Two Wrongs Don’t Make a Right: Implications of the Sex Discrimination Present in Same-Sex Marriage Exclusions for the Next Supreme Court Same-Sex Marriage Case

Abstract

This year was a historic time in the gay rights movement. While the nation held its collective breath, the Supreme Court deliberated over the questions of whether same-sex couples have constitutional rights to marry and have their marriages recognized by the federal government. In its landmark decision issued this past summer, the Supreme Court struck down the part of the federal Defense of Marriage Act (DOMA), finding that same-sex couples married under state law must have their marriages recognized by the federal government. However, in its other same-sex marriage decision, the Supreme Court avoided the question, for now, of whether same-sex couples have a constitutional right to marry in the first place, finding instead that the petitioners in the case did not have standing to appeal the lower court decision. Thus, it is almost certain that the Supreme Court will address the question of whether same-sex couples have a constitutional right to marry in a later case brought by a proper petitioner.

When the Court does decide to address the constitutionality of the same-sex marriage prohibitions still present in most state laws, it must find them unconstitutional. As this article will show, under clear Supreme Court precedent, same-sex marriage exclusions discriminate based on sex and must therefore be scrutinized with a heightened standard of review. As courts have uniformly found, same-sex marriage exclusions cannot pass heightened review. Thus, when the Supreme Court does address the question of whether same-sex couples have a constitutional right to marry, it must answer in the affirmative because the exclusions cannot pass the heightened scrutiny required under a sex discrimination analysis.

Keywords: same-sex marriage, Fourteenth Amendment, Equal Protection, sex discrimination