Colorado, Kansas, New Mexico, and Wyoming). However, should the Supreme Court choose to hear one or more of the cases, which it likely will, a definitive ruling on same-sex marriage will be in store, either enforcing the remaining 31 states’ bans on same-sex marriage, or overturning them and disallowing any new bans to be instituted.

The question at hand in each case is whether or not the state’s ban violates the U.S. Constitution, specifically the Due Process and Equal Protection Clauses located in Section 1 of the Fourteenth Amendment. There are a few crucial debates that stem from this question.

The same-sex couples (the plaintiffs in these cases) make the case that because the ban impinges on one of their “fundamental rights” (the right to marry who they choose), same-sex couples are not protected equally by the laws of the state, and so the bans are unconstitutional. The Supreme Court has deemed the “right to marry” a fundamental constitutional right, among others—as described by Justice Robert Jackson in West Virginia Board of Education v. Barnette, “[fundamental rights] withdraw certain subjects from the vicissitudes of political controversy… place them beyond the reach of majorities and officials and… establish them as legal principles to be applied by the courts.” However, this opens up the next major train of argument. Namely, is the right being violated the “right to marry,” or a new right, “the right to marry someone of the same sex”?

The state officials defending the bans (the defendants) make the case that historically, the right to marry has been part of an institution of marriage that has always been heterosexual. They claim that even though the landmark 1967 case Loving v. Virginia overturned all bans on interracial marriage, marriage constituting a core interest “to all individuals.” the question of opposite-sex marriage vs. same-sex marriage is an irrelevant one. But this gets at a broader issue to resolve—what does the institution of marriage mean, historically and currently?

If the states’ marriage laws are to be “protected” from new forms of marriage, then marriage has got to serve the state interest in some way; it’s got to be for something.  Marriage’s primary purpose, according to Utah’s District Court, is to create a “public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.” According to the defendants, its purpose is far narrower and biologically based: marriage is an economic incentive for heterosexual couples not to leave the children they’ve created (sometimes unintentionally), so as to “sustain society.” Arguments from across the aisle often frame this as “adult-centric” vs. “child-centric” models of marriage, although counter-arguments prove this distinction disingenuous—if the purpose of marriage is to legitimize a family, and creating a family can involve adoption, then it seems that same-sex couples could benefit from exactly the form of marriage that heterosexual couples enjoy, even if their children are always deliberately planned, and not incidental.

After that debate is resolved by the Supreme Court—whether the right at question is the right to marry or the right to marry someone of the opposite gender—then the state’s laws banning same-sex marriage are taken under consideration. If “the right to marry” is indeed the right in question, then it is a fundamental one, and so the bans are subjected to “strict scrutiny,” which places the burden on the defendants to prove why they are not violating the fundamental right, only using the original legislative arguments.

However, if the “right to marry someone of the same sex” is the right in question, it has to be classified as a new fundamental right or not. If it isn’t, the bans only undergo “rational basis” review, which means that the plaintiffs have to prove every explanation the defendants provide for the law irrational.

Although the three cases are very similar, they do differ in ways that, if one is accepted by the Court and not another, could mean slightly different national precedents if the Court ruled on them.

In the Virginia case, the fervor of the ban is unmatched—not only does its ban deny marriage to same-sex couples, but it also seeks to deny them from acquiring any of the rights of marriage through other means, such as civil unions or domestic partnerships. The plaintiffs, two couples, each represent one aspect of the ban’s two-pronged scope: the denial of both in-state marriage licenses as well as out-of state marriage licenses.

In the Utah case, the defendants’ case relies more heavily on the claim that the state is being deprived of its right to define marriage, “disenfranchising” millions of its voters. Because the Constitution doesn’t define marriage, and the Supreme Court only deems the “right to marry” as a fundamental right, Utah claims that it has been delegated the right to define what “marry” means. The defendants claim that the Tenth Circuit’s ruling undermines democracy, and the federal system.

In the Oklahoma case, more emphasis is placed by the defendants on the suspect nature of same-sex parenting. They note the uneasiness of young adults who don’t know their biological parents, or are conceived through sperm donation, though arguments from the other side rebut these claims as largely unfounded, while conflict in the social science community over that issue has also provided little evidence for the claim.

