Will Same-Sex Marriage Decision Impact Wider Equal Rights Concerns?

As the U.S. Supreme Court prepares to consider two high-profile cases on same-sex marriage, speculation is running rampant. While the justices have agreed to take on the controversial issue, it is unclear how far ranging its decision will be.

Given the issue of standing raised in the briefs, the Court could resolve the same-sex marriage cases without ever reaching the main issue. Conversely, the court could also issue a sweeping decision on lesbian, gay, bisexual and transgender (LGBT) rights.

Assuming the justices do reach the merits of the cases, the primary question before the Court is whether the federal Defense of Marriage Act and California’s Proposition 8 violate the Constitution’s guarantee of equal protection under the law. In conducting this analysis, one of the most prominent determinants will be the level of scrutiny applied to the laws.

There are essentially three options: “rational basis review,” “intermediate scrutiny,” and “strict scrutiny.” Under the lowest threshold, the government action must be “rationally related” to a “legitimate government purpose.” Under intermediate scrutiny, the action must “substantially related” to an “important government interest.” Finally, the toughest hurdle requires the law be “narrowly tailored” to address a “compelling government interest.”

While some groups have urged the justices to apply the highest level of review, the Court has traditionally limited strict scrutiny to allegations of discrimination based on race or national origin. Nonetheless, the Court may still find the laws unconstitutional under one of the lower standards.

In Romer v. Evans, the Supreme Court used rational basis review to invalidate an amendment to the Colorado State Constitution that precluded all legislative, executive, or judicial action designed to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” In Lawrence v. Texas, Supreme Court used when has been characterized as a form of rational review when it struck down a Texas sodomy law, finding that “[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”

At this point, it is unclear if the Court will continue to view matters of sexual orientation under rational review. Should the Court adopt one of the more stringent standards, it will arguably make it easier to overturn other laws that discriminate against the LGBT community.