SCOTUS and gay marriage

November 30th, 2012

mcclain-2009-65wThe Supreme Court is expected to decide soon on whether it will hear cases on gay marriage. The following opinion piece was written by Linda McClain, professor of Law at Boston University’s School of Law and an authority on family law and policy.

Like other legal scholars, I believe it would be prudent for the Court not to take the Prop 8 case. The Ninth ruling was quite narrow and did not in any way ‘impose’ same-sex marriage on the rest of the states. It limited its holding to a situation in which voters, at the ballot, took away a constitutional right that same-sex couples enjoyed in California after the 2008 ruling by the California Supreme Court, interpreting California’s constitution.

Prop 8 amended the constitution and, in the view of the 9th Circuit, took away that right for ‘no legitimate purpose.’ This in turn was related to the fact that same-sex couples had the rights and responsibilities of marriage – but not the name of marriage – through domestic partnership law and thus, arguments about procreation, responsible for parenthood, made no sense.

The 9th Circuit relied heavily on Romer v. Evans, the U.S. Supreme Court’s 1966 decision, and concluded (quoting Romer) that it was ‘left with the inevitable inference that the disadvantage imposed is born of animosity toward,’ or, as is more likely with respect to Californians who voted for the Proposition 8, ‘mere disapproval of … gays and lesbians as a class.’

SCOTUS may decide to let the 9th Circuit ruling stand. On the other hand, if conservative members of the Court object to the 9th Circuit’s reading of Romer, they may want to reach out and reverse, contending that there are legitimate reasons to distinguish between opposite-sex and same-sex couples.

If the Court did take the case, I assume that moderates or liberals on the Court would want to affirm on the 9th Circuit’s narrow ground and, given the rapid evolution among the states on the marriage equality issue, NOT issue any kind of opinion about a fundamental right to marry.

But for the problem of Justice Kagan’s statement that she would not be involved in the Massachusetts DOMA case, which would reduce the moderate/liberal votes on the issue, I believe the 1st Circuit case would be better for SCOTUS to take. Judge Boudin crafted a very careful opinion, using Romer v. Evans as an anchor and stressing the values of federalism and eschewing any discussion of animus with respect to the enactment of DOMA.

The Court could affirm the 1st Circuit and stress values of federalism and the traditional deference by Congress to state law about family. That said, the 2nd Circuit opinion would give the Court a chance to consider what the appropriate standard of review should be with respect to classifications based on sexual orientation.

The 2nd Circuit interpreted the Court’s precedents as supporting an intermediate scrutiny, as did the DOJ. Both Romer and DOMA date back from 1966; Lawrence v. Texas from 2003. Lawrence did not move to a heightened scrutiny, but like Romer, is read by commentators as being ‘rational basis plus.’ Maybe the Court is ready to say something further about what the standard should be.

McClain can be reached at 617-358-4635 or

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