On 12 February 2004, San Francisco mayor Gavin Newsom ordered the city clerk to issue marriage licenses to gay and lesbian couples. Overnight, an issue that had simmered in the background for years was moved toward the front of the nation's political agenda. Supporters of more traditional conceptions of marriage fought Newsom in the courts; when they failed there, they placed an initiative on California's 2008 ballot that would restrict marriage to heterosexual couples only. The measure passed by a relatively narrow 52%-48% margin, stopping (at least for the moment) gay marriage in its tracks in the nation's most populous state. Still, a nationwide push for gay marriage continues. Prior to the 2008 election, Massachusetts and Connecticut had already legalized same-sex marriage, and soon after California's vote, Vermont and Iowa joined the ranks of those states allowing gay couples to marry.
While many supporters of gay marriage have focused on winning state approval through the political process—by passing new laws to legalize the practice—that strategy has succeeded, thus far, only in New England. In the other states, gay marriage has been established instead through the court system. Many activists believe that state judges, looking more dispassionately at state constitutions than many ordinary voters, will continue to be more likely to extend protection to same-sex marriage than state legislatures or the general electorate. (Opponents of gay marriage decry these tactics as "judicial activism," the antidemocratic practice of appointed judges deciding political matters that should rightly be left to elected officials or the voters themselves to decide.) While most of the legal fighting over gay marriage has unfolded, to date, in the various state courts, many gay-rights advocates suggest that soon the battle needs to be taken to the next level and fought out in the federal courts; total victory will come only, they argue, when gays and lesbians possess a nationally protected right to marry, and they contend that the Fourteenth Amendment suggests a constitutional right to marry for all persons.
But are they correct? As a legal and constitutional question, do gays and lesbians have a right to marry under the equal protection clause of the Fourteenth Amendment?
On the surface, the answer might seem simple (to advocates of gay marriage, at least). Marriage is, after all, a civil as well as a religious institution. People enter marriage by obtaining a license from local authorities and—in about half of all marriages these days—they later end it by securing a divorce decree from a local civil court. In between, the United States Government Accounting Office has identified more than a thousand federal benefits and responsibilities (such as homebuyer programs and educational assistance) affected by marital status. In other words, there are thousands of laws touching upon marriage and, consequently, the Fourteenth Amendment's guarantee of equal protection under the laws suggests—to some—that all people, regardless of sexual orientation, should be protected in their right to marry.
But as a question of constitutional law, it's not quite that easy. For starters, the Supreme Court has made it clear that the guarantee of equal treatment within the equal protection clause does not mean that governments cannot ever treat different people differently. States need not permit children to drive cars, for example, nor must they allow senior citizens to enroll in grammar school. As a basic rule, the Court has said that it is reasonable for states to build categories or classifications into the laws that they pass, and in fact, the "rational basis test" is one of the standards used by the courts to determine whether these classifications are fair. Also known as the Lindsley test, this standard says that if the reasons for treating people differently are reasonable and logically related to the law's purpose, then they are constitutional. Opponents of gay marriage insist that there is a rational basis (usually, they argue, rooted in cultural or religious tradition) for restricting marriage to a relationship between a man and a woman.
But the Court has also held that certain types of laws need to pass a tougher standard than the Lindsley test; certain types of classifications within the law are more suspicious and require closer scrutiny. In particular, the Court has said that America's history of racial oppression requires that all laws employing racial classifications must be more rigorously examined by the courts. Consequently, it is far less likely that these sorts of laws will survive judicial scrutiny. On occasion, the Court has also applied this heightened level of scrutiny to state laws using classifications based not only on race but also on citizenship. And in recent decades, the Court has developed an intermediate standard for evaluating laws employing gender classifications. Statutes that treat men and women differently must be more than merely reasonable, they "must serve important governmental objectives," and the differing treatments of men and women "must be substantially related to achievement of those objectives."40
In terms of gay marriage, the critical issue thus becomes the level of scrutiny that laws affecting gays and lesbians should receive. Are gays, like racial minorities, considered a "suspect" class in terms of constitutional law? Does the court rigorously scrutinize laws impacting them? Or do laws that create classifications based on sexual orientation receive a lesser degree of vigilance, like those based on age? Should the courts then apply the lowest level of scrutiny, the rational basis test? Or do they impose an intermediate standard like the one used to examine laws incorporating gender classifications?
The short answer is that, thus far, gays and lesbians have not been considered a suspect class by the Supreme Court; laws impacting them are today subject only to the lowest level of scrutiny. But since the Court has addressed these questions only very recently, it is hard to predict whether this approach will persist too much farther into the future.