TULANE JOURNAL OF LAW & SEXUALITY A Review of Sexual Orientation and Gender Identity in the Law VOLUME 25 2016 The Profound and Intimate Power of the Obergefell Decision: Equal Dignity as a Suspect Class Autumn L. Bernhardt* I. INTRODUCTION ..................................................................................... 2 II. OVERVIEW OF THE OBERGEFELL DECISION ......................................... 3 A. Integrated Constitutional Analysis ....................................... 5 B. The Form and Substance of the Obergefell Decision ........... 6 C. Gays and Lesbians Have a Fundamental Right To Marry and Are Entitled to Equal Protection Under the Law ................................................................................. 9 D. The Implications of Obergefell on Legislation Justified By Moral Disapproval, Respect for Tradition, and Equal Application ....................................... 11 III. GAY PEOPLE REPRESENT A SUSPECT CLASS UNDER EQUAL PROTECTION ANALYSIS AND LEGISLATION IMPLICATING GAY PEOPLE MUST BE REVIEWED UNDER HEIGHTENED SCRUTINY ........ 15 A. The Long Journey to Resolving the Proper Level of Constitutional Review and the Suspect Class Status of Gay Americans ............................................................... 17 B. Obergefell’s Discussion of the Four Factors of the Suspect Class Doctrine ....................................................... 22 1. Factor 1: Obergefell Recognizes that Gay Americans Have Experienced a History of Discrimination .................................................................. 23 * © 2016 Autumn L. Bernhardt, Professor of Law, Colorado State University, University Honors Program. Special thanks to my wife for her patience while I completed this law review and for her patience waiting for the Supreme Court to recognize our equal dignity in marriage. 1 2 LAW & SEXUALITY [Vol. 25 2. Factor 2: Obergefell Recognizes That Sexual Orientation Is Not Relevant to the Ability To Perform or Contribute to Society ..................................... 26 3. Factor 3: Obergefell Recognizes that Gay Americans Have Obvious, Immutable, or Distinguishing Characteristics that Define Them as a Discrete Group .......................................................... 28 a. The Comparative Immutability of Sexual Orientation, Gender, and Race ................................ 30 b. The Litigated History of Homosexuals as Either a Class Defined by Sexual Acts or a Class Defined by Distinguishing Characteristics .......................................................... 33 4. Factor 4: Obergefell Recognized the Political Powerlessness of Gay Americans .................................... 37 IV. CONCLUSION ...................................................................................... 41 I. INTRODUCTION The Obergefell 1 decision should be celebrated for its role in recognizing the equal dignity of gay Americans and properly regarded as one of the most influential cases within the American legal system. President Obama praised the Supreme Court of the United States for its same-sex marriage ruling, saying it arrived “like a thunderbolt.”2 After the decision came out, one news commentator proclaimed that “this was a historic moment” and the decision “is probably right up there with Brown v. Board of Education.”3 Many gay people personally affected by the decision experienced the shared sentiment that it was really the first time that they felt themselves to be true Americans. By holding that the state bans against same-sex marriage violated constitutional principles of due process and equal protection, the United States Supreme Court’s opinion both caught up with growing trends within the social, political, and legal landscape and also added significant momentum to the gay civil rights struggles that are still being waged. After centuries of extraordinary discrimination, oppression, and violence, the ability now to participate in a cherished institution is nothing less 1. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 2. Bill Chapel, Supreme Court Declares Same-Sex Marriage Legal in All 50 States, NPR THE TWO-WAY (June 26, 2015), http://www.npr.org/sections/thetwo-way/2015/06/26/ 417717613/supreme-court-rules-all-states-must-allow-same-sex-marriages. 