It’s clear that any of these cases, if presented before the Supreme Court, will set a far-reaching precedent for marriage equality. It’s also clear that although the ideologies involved are relatively uncomplicated (pro-same-sex marriage, anti-same-sex marriage), the choices of arguments used to support them are not.

Thanks to Equality Case Files for these filings


  • 1. Corey_from_MD  |  August 22, 2014 at 10:23 am

    A counter-balancing article can be found on SCOTUSBlog:

  • 2. Margo Schulter  |  August 22, 2014 at 12:34 pm

    In addition to the question of whether same-sex marriage is included within the fundamental right of marriage, as the Tenth and Fourth Circuits have held as the basis for their 2-1 rulings, there’s the knottier equal protection question. This has two aspects, which have been addressed in different ways by a number of the Federal District Court decisions in favor of marriage equality.

    The first question is the level of scrutiny, something that’s an especially delicate area because it affects far more than just marriage cases. If sexual orientation is a suspect or quasi-suspect classification, then LGBT rights in many other areas under the Equal Protection Clause of the Fourteenth Amendment could be greatly expanded.

    Traditionally, the highest level or strict scrutiny has applied to discrimination by race, for example: this is also the level that applies to regulation of a fundamental right such as the right of marriage. The other level of heightened scrutiny is intermediate scrutiny, which applies to discrimination by gender, and requires an “exceedingly persuasive” justification. The Second and Ninth Circuits have applied heightened scrutiny to sexual orientation, so far.

    The lowest level, used classically for economic legislation, is rational-basis scrutiny in its simple form: the law passes muster if there is any conceivably rational basis relating to a legitimate government purpose (not including mere “moral disapproval” or animus against a group).

    Some of Justice Kennedy’s opinions also suggest a kind of “rational basis plus” review, which weighs the actual purposes of the law against the level of harm done to the group discriminated against; this is also called “rational basis with a bite.” If it doesn’t use the fundamental rights approach followed by the Fourth and Tenth Circuits, SCOTUS could use this kind of scrutiny to strike the bans.

    However, if the Court wanted to strike the bans without either finding same-sex marriage to be within the fundamental right of marriage, or using some kind of heightened or “semi-heightened” equal protection scrutiny, it could also simply find that the bans cannot pass even simple and bare rational-basis review.

    Some of the Federal Distrct Court decisions have taken this approach, and we may remember the quote from Judge John G. Heyburn II in Kentucky: “These arguments are not those of serious people.”

    Either the fundamental right of marriage approach — which has strong precedential support — or the rational-basis approach (maybe with at least a bit of a bite), would neatly overturn the bans while leaving the Court’s options open on the broader question of what level of scrutiny is appropriate in sexual orientation cases.

  • 3. brandall  |  August 22, 2014 at 12:39 pm

    Ruth Bader Ginsburg (RGB) Comments on the Windsor case

    NLJ: When the 5-4 majority in United States v. Windsor struck down the marriage definition in the Defense of Marriage Act, Justice [Anthony] Kennedy’s opinion had two major strands in it: federalism and equal protection. Both sides in the same-sex marriage debate and litigation are relying on Windsor: opponents using federalism; supporters using equal protection. Did the court send conflicting signals in that decision?

    GINSBURG: In the federalism theme, marriage and family law have traditionally been the states’ domain and that goes one way. But then there is this eloquent statement about liberty and freedom to be what you are. The predecessor cases, also written by Justice Anthony Kennedy, those were not federalism cases, starting with Romer v. Colorado and then Lawrence v. Texas. I guess if you put those three together you say the main theme is the right to be treated with equal dignity.

    "Starting with Romer"….a state case. She "could" have mentioned Baker and didn't for a reason…IMHO.

    Read more:

  • 4. hopalongcassidy  |  August 22, 2014 at 12:46 pm

    I wouldn't have complained if she had mentioned Baker and called it ancient and irrelevant in today's society. 🙂

  • 5. sfbob  |  August 22, 2014 at 1:44 pm

    She didn't mention Baker in the interview but she mentioned it–disparagingly–during the arguments on Windsor.

  • 6. brandall  |  August 22, 2014 at 4:44 pm

    I know you know she wouldn't comment on cases coming up before the court….but, RBG could have figured out a way to tell some legal story about a a butcher and a candlestick maker and then said, "I don't remember the 3rd one, but you can forgot about him since he is not relevant any more." …. end of story.

