WALLS 1/11/2017 10:20 AM OBERGEFELL v. HODGES: RIGHT IDEA, WRONG ANALYSIS Megan M. Walls TABLE OF CONTENTS I. INTRODUCTION .................................................................................... 133 II. BACKGROUND ...................................................................................... 136 III. ANALYSIS ............................................................................................ 138 A. The Set-Up in Loving and Windsor ............................................. 138 B. The Foundation for Sexual Orientation as a Suspect Class......... 140 C. Implications of the Obergefell Decision: Missed Opportunity ... 140 D. Depthless Dissent: Bolstering the Majority ................................. 142 IV. CONCLUSION ........................................................................................ 145 I. INTRODUCTION In Obergefell v. Hodges, the Court, reprising its role as zealous defender of the disenfranchised, declared that bans on same-sex marriages are unconstitutional.1 However, the Court relied on flawed reasoning to do so.2 Rather than apply its traditional and time-tested judicial scrutiny methods to declare sexual orientation a protected class, Justice Kennedy’s analysis featured a generalized Due Process analysis to reaffirm the right to marry.3 Of course, the right to marry has been well established.4 This right was first explicitly identified by the Supreme Court of the United States in Meyer v. Nebraska nearly a century ago.5 The Meyer Court took the right to marry as one 1. Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015). 2. See, e.g., Peter Nicolas, Obergefell’s Squandered Potential, 6 CALIF. L. REV. CIR. 137, 139–40 (2015) (discussing the indefensibly of the Court’s failure to declare sexual orientation a suspect classification in light of the speed at which other groups have been granted suspect classification). 3. See Obergefell, 135 S. Ct. at 2597–99; see also discussion infra Part III. 4. See Meyer v. Nebraska, 262 U.S. 390, 399 (1923); see also Loving v. Virginia, 388 U.S. 1, 12 (1967); Zablocki v. Redhail, 434 U.S. 374, 383 (1978). 5. 262 U.S. at 399. 133 WALLS 1/11/2017 10:20 AM 134 GONZAGA LAW REVIEW Vol. 52:1 of several stemming from the right to liberty under the Due Process Clause.6 Despite the decision’s general consistency with Court jurisprudence, Obergefell reflects the failure of the majority to take the opportunity to ensure future protection for gay persons on fronts beyond marriage.7 The evolution of rights for the lesbian, gay, bisexual, and transgender (LGBT) community has been rocky but has also made relatively quick progress.8 In 1986, the Supreme Court held in Bowers v. Hardwick that there is no constitutional right to engage in private homosexual behavior and upheld a Georgia law criminalizing the same.9 However, in 1996, the Court struck down Colorado’s Amendment 2 in the case of Romer v. Evans, which would have actively denied LGBT members constitutional protections.10 Then, in Lawrence v. Texas, the Court overruled Bowers.11 Though the Court declined to recognize a right to engage in homosexual behavior, it held criminalizing the behavior was unconstitutional under the Due Process Clause.12 More recently, as will be discussed later in this comment, the Court held in United States v. Windsor that the federal government cannot interfere with the rights of same-sex couples protected by the Fifth Amendment Due Process and Fourteenth Amendment Equal Protection Clauses.13 This was the first Supreme Court case to set legal precedent regarding same- sex marriage.14 6. Id. 7. Rodney M. Perry, Obergefell v. Hodges: Same-Sex Marriage Legalized, CONG. RES. SERV. 7 (Aug. 7, 2015), https://www.fas.org/sgp/crs/misc/R44143.pdf. 8. See sources cited infra notes 9–12. 9. See Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (upholding a Georgia statute criminalizing private homosexual behavior on the grounds that laws reflecting “moral choices” of the electorate are sufficient to survive rational basis review under the Due Process Clause). 10. Romer v. Evans, 517 U.S. 620, 635 (1996) (holding Colorado’s Amendment 2 unconstitutional because it “classifies homosexuals not to further a legislative end but to make them unequal to everyone else”). 11. Lawrence v. Texas, 539 U.S. 558, 578 (2003) (adopting Justice Stevens’ reasoning that “individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment . [and] this protection extends to intimate choices by unmarried as well as married persons” (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting))). 12. Id. at 578. 13. United States v. Windsor, 133 S. Ct. 2675, 2696 (2013). 