The Profound and Intimate Power of the Obergefell Decision: Equal Dignity as a Suspect Class

25 TUL. J.L. & SEXUALITY (2016).

42 Pages Posted: 14 Jun 2016 Last revised: 23 Jun 2016

See all articles by Autumn Bernhardt

Autumn Bernhardt

Colorado State University Honors Program

Date Written: 2016


This law review discusses how the Supreme Court’s same-sex marriage ruling dramatically elevated the legal treatment of Gay Americans both within the context of marriage and beyond the context of marriage. The Obergefell decision should be regarded as one of the most influential milestones in American history not only because of its revolutionary cultural impact in recognizing the equal dignity of gays but because of its legal precedence and analysis. In Obergefell, the Supreme Court determined that state same-sex marriage bans impaired fundamental rights and also discriminated against the historically stigmatized class of gays and lesbians.

The decision refines Constitutional analysis and now provides clarification and a mandate to lower courts as well as other branches of government. Courts should not rigidly review Constitutional rights in complete isolation from each other. Instead, courts must recognize the interconnected nature of various Constitutional rights related to religion, privacy, expression, substantive due process, and equal protection and their shared intent to protect individuals from illegitimate governmental intrusion. Furthermore, laws that treat Gay Americans unequally should no longer be given deference or a presumption of validity as they were in older decisions. Governments that seek to uphold laws that discriminate against gays bear the heavy burden of justifying those invidious laws.

Gay people are entitled to meaningful equal protection under the law. By discussing the four factors of the Suspect Class Doctrine under 14th Amendment equal protection review, the Obergefell decision refers to Gay Americans as a suspect class deserving of heightened scrutiny. Although the factors of the Suspect Class Doctrine are not all evenly weighted, the Supreme Court acknowledges that gays have suffered a long and continuing history of discrimination and political powerlessness and that gay identity is not relevant to the ability to perform or contribute to society. Additionally, gay people are not defined by sexual acts alone but by obvious, immutable, or distinguishing characteristics that define them as a discrete group entitled to legal protection.

In addition to discussing factors relevant to providing gays greater respect under the Constitution, the Court made substantial comparisons between gay marriage bans and interracial marriage bans as well as discriminatory sex based restrictions in marriage. The comparisons between sexual orientation, race, and sex are important because legal restrictions based upon race and sex are firmly treated as “suspect” meaning that these distinctions are presumed to perpetuate deep-seated and unconstitutional prejudice rather than further government interests. In other words, government has no business creating a caste system based upon either race, sex, or sexual orientation among democratic citizens. According to Obergefell, gay marriage bans burdened Constitutional rights, treated gay people as unequal citizens in comparison to straight people, punished consensual behavior that caused no societal harm, and inflicted undeserved collateral damage upon the children of Gay Americans.

Keywords: suspect class, same-sex marriage, heightened scrutiny, Obergefell, fundamental right, Supreme Court, equal protection, gay marriage, due process, gay rights, Constitution, discrimination, lesbian, gay, religion, transgender, moral, immutable, political power, scrutiny, race, sex, gender, intersex

Suggested Citation

Bernhardt, Autumn, The Profound and Intimate Power of the Obergefell Decision: Equal Dignity as a Suspect Class (2016). 25 TUL. J.L. & SEXUALITY (2016)., Available at SSRN:

Autumn Bernhardt (Contact Author)

Colorado State University Honors Program ( email )

Fort Collins, CO 80523-1771
United States
970-491-5679 (Phone)
970-491-2617 (Fax)

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