SCOTUS hearings on gay-marriage

March 25th, 2013

mcclain-2009-65w1The Supreme Court will hear arguments this week on California’s ban on gay marriage, known as Proposition 8, and on DOMA (Defense of Marriage Act). Boston University School of Law professor Linda McClain, an authority on family law and policy, offers the following view on what the Supreme Court might look at and the decision they may make on gay marriage.

It is likely that the case that will come up the most in the two oral arguments is Romer v. Evans (1996), where the Supreme Court struck down Amendment 2, a ballot initiative that amended Colorado’s constitution to forbid any sort of anti-discrimination protection for homosexuals.  The campaign for Amendment 2 followed several cities adopting anti-discrimination laws protecting on the basis of sexual orientation.

First, Romer will be relevant as a comparison between Amendment 2 and the effect of Prop 8 —  whether Prop 8 is like or unlike Amendment 2, in singling out a particular group  (homosexuals/same-sex couples) and stripping away their constitutional right to marry, and between Amendment 2 and DOMA — whether DOMA unconstitutionally singles out one group of married couples (same-sex couples lawfully married under state law) and denies them federal recognition of their marriage.

Romer will also be relevant on whether the Court established a fourth level of judicial review – something between rational basis and heightened scrutiny.  BLAG (Bipartisan Legal Advisory Group) and the proponents of Prop 8 say no; opponents say yes.  The Court may be interested in the approach taken in the First Circuit and the lower court in Windsor: that Romer supports a more careful or searching review when a law subjects historically disadvantage minorities to discrepant treatment.

Supporters of DOMA and Prop 8 say deferential rational basis review is the appropriate standard.  Opponents argue either, at a minimum, for the Romer type intensified review or, preferably, for intermediate scrutiny because sexual orientation is a quasi-suspect classification.

In the Prop 8 case, it is also possible SCOTUS will focus primarily on federalism and question what interest or authority the federal government has in defining marriage when the definition of marriage historically is a matter of state law.

Contact McClain at 617-358-4635 or

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