Last year, the decision in United States v. Windsor represented a huge victory for marriage equality, as the Supreme Court ruled that Section 3 of the Defense of Marriage Act, which defined marriage as between a man and a woman, was unconstitutional. While the Supreme Court ducked the question posed by a companion case of whether a state ban on marriage between same-sex couples violated the Fourteenth Amendment, since Windsor the trend in lower courts has been unanimous: so far, 18 decisions have found these bans on same-sex marriage to be unconstitutional. The Tenth Circuit Court of Appeals is now poised to address the question in Kitchen v. Herbert and Bishop v. Smith, two cases which arise out of bans on marriage between same-sex couples in Utah and Oklahoma, which lower courts struck down.
At oral argument in the Supreme Court’s marriage equality cases last year, Justice Kennedy, the ultimate author of the majority opinion in Windsor, puzzled over whether laws prohibiting marriage between same-sex couples discriminated on the basis of sex, and as a result were subject to heightened scrutiny under the Constitution. Under heightened scrutiny, a law that classifies on the basis of sex is presumed to be unconstitutional, unless the government can demonstrate that it is based on an “exceedingly persuasive justification.” Notably, in Kitchen, the district court striking down the Utah marriage ban explicitly found that sexual orientation discrimination was a form of sex discrimination and hence subject to heightened scrutiny.
A related reason that laws that discriminate based on sexual orientation should be subject to heightened scrutiny is that these laws typically rest on gender stereotypes—and the Supreme Court has made clear in the sex discrimination context that heightened scrutiny under the Equal Protection Clause is necessary to smoke out this reliance and enforcement of gender stereotypes. In other words, laws that say women can only marry men and vice versa, rest on stereotypes about what it means to be a woman (or a man), just as did laws such as those that once gave husbands, rather than wives, legal decision-making authority within a marriage. The Center filed an amicus brief on March 4 in the Tenth Circuit cases arguing that the government may not decide who is permitted to marry based on traditional gender stereotypes about who men and women should love and the separate roles that men and women play within marriage. One of many important reasons why heightened scrutiny should also apply to sexual orientation discrimination, the brief explains, is the close connection between laws that treat men and women differently based on stereotyped assumptions about what is appropriate for each sex and laws that treat people differently on the basis of sexual orientation, founded on stereotyped assumptions about appropriate intimate relationships for men and women. In both contexts, the Constitution should provide strong protection against government efforts to perpetuate traditional, stereotyped gender roles.