Will the Supreme Court Finally Address Same-Sex Marriage?

The U.S. Supreme Court has been asked to tackle the controversial issue of same-sex marriage not just once, but twice, next term. One petition asks the Court to uphold Proposition 8, the California constitutional amendment defining marriage as exclusively between a man and a woman. The other seeks to overturn the federal Defense of Marriage Act, which uses similar language to ban gay marriage.

While it is still unclear whether the justices will decide to hear either case next term, the issue of gay marriage appears destined for the Supreme Court in the very near future. Therefore, it is important to examine the brief, yet important precedent, established by the Court previously regarding the rights of lesbian, gay, bisexual and transgender individuals.

This week we will address the seminal case of Romer v. Evans, 517 U.S. 620 (1996), which held that a state law that banned any protections against anti-gay discrimination had no rational basis.  Next week, we will discuss Lawrence v. Texas, 539 U.S. 558 (2003), which made same-sex sexual activity legal in all states.

The case involved an amendment to the Colorado State Constitution, which precluded all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” The amendment was proposed and ratified by voters in response to several local ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities.

Aggrieved lesbian, gay, bisexual and transgender individuals and municipalities challenged the constitutionality of the amendment on the grounds that it violated the Fourteenth Amendment. The state trial court entered a permanent injunction enjoining the amendment’s enforcement, and the Colorado’s Supreme Court affirmed.

In a 6-3 decision, the Supreme Court ruled that Colorado’s amendment violated the Equal Protection Clause under the Fourteenth Amendment by depriving persons of equal protection under the law due to their sexual orientation.

“Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions,” the opinion, written by Justice Anthony M. Kennedy, stated.

The majority further concluded that the amendment could not be shown to “advance a legitimate government interest.” As Justice Kennedy aptly noted, “If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

In a statement surely to be quoted by proponents of gay marriage, the Supreme Court further observed, “The Amendment raises the inevitable inference that it is born of animosity toward the class that it affects.”

Romer will almost certainly play a role in same-sex marriage litigation. In fact, the Ninth Circuit Court of Appeals expressly relied on the case in ruling that California’s law defining marriage as only between a man and a woman is unconstitutional. The opinion stated, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships as inferior to those of opposite-sex couples.”