Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In its 1996 decision Romer v. Evans,1 the Supreme Court struck down a state constitutional amendment that both overturned local ordinances prohibiting discrimination against homosexuals, lesbians, or bisexuals, and prohibited any state or local governmental action to either remedy discrimination or to grant preferences based on sexual orientation. The Court declined to adopt the analysis of the Supreme Court of Colorado, which had held that the amendment infringed on gays’ and lesbians’ fundamental right to participate in the political process.2 The Court also declined to apply the heightened standard reserved for suspect classes to classifications based on sexual orientation, and assessed only whether the legislative classification had a rational relation to a legitimate end.

The Court concluded that the amendment failed even this restrained review. Animus against a class of persons, in the court’s view, was not a legitimate government goal: “[I]f 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.” 3 The Court rejected arguments that the state amendment protected the freedom of association rights of landlords and employers, or would conserve resources for fighting discrimination against other groups. The Court found the law unnecessarily broad for these stated purposes, and concluded that no other legitimate rationale existed for such a restriction.4

In the 2013 decision of United States v. Windsor,5 the Court struck down Section 3 of the Defense of Marriage Act (DOMA), which restricted federal recognition of same-sex marriages by specifying that, for any federal statute, ruling, regulation, or interpretation by an administrative agency, the word “spouse” would mean a husband or wife of the opposite sex.6

, § 3, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7). In Windsor, the petitioner had married her same-sex spouse in Canada and lived in New York where the marriage was recognized. After her partner died, the petitioner sought to claim a federal estate tax exemption for surviving spouses.7 DOMA precluded her claim for an exemption. In examining the federal statute, the Court initially noted Section 3 of DOMA took the “unusual” step of departing from the “history and tradition of reliance on state law to define marriage” in order to alter the reach of over 1,000 federal laws and limit the scope of federal benefits.8 Citing Romer, the Court noted that discrimination of “unusual character” warranted more careful scrutiny.9

Noting New York’s recognition of petitioner’s marriage, the Court said, the state conferred a “dignity and status of immense import,” 10 and the federal government, with Section 3 of DOMA, was aiming to impose “restrictions and disabilities” on and “injure the very class” New York sought to protect.11 Accordingly, the Court concluded that improper animus or purpose motivated Section 3 of DOMA because the law’s avowed “purpose and practical” effect was to “impose a . . . stigma upon all who enter into same-sex marriages made lawful” by the states.12 Determining that “no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” 13 the Court held that Section 3 of DOMA violates “basic due process and equal protection principles applicable to the Federal Government.” 14 In striking down Section 3, the Court did not expressly set out what test the government must meet to justify laws calling for differentiated treatment based on sexual orientation.

Two years after Windsor, the Court, in Obergefell v. Hodges invalidated several state laws limiting the licensing and recognition of marriage to two people of the opposite sex.15 While the decision primarily rested on substantive due process grounds,16 the Court noted that the “right of same sex couples to marry” is “derived, too,” from the Fourteenth Amendment’s Equal Protection Clause.17 The Court characterized the Due Process Clause and the Equal Protection Clause as being closely related, and ruled that the Equal Protection Clause prevents states from excluding same-sex couples from civil marriage on the same terms and conditions as opposite sex couples.18 In reaching that conclusion, the Court noted that, just as evolving societal norms inform the liberty rights of same-sex couples, so too do “new insights and societal understandings” about homosexuality reveal “unjustified inequality” with respect to traditional concepts of the institution of marriage.19 The Court viewed marriage laws prohibiting the licensing and recognition of same-sex marriages as working a grave and continuing harm to same-sex couples, serving to “disrespect and subordinate them.” 20

Footnotes

1

517 U.S. 620 (1996).

2

Evans v. Romer, 854 P.2d 1270 (Colo. 1993).

3

Romer, 517 U.S. at 634 (quoting U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).

4

Id. at 635.

5

570 U.S. 744 (2013).

6

Defense of Marriage Act, Pub. L. No.

104-199

, § 3, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7).

7

Section 3 also provided that “marriage” would mean only a legal union between one man and one woman.Id.

8

Windsor, 570 U.S. at 767–68.

9

Id. at 768 (citing Romer, 517 U.S. at 633).

10

Id.

11

Id. at 768–70.

12

Id. at 770.

13

Id. at 775.

14

Id. at 769–70. Because the case was decided under the Due Process Clause of the Fifth Amendment, which comprehends both substantive due process and equal protection principles (as incorporated through the Fourteenth Amendment), this statement leaves unclear precisely how each of these doctrines bears on the presented issue.

15

See No. 14-556, slip op. at 2, 28 (U.S. June 26, 2015).

16

Id. at 10–19.

17

Id. at 19.

18

Id. at 23. However, the Obergefell Court did not apply any traditional equal protection analysis assessing the nature of the classification, the underlying justifications, or the fit between the classification and its purpose. Instead, the Obergefell Court concluded that state classifications distinguishing between opposite- and same-sex couples violated equal protection principles on their face and therefore were unconstitutional. Id. at 21–22; see also Amdt14.S1.8.13.1 Overview of Fundamental Rights.

19

See Obergefell, slip op. at 19–21.

20

Id. at 22.