Same‑Sex Marriage Court Battles: Key Rulings and Constitutional Issues

The issue of same-sex marriage has been a prominent legal topic over the last decade, with courts increasingly questioning the constitutionality of laws prohibiting same-sex couples from marrying. Advocates for same-sex marriage often argue that such bans violate the 14th Amendment, which guarantees fundamental liberties and equal treatment under the law. The Supreme Court is expected to address this issue definitively.

Backstory: Proposition 8 and United States v. Windsor

In 2008, the California Supreme Court ruled that the state constitution required the state to permit same-sex marriage. In response, California voters passed Proposition 8, amending the state constitution to ban same-sex marriage. This proposition was challenged under the 14th Amendment of the U.S. Constitution. Due to the Supremacy Clause (Article 6), the U.S. Constitution supersedes state law when there is a conflict.

A lower court struck down Proposition 8, and the case reached the Supreme Court. However, the Supreme Court avoided ruling on the merits of whether the U.S. Constitution protected a right to same-sex marriage. Instead, it exploited a technicality, stating that after the lower court's decision, no one had standing to appeal. This effectively legalized same-sex marriage in California without establishing a nationwide constitutional right.

On the same day, the Supreme Court issued a more impactful opinion in United States v. Windsor. The Court struck down a portion of the Defense of Marriage Act (DOMA), a federal law that prevented the federal government from recognizing same-sex marriages, even in states where they were legal.

The Windsor opinion was confusingly written, making it unclear why the law was struck down. Some parts suggested a violation of the 14th Amendment's liberty and equality protections, while others hinted at a violation of federalism principles, arguing that DOMA encroached on the states' reserved power to regulate marriage.

The Domino Effect and Circuit Split

Regardless of the specific reasoning, the Windsor case initiated a "domino effect" in lower federal courts. These courts began striking down state-level bans on same-sex marriage, consistently citing violations of constitutional guarantees of liberty and equality, thereby implicitly rejecting the federalism argument.

For a period, the Supreme Court remained silent as lower courts overturned same-sex marriage bans. However, a significant development occurred last November: a circuit split emerged.

Understanding Circuit Courts

The United States is divided into several federal judicial circuits, each with its own court of appeals. A ruling by a federal circuit court is binding law within all states in that circuit. For example, a decision by the Second Circuit (covering New York, Connecticut, and Vermont) is binding in all three states but not in states outside that circuit, such as Massachusetts (First Circuit) or Georgia (Eleventh Circuit).

Circuit splits are crucial for Supreme Court intervention. When two circuit courts issue conflicting rulings on a question of federal law, the Supreme Court often feels compelled to step in to ensure uniform interpretation of federal law nationwide. Without such a split, the Supreme Court typically waits.

The Emergence of the Split

Until last November, every circuit court that had considered the issue had ruled that the Constitution protects the right to same-sex marriage. Then, the Sixth Circuit broke this pattern, upholding several state laws that banned same-sex marriage. This created the circuit split, leading many to believe the Supreme Court would now be forced to resolve the issue.

While the Supreme Court was widely expected to announce it would hear a same-sex marriage case last week, it did not. However, it remains possible for the Court to accept a case for the 2015 term, likely requiring action by the end of the current month. Most observers anticipate that if the Court does take up the issue, it will rule state bans on same-sex marriage unconstitutional.

Professor Amar's Constitutional Arguments

Professor Amar offers several arguments regarding the unconstitutionality of same-sex marriage bans, primarily rooted in the 14th Amendment and other constitutional provisions.

The 14th Amendment and Immutable Traits

The first section of the 14th Amendment states: "All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside." This clause establishes citizenship and, by extension, implies equal citizenship. Professor Amar might argue that the concept of "unequal citizenship" is preposterous.

The 14th Amendment also states: "No state shall deny to any person within its jurisdiction the equal protection of the laws." While all laws differentiate between people, Professor Amar might suggest that the "born" clause in the first sentence provides the answer to what kind of equality the Constitution requires. He might argue that the government cannot discriminate based on traits fixed at birth, known as immutable traits, such as race or sex.

Given the widely accepted scientific understanding that sexual orientation is biological and not a choice, and thus fixed at birth, Professor Amar might argue that the 14th Amendment prohibits discrimination based on sexual orientation. Same-sex marriage bans allow heterosexual individuals to marry but deny this right to homosexual individuals, thereby discriminating based on an immutable trait and making them unconstitutional under the 14th Amendment.

Other Supporting Constitutional Provisions

Professor Amar might also cite three other constitutional provisions from Article 1, Section 10, Clause 1, to support his "birthright theory of equal citizenship":

1. Bills of Attainder: States are prohibited from passing bills of attainder, which are legislative acts that single out an individual or group, declare them guilty of a crime, and punish them without a judicial trial. Professor Amar might argue that a same-sex marriage ban is akin to a law that declares all gay and lesbian individuals guilty of a moral transgression and imposes a collective punishment.
2. Ex Post Facto Laws: States are prohibited from passing ex post facto laws, which retroactively change the legal consequences of past actions. Same-sex marriage bans could be seen as similar to ex post facto laws because they retroactively remove legal rights from individuals for the "act" of being gay or lesbian.
3. Titles of Nobility: States are prevented from granting titles of nobility, a provision aimed at preventing the establishment of rigid hierarchical social structures. Professor Amar might contend that anti-same-sex marriage laws effectively create a dominant class of heterosexual individuals with the privilege of marriage, and a lower-ranking class of gay and lesbian individuals denied these rights, thus creating a form of social hierarchy.

While these arguments are creative, it remains uncertain whether a court would accept them.