The Supreme Court’s 2015 decision in Obergefell v. Hodges found that the United States Constitution requires states to recognize same-sex marriages. It was a momentous decision in the long history of same-sex marriage litigation and one of the most watched constitutional law cases in years. And in some ways, it wasn’t.
Certainly, the decision did not end other discriminatory legal schemes, and there are many legal battles, some old and some new, still to be fought. A ban in Mississippi preventing same-sex couples from adopting children – the last of its kind – was declared unconstitutional on March 31, 2016. Utah, one of the last states to maintain its ban on same-sex adoption, introduced a bill in January 2016 that would allow the state to give preference to opposite-sex couples over same-sex couples (i.e., discriminate against same-sex couples) seeking to adopt children in the state’s care.
More recently, a string of so-called religions freedom laws introduced in Georgia and Mississippi, and actually passed in North Carolina, would permit discrimination against LGBTQ individuals. North Carolina’s law was passed in response to a Charlotte ordinance, just a few weeks old, which prevented businesses from engaging in discrimination. Under these schemes, businesses can refuse to serve customers, or fire employees, for doing nothing more than being themselves.
Whether LGBTQ discrimination becomes a relic of the past – and I think it will – depends on what level of scrutiny courts apply to discriminatory laws. There are three levels of scrutiny: rational basis, intermediate, and strict. Rational basis is the most deferential to the government. Under that level of review, a law will not be found to violate the constitution so long as it is rationally related to a legitimate government interest. It is commonly implicated by economic regulations, and such laws are rarely overturned under the rational basis standard. Under intermediate scrutiny – commonly applied to sex-based classifications – asks whether a law furthers an important government interest in a way substantially related to that interest. Strict scrutiny, the most rigorous level of review, requires a law to be narrowly tailored and the least means to further a compelling government interest.
Some have criticized Justice Kennedy’s Obergefell opinion for its lofty language which fails to establish clear guidance to lower courts and legislatures in applying the decision to contexts other than marriage. While it is true that Justice Kennedy never said that the Court was applying strict scrutiny, a very strong argument can be made that the only level of scrutiny the Supreme Court will apply to laws that discriminate against gay individuals is strict scrutiny. As the attorney who argued the case before the Supreme Court points out, the reason is simple: the opinion recognizes that marriage is a fundamental right, and it explicitly recognizes that same-sex marriage bans apply to a “suspect classification.” In the Court’s prior Equal Protection decisions, the implication of a fundamental right and the application to a suspect classification were sufficient to trigger strict scrutiny.
That is why these discriminatory laws are destined to fail. Even under intermediate scrutiny, the government would have to show that the discrimination it sanctions furthers an important interest. The government’s interest is in affirming the equal dignity of all its citizens.