Sex or Sexual Orientation Discrimination?

June 24, 2015

Waiting on the Supreme Court’s Possible Rationale for Marriage Equality

As this Supreme Court Term nears its end, the public anticipation for the decision on marriage equality in Obergefell v. Hodges has mainly pointed to the highly possible—maybe probable—event that the Court will find marriage bans against same-sex couples unconstitutional.

Hands down, that type of decision should be a definite, long-awaited victory for LGBTQ rights supporters. Yet for those still in the movement for full equality for sexual minorities, the significant legal and political question will be how far does this victory take us?

Suspect classifications for heightened scrutiny in constitutional cases have remained the same since the late-1970s. No new suspect class has been added. But Obergefell has the potential to usher in sexual orientation as another class that deserves higher judicial review in our concept of tiered scrutiny. Although last fall’s Sixth Circuit decision that eventually prompted this Supreme Court appeal did not apply heightened scrutiny in considering whether marriage bans against same-sex couples were unconstitutional, the original Obergefell decision in the federal district court of Ohio did render bans on same-sex marriage discriminatory by relying on recent pro-gay decisions such as U.S. v. Windsor to elevate orientation into a classification worthy of review beyond rational basis. In addition, the gay couples in the current Obergefell appeal before the Court have argued heightened scrutiny as a rationale for supporting marriage equality based in part on sexual orientation. Despite predictions hinged on interpretations from Chief Justice Roberts’ line of questioning during oral arguments that the Court may likely recognize marriage equality but perhaps do so more narrowly on grounds of sex or gender discrimination, the notion of deciding the case favorably for same-sex couples based on sexual orientation is still something that remains a possibility. If the Court does elevate sexual orientation in Obergefell, then immediately this ruling will affect in a serious and “game-changing” way the broader antidiscrimination battles that serves as the next chapter of gay rights advocacy—particularly with a likely clash between the individual right to be LGBTQ and the free exercise of religion. This potential reality might even provoke a revisit of the Hobby Lobby decision.

Aside from these incrementalist predictions and observations, we should not forget that there is a human aspect to this classification as well. In cases that have provided a rationale on sexual orientation as a suspect classification, the interesting take on sexual orientation appears when courts, including the federal district court opinion of the Obergefell case, ran orientation favorably through the analysis under the famous four-factor test for determining suspect trait. These courts accomplished this task even with the factor of immutability, which has been historically problematic for classifying sexual orientation as suspect. To find sexual orientation more likely immutable, one thread of reasoning here could start with the age-old question of whether a person chooses to be gay or has same-sex attraction rooted in a biological basis. In the past, judicial positions that could answer this debate based on either choice or biology often would slant the answers in a morally blameworthy way (i.e. that being gay is a morally bad choice or that being gay is pathology) and thus cut the reasoning short politically for finding sexual orientation worthy of suspect classification. However, in some recent pro-gay cases, the rationale for immutability has side-stepped that nature-versus-nurture debate, ignored the causal debates for one’s sexual orientation, and instead rendered sexual orientation as an immutable trait because it is so fundamental to a person’s identity that the law ought not to force one to change it. This is a powerful normative shift in recognizing not just why sexual minorities should be a suspect class, but also that there is a human dignity element that plays a basic part in one’s sexual identity—LGBTQ or otherwise.

If the Supreme Court decides Obergefell based on gender discrimination, then it would be a narrower ruling that could limit the resonance of discrimination based on sexual orientation and potentially conflate gender with orientation, leading us down murkier waters. But if the Supreme Court moves toward recognizing sexual orientation as a suspect classification, this would not just mean a triumph for marriage equality alone but also a larger step-up for individual rights and autonomy.