  • 7. FredDorner  |  August 22, 2014 at 2:05 pm

    That's a very good article. Ginsburg has some real insight here:

    “Once [gay] people began to say who they were, you found that it was your next-door neighbor or it could be your child, and we found people we admired,” she said. “That understanding still doesn’t exist with race; you still have separation of neighborhoods, where the races are not mixed. It’s the familiarity with people who are gay that still doesn’t exist for race and will remain that way for a long time as long as where we live remains divided.”

  • 8. ebohlman  |  August 22, 2014 at 10:16 pm

    You can say that again. If someone said "I don't have any gay relatives" most people would have a hard time keeping a straight (pun intended) face: we'd be muttering under our breaths "not any that would let YOU know about it." But "I don't have any black relatives" is a completely believable statement coming from a white person; I can even say it myself.

  • 9. JayJonson  |  August 23, 2014 at 6:12 am

    " But 'I don't have any black relatives' is a completely believable statement coming from a white person; I can even say it myself."

    If you lived in Louisiana and most of the South, you probably couldn't say that, at least with a straight face.

  • 10. zackyma  |  August 23, 2014 at 4:19 pm

    Honestly, I don't know of any gay relatives of mine. I would have absolutely no problem if any of my relatives were gay, but if any of them are, they haven't let me know. I support marriage equality, non-discrimination laws, etc, and one doesn't need gay relatives to do so.

  • 11. KahuBill  |  August 22, 2014 at 3:01 pm

    I wish Justice Ginsburg would come to Hawai'i during her break. We are far from perfect, but we have the most culturally and racially diverse population in the nation. It is where Barack Obama grew up and went to high school. With respect to ME, the divisiveness and rancor came for the most part from various religious groups seeking to use the civil laws to impose their beliefs on all.

  • 12. hopalongcassidy  |  August 22, 2014 at 4:42 pm

    Wait, I heard Obama was a Muslim who was born in Kenya. I'm sure Lush Rimjob said that on the teevee a little while ago.

    On edit: I guess there are some sarcasmometers around here that haven't been calibrated recently…thus the downvotes. glurk.

  • 13. bayareajohn  |  August 22, 2014 at 7:23 pm

    Maybe some of us don't upvote lewd and profane language, no matter how foul the target is.

    In the last three days, your posts have included "Rimjob, fucking, pricks, goddamn, assholes, and shit", peppered through otherwise entirely appropriate and valuable comments. I'm not pushing rampant PC nor thought police, but my vote is not based on lack of appreciation of sarcasm.

    I see from your other posts that you are airline pilot. I doubt you would use this language on the plane PA system for the same reason that it isn't typical here. I would not see it as an improvement of this site if your language choice became the standard here.

  • 14. JayJonson  |  August 23, 2014 at 6:17 am

    I would add that comments on gay sites are routinely monitored by our enemies, who cherry pick them to find evidence of how bitter and mean and venomous we are, so that they can portray themselves as victims of gay bullies, or as they prefer to say, the "gaystapo."

    I realize how frustrated we are these days, when these infuriating stays of perfectly good court decisions delay justice. But we should not give our enemies ammunition.

  • 15. hopalongcassidy  |  August 23, 2014 at 4:40 pm

    Oh, I got it so wrong. I should just say "Please may I have another, sir?"……………..

    I am a well armed member of the gaystapo and the assholes might as well just get used to it.

  • 16. hopalongcassidy  |  August 23, 2014 at 4:38 pm

    In deference to your puritanical discomfort with certain words (some of which in your list were not considered "profane" until the 19th century) I will try to refrain from causing you any more angst. I borrowed the word "pricks" from the Xian Bible. The thing is, after 62 years of being vilified and insulted and told I'm going to hell by ignorant bigots, I really don't give a good goddamn what anybody thinks of me, I call a spade a spade and IMO not enough people do that.
    Fuck a bunch of political correctness.

  • 17. Jen_in_MI  |  August 23, 2014 at 8:25 pm

    Slow clap in your honor, sir.

  • 18. brandall  |  August 22, 2014 at 5:24 pm

    “Next door neighbor” and some churches….