3. Id. 2016] POWER OF THE OBERGEFELL DECISION 3 than the long awaited affirmation of the basic humanity of gay Americans. The profound and intimate power of Obergefell should be respected not only because the decision was a strong move toward relieving gay Americans and their families from the material costs, insecurity, and stigma of second class citizenship, but because Obergefell advances principles of liberty, equality, and personal autonomy for all Americans. This article provides an overview of the constitutional analysis, focuses attention upon the Court’s discussion of the four factors of the suspect class doctrine, and also celebrates Obergefell’s role in changing the American legal and cultural landscape. There are many sophisticated nuances that underlie the Court’s discussion of same-sex marriage. The Obergefell decision uses the phrase “gays and lesbians” to refer to the class of individuals that avail themselves of same-sex marriage. For the sake of simplicity and efficiency, I often will use the phrase gays and lesbians or the inclusive term “gay” in this article to refer to lesbians as well as other groups of people who were historically excluded from marriage and discriminated against for gender nonconformity. I will also sometimes use the term “homosexual” as this term was frequently used in older cases and laws that are relevant to the discussion. Obergefell relies upon the term “sex” quite often. Sex as a biological categorization can be distinguished from gender, which “includes the socially constructed roles, behaviors and attributes that society considers appropriate for men and women.”4 In order to maintain consistency with the Obergefell decision, which frequently uses the phrase “same-sex couples,” I will use the same naming conventions as that of the decision. II. OVERVIEW OF THE OBERGEFELL DECISION In Obergefell, fourteen same-sex couples and two men whose same- sex partners are deceased (“same-sex couples”) challenged the Kentucky, Michigan, Ohio, and Tennessee (herein “States”) laws defining marriage as a union between one woman and one man.5 The same-sex couples initially won the right to marry in each of the district courts in which they filed suit but the States seeking to ban gay marriage appealed the district court wins for same-sex couples.6 During the appeals process, the United States Court of Appeals for the Sixth Circuit consolidated the cases and 4. Jeff Brodin, New Role for Title VII: Sexual Orientation and Gender Identity, ARIZONA ATTORNEY 34 (Dec. 2014). 5. Obergefell, 135 S. Ct. at 2593. 6. Id. 4 LAW & SEXUALITY [Vol. 25 reversed the favorable gay marriage judgments of each of the district courts.7 The same-sex couples then requested certiorari review from the United States Supreme Court, which was granted.8 The Court had previously denied certiorari review of the marriage equality rulings by the United States Court of Appeals for the Fourth, Seventh, and Tenth Circuits and denied requests by Alabama and Florida to stay marriage equality decisions while the United States Court of Appeals for the Eleventh Circuit was addressing the appeals of the two states.9 The Court gave some indication that it was leaning toward marriage equality and might have a majority of Justices on board to support a pro-marriage ruling. By denying review of marriage equality rulings and denying requests to stay marriage equality rulings, the Court seemed to indicate that it was allowing precedential momentum to build throughout the country in favor of gay marriage. When the Court granted certiorari to review the ruling of the Sixth Circuit upholding marriage bans, some observers of the Court were cautiously optimistic that it might decide for marriage equality but ultimately nothing was known for certain.10 Once review was granted, more amicus curiae briefs were filed during the briefing process than any other Supreme Court case in history.11 Amici included churches, businesses, scholars, professional organizations, and a whole host of other interested parties that felt that the questions before the Court were worthy of advocacy.12 After hearing oral argument, the Supreme Court issued the long awaited decision on June 26, 2015. In a concisely worded 5-4 opinion, the Supreme Court held that the Fourteenth Amendment to the United States Constitution requires a State to license a marriage between two people of the same-sex and requires a state to recognize a same-sex marriage licensed and performed in a State where same-sex marriage is legal.13 7. Id. 8. Id. 9. Lily Hiott-Millis, SCOTUS Denies Review of Marriage Cases, Bringing the Freedom to Marry to 5 States, FREEDOM TO MARRY (Oct. 6, 2014) http://www.freedomtomarry.org/blog/ entry/supreme-court-denies-review-of-marriage-cases-bringing-marriage-equality-to. 10. Ohio Outlook Mag., Ohio Law Professors Predict a Ruling for Marriage Equality (June 4, 2015), http://outlookcolumbus.com/2015/06/ohio-law-professors-predict-a-ruling-for- marriage-equality/. 11. Nina Totenberg, Record Number of Amicus Briefs Filed in Same-Sex Marriage Case, NPR IT’S ALL POLITICS (Apr. 28, 2015), http://www.npr.org/sections/itsallpolitics/2015/04/28/ 402628280/record-number-of-amicus-briefs-filed-in-same-sex-marriage-cases. 12. Id. 13. Obergefell v. Hodges, 135 S. Ct. 2584, 2607-08