14. Tom Watts, From Windsor to Obergefell: The Struggle for Marriage Equality Continued, 9 HARV. L. & POL’Y REV. S52, S56 (2015), harvardlpr.com/online-articles/. WALLS 1/11/2017 10:20 AM 2016/17 OBERGEFELL v. HODGES 135 Despite gains made in Windsor, the law before Obergefell regarding same- sex marriage was still in flux.15 At the time Obergefell was decided, several Circuit Courts were in disagreement about the state of same-sex marriage.16 The Fourth, Seventh, Ninth and Tenth Circuit Courts of Appeals had ruled that States could not ban same-sex marriage,17 but the Sixth Circuit was in direct conflict,18 which launched the Obergefell case.19 The Sixth Circuit ruled the bans were constitutional in part because of Baker v. Nelson, a 1971 case wherein the Minnesota Supreme Court held the state ban on same-sex marriage was not a violation of the Constitution.20 In 1972, the Supreme Court dismissed the appeal because it found Baker lacked a federal question.21 Baker was expressly overruled by Obergefell when the Court’s ruling made same-sex marriage bans sweepingly unconstitutional.22 Obergefell is a consolidation of cases coming from Michigan, Ohio, Tennessee, and Kentucky, states where marriage was defined as a union only between one man and one woman.23 The plaintiffs in Obergefell were fourteen same-sex couples, and two men whose same-sex partners were no longer living when the ruling was made.24 The respondents were the officials responsible for enforcing the state bans on same-sex marriage.25 15. Compare Goodridge v. Dep’t of Pub. Health, 798 N.E. 2d 941, 948 (2003) (declaring bans on same-sex marriage a violation of the Massachusetts state constitution), with ex parte Ala. ex rel. Ala. Policy Inst., No. 1140460,—So. 3d —, 2015 WL 892752, at *23 (Ala., Mar. 3, 2015) (holding that statutes prohibiting the issuance of marriage licenses to same-sex couples did not violate due process or equal protection, and that heightened scrutiny was unnecessary). 16. Compare DeBoer v. Snyder, 772 F.3d 388, 396, 403 (6th Cir. 2014) (holding same- sex marriage bans do not violate the Fourteenth Amendment), with Kitchen v. Herbert, 755 F.3d 1193, 1199 (10th Cir. 2014) (holding same-sex marriage bans cannot be justified because substantive due process includes a fundamental right to marry). 17. See Bostic v. Shaefer, 760 F.3d 352, 367 (4th Cir. 2014); Baskin v. Bogan, 766 F.3d 648, 672 (7th Cir. 2014); Latta v. Otter, 771 F.3d 456, 464–65 (9th Cir. 2014); Kitchen, 755 F.3d at 1199. 18. DeBoer, 772 F.3d 388, 396, 401, 414. 19. See Obergefell v. Hodges, 135 S. Ct. 2584, 2596–97 (2015). 20. DeBoer, 772 F.3d at 399–400 (stating “[t]he Court has yet to inform us that we” are not bound by its summary decisions, “and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.”). 21. Baker v. Nelson, 409 U.S. 810, 810 (1972). 22. Obergefell, 135 S. Ct. at 2605. 23. Id. at 2593. 24. Id. 25. Id. WALLS 1/11/2017 10:20 AM 136 GONZAGA LAW REVIEW Vol. 52:1 The petitioners challenged the laws on the grounds that the Fourteenth Amendment is violated when the right to marry is denied.26 The district courts in each case found in favor of the plaintiffs, but the Court of Appeals for the Sixth Circuit reversed.27 The United States Supreme Court affirmed the district courts.28 In a slim 5-4 decision, the Court held same-sex couples cannot be denied the fundamental right to marry under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.29 From that reasoning, the Court also drew the conclusion that States must recognize lawful same-sex marriages performed in other States.30 The Court effectively struck down any remaining state laws banning same-sex marriage,31 and affirmatively legalized same-sex marriage in every State.32 This comment suggests the Obergefell majority correctly concluded that same-sex marriage is a right that cannot be abridged by the States.33 However, the Court erred in failing to identify sexual orientation as a suspect class.34 First, this comment outlines the standards used by the Court in identifying suspect classes and applying strict scrutiny to discriminatory laws. It then outlines how the method used in Obergefell provides a weaker jurisprudential foundation compared to the application of judicial scrutiny. Finally, this comment addresses some key arguments from the dissent in order to further demonstrate that the majority reached the correct conclusion despite its errors in analysis. II. BACKGROUND Standards for judicial scrutiny in relation to the Equal Protection Clause can be difficult to parse out, especially given that over time there has evolved a three- tiered classification system that is now relied upon by courts when the constitutionality of a law is challenged.35 26. Id. 27. Id. 28. Id. at 2593, 2608. 29. Id. at 2607–08. 30. Id. 31. Id. 32. Id. 33. See discussion infra Part III.