    Besides living in SF, we have a family compound of sorts in a rural area of Fresno. Our Fresno neighborhood is composed of senior-aged whites, younger Hmong and Hispanic families, and one older Armenian couple.

    There is an interesting history of Armenians specific to Fresno. Until recently, the largest concentration of Armenians in the U.S. was in Fresno. They began settling in the 1870’s and by the turn of the century owned more than 40% of the land in the county. Very prosperous, they were deeply resented for continuing to buy up the county farm lands for raisins. By the turn of the century, they were subject to tremendous discrimination, especially by the Protestant churches. Land sale restrictions in the Central Valley were placed on available properties to insure they were not sold to Armenians. Armenians locals were called "Fresno Indians.” Federal authorities classified Armenians as "Asiatics" and denied naturalized citizenship to Armenian immigrants. This classification also made marriage to Caucasians to be considered inter-racial marriage and therefore banned by the churches. This could be considered a marriage ban that prevented an Armenian from marrying a Caucasian who owned land in the county. So, there were blocked from buying land and blocked from marrying into families who already owned land. Central Valley communities were passing land use restriction laws that lead up to the 1913 California Alien Land Law restricting Asians from owning land in the state. In the 1909 Halladjian decision, a U.S. circuit court of appeals ruled that Armenians were Caucasian (white) because of their ethnography, history and appearance. Discrimination against Armenians owning land was mentioned in TV ads for the “No on Prop 8” in 2008.

    As a teenager, I learned the basics of these discrimination issues because of two dear Armenian friends who I have known from our days together at Hollywood Hight School. We remain in touch. One is a vocal coach to famous stars and the other is President of one of the most famous concert halls in the world.

    Back to Fresno…We bought of first of several houses in a row in 2004. My husband’s parents live across the street and grandma lived next door to us. I am sure the neighborhood figured out the situation of two older men buying a house together. We would wave or chat with our neighbors 2 or 3 places down the street including the Armenian couple. We never had any issues.

    Then came 2008 and Prop 8. Suddenly, we lived in a neighborhood sea of “Yes on 8” lawn signs. But, we owned 2 houses and we had grandma’s and the in-law’s. So, with 4 of the largest properties on the street, we had 35% of the block plastered with multiple “No on 8” lawn signs. Despite our signs, we never had any issues with the neighbors.

    “In the window” before the November elections, we were married in SF. A few people in our Fresno neighborhood knew and were happy for us. Then one day, our Armenian neighbor drives up to our place, rolls down his window and says, “My wife and I can no longer talk or associate with you because of who you are.” I was stunned, but calm. I asked why and he replied their Armenian church prohibited associating with “your kind of people and I heard you were married now.” I replied he had known us for 4 years, we had always waved and chatted and we were no different than the day we moved into the neighborhood. His reply was “We will no longer speak to you.” I then reminded him Fresno had been terribly discriminatory to his ancestors in land rights for decades, classified his forefathers as Asian and in essence banned marriage to local white residents. I asked him what was the difference and does he understand what he was saying. He replied, “we have to follow our church.” He politely said good-bye, rolled up his window and drove away. To this day, he has never spoken to us again.

    My story of how some religious organizations are the biggest remaining cause of discrimination in this county. I’d loved to hear Scalia’s comments on this as he continues to find ways to exempt religious organizations.

  • 19. bayareajohn  |  August 22, 2014 at 7:09 pm

    "Do as we tell you or rot in hell for eternity" is a surprisingly powerful threat to some folks. A "religious exemption" should not be an exemption from thinking, but it is.

  • 20. ebohlman  |  August 22, 2014 at 10:33 pm

    Very nice history lesson. Although most people tend to think of interracial marriage bans as a Southern thing driven by anti-black racism, it's important to remember that many Western states, which at the time had minimal-to-nonexistent black populations, also had interracial bans. These were driven by anti-Asian racism, particularly the desire to keep the Chinese workers who had been brought in to build the railroads from establishing families in the US.

  • 21. JayJonson  |  August 23, 2014 at 6:27 am

    Thank you for both the history lesson and the personal anecdote. I had no idea that Armenians had been so discriminated against. The families of most of the Armenians I have known came to the US after the holocaust in Turkey. At least, they begin the history of their immigration there. In any case, there is a very large Armenian community in the Detroit area. They tend to be very well-educated and high achievers there. When I lived in Michigan, I was not aware of any particular animus against gay people on their part, but then most of my friends are not particularly religious, although they identify as Armenians and are part of a close-knit community. We did invite an Armenian couple to our wedding and they did decline politely, but we don't think it had anything to do with their religious beliefs.

