The Obama administration, urging the Supreme Court to adopt for the first time a more rigorous test of laws that discriminate against gays and lesbians, on Friday joined in the plea to give same-sex couples equal access to marriage. In a thirty-six-page brief, the government argued that state bans on such marriages cannot survive the new test it proposed.

The brief was limited to defending same-sex marriage under an “equal protection” standard, leaving unmentioned the other constitutional argument that some challengers to state bans have made: that marriage is a fundamental right that cannot be closed to such couples, a “due process” argument.

The brief was part of a sizable stack of friend-of-the-Court briefs that were sent to the Justices on the couples’ side of the constitutional debate.  The states defending their bans will have a chance to reply, and the four cases — from Kentucky, Ohio, Michigan, and Tennessee — will be heard by the Justices on April 28.

As of now, same-sex marriages are legal in thirty-six states, as a result of state laws, voter-approved ballot measures, and a lengthy list of federal and state court rulings.  If the couples win their appeals, same-sex marriage would be available nationwide, capping a very fast-moving gay rights revolution.

The government’s new filing, signed by U.S. Solicitor General Donald B. Verrilli, Jr., and other Justice Department officials and staff lawyers, sought to persuade the Court to embrace a constitutional test that this administration has been pressing for some time in gay rights cases.

It called for what is known as “heightened scrutiny” — the middle level of three ascending tests for judging claims that laws discriminate on the basis of a forbidden personal trait.  The easiest standard to meet is “rational basis,” and the toughest is “strict scrutiny.”

Under the middle level, a law that is challenged as discriminatory can be upheld only if it serves an “important government objective” and its terms are “substantially related” to such a policy goal.

In a series of decisions in recent years that have added to gay rights, the Supreme Court has never specified an explicit standard for use in the field of sexual orientation.  At times, it has seemed to adopt something like “rational basis-plus,” but it has never given a specific definition of the test or tests it has used.

The lower court ruling that the Supreme Court is reviewing in the new marriage cases, by the U.S. Court of Appeals for the Sixth Circuit, refused to apply a heightened test.  It upheld the marriage bans in the four states in its region largely because it said the issue of defining who has access to marriage is one that is assigned to the people as voters, or to the legislatures of the states.  “Who chooses,” it said, was the key question.

The Sixth Circuit also said that it was bound to uphold a ban on same-sex marriage, because of a one-line ruling by the Supreme Court in 1972 — without briefing or oral argument — rejecting a plea of a same-sex couple in Minnesota to wed.  That was the summary ruling in Baker v. Nelson.

The Obama administration’s new brief did not challenge that precedent head on, but simply noted that it was not binding on the Supreme Court itself, whatever lower courts may have thought about its controlling effect.  That precedent, it said, had little impact on the new cases, which the Court is reviewing under full-scale review, with briefs and oral argument.

Moreover, the brief said the Baker decision did not address the same issues that are now before the Court about same-sex marriage and, besides, it predated most of the Court’s modern gay-rights rulings.

In seeking to make a case for the Justices to apply a more demanding constitutional test for the same-sex marriage bans, the government brief cited the four rationales that have been put forth to justify such a test:  Those seeking such protection must show a history of discrimination against their group; their sexual orientation has nothing to do with their ability to take full part in society; their sexual orientation was a part of their inherent identity; and they are a specific group that has limited political power in seeking to promote its aims.

Gays and lesbians satisfied all four of those factors, the brief argued.  It added: “Heightened scrutiny under the Equal Protection Clause is particularly appropriate in the context of legal barriers to marriage.  A state should be required to present an especially strong justification for a law that excludes a long-disadvantaged class of persons from an institution of such paramount personal, societal, and practical importance.”

The new filing sought to rely heavily upon the favorable comments that the Supreme Court made about existing same-sex marriages two years ago in United States v. Windsor, striking down a part of the federal Defense of Marriage Act on the premise that it discriminated against those couples whose marriage were allowed under their state laws at that time.

Those favorable comments, the brief argued, should apply as fully to those same-sex couples who now seek to get married, but are banned from doing so by the current laws of their home states, as well as to those who cannot get official state recognition for their existing marriages.

In arguing that those laws, prohibiting marriage licenses for same-sex couples who have not yet married and refusing to recognize the marriages of those who have wed elsewhere, the government brief said it was not necessary for the Court to conclude that those bans were passed out of a hostility (“animus”) toward gays and lesbians.

Even though the Supreme Court in the Windsor decision had relied in part upon its perception that “animus” had played a part in Congress’s passage of the Defense of Marriage Act, the new brief commented:

“It is unnecessary to characterize those who voted for the laws at issue here as having acted out of conscious ill will in order to recognize the laws’ inconsistency with the fundamental guarantee of equal protection.”

Posted in DeBoer v. Snyder, Tanco v. Haslam, Obergefell v. Hodges, Bourke v. Beshear, Same-Sex Marriage Post-Windsor, Featured, Merits Cases, Same-Sex Marriage

Recommended Citation: Lyle Denniston, U.S. joins fight for same-sex marriage, SCOTUSblog (Mar. 6, 2015, 6:46 PM), http://www.scotusblog.com/2015/03/u-s-joins-fight-for-same-sex-marriage/