  • 22. OrvilleKlutz  |  August 23, 2014 at 11:40 am

    Religion in general is causing the majority of problems related to human beings supporting each other. Just look at the terrorists such as ISIS or the milder version of them in the USA such as the Westboro Baptist church. It is interesting that you mention the Armenians in your neighborhood as saying, "we have to follow our church" . I am gay, have lived with my partner of over 52 years in Massachusetts, married 10 years, and we are retired, living the American dream. That being said, we were invited to an Armenian Church wedding by Harry and Priscilla Kachadorian, very dear friends of ours. There are a lot of Armenians in Massachusetts and perhaps you should mention to your neighbors that their Armenian Church is behind the times.

  • 23. scream4ever  |  August 24, 2014 at 10:19 pm

    For good people to do evil things, that takes religion, plain and simple.

  • 24. Mike_Baltimore  |  August 22, 2014 at 10:14 pm

    My experience was a bit different.

    In grades 1-12 (kindergarten was not a required grade when I was in school), there were almost no Hispanics, and no African-Americans, in the schools I attended. Only after I was in college did I go to school with African-Americans.

    Before college, though, I did go to school with several people from Eastern and SouthEastern Europe (many who were born in the 'home' country, the rest first or second generation Americans):

    NE Indiana was originally settled mostly by Germans, which mostly explains the Austrians. The rest? Who knows for sure why they ended up in the county.

    Today, the county I grew up in still has very few AAs, and most of the Hispanics live in the diametrically opposite corner of the county.

    The above may explain one reason I was drawn to Hans (his grandmother was Danish [a member of the Danish underground in WW II], his mother was born in Germany [his father was of German ancestry, but was a 'full bird' colonel in the American Army stationed in Germany], and Hans spoke German before he spoke English). Hans also had been in the Navy, as had my father. The above also might be a reason I now live in a city (Baltimore) that is majority minority in population.

  • 25. Are Americans really beco&hellip  |  August 24, 2014 at 5:27 pm

    […] No. It's all a labyrinthine conspiracy by pretty much every pollster in the country. Because pollsters aren't interested in having accurate business models, they're interested in falsely claiming that more people support same-sex marriage than really do. Every last pollster… Public opinion of same-sex marriage in the United States – Wikipedia, the free encyclopedia PS – How have the votes gone in the last four states that voted on the issue? Hint #1 – November 2012: those states were Maine (voted to institute a new law allowing same-sex marriage), Maryland (voted to uphold a new law allowing for same-sex marriage), Minnesota (voted not to enact a constitutional ban on same-sex marriages) and Washington (also voted to uphold a new law allowing for same-sex marriage). Hint #2 – There's a reason that no more Republican-controlled states are putting such measures on the ballot, like Indiana earlier this year, which decided it would be embarrassing to see their version of get-out-the-anti-gay-vote result in their proposed ban being shot down. In related news… Equality On TrialArguments and Conclusions: A Look at the Supreme Court's Candidates for Marriage Eq… […]

  • 26. ragefirewolf  |  August 25, 2014 at 4:57 am

    An excellent summary, thank you, Chris Dietz.

  • 27. RnL2008  |  August 25, 2014 at 11:41 am

    However, this opens up the next major train of argument. Namely, is the right being violated the “right to marry,” or a new right, “the right to marry someone of the same sex”?
    Either marriage is truly a FUNDAMENTAL right to marry the person one chooses regardless of gender or it was ONLY truly meant for folks opting to marry the opposite-sex…….which would still be considered Discriminatory!!

    We are NOT asking for a new right and I'm tired of people using terminology like "GAY" or "SAME-SEX" marriage to try and convey something NOT being entered into as evidence!!!

    I am legally married to my wife……our Marriage License does NOT say "GAY" or "SAME-SEX" on it…… just says Marriage Certificate/License and is the EXACT same State Marriage license issued to EVERY couple who got married in California up until it was changed in November of 2008.

    The new Marriage Licenses issued in California now have boxes to check depending on the couple seeking to marry!!!

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