Sexual Orientation

In Romer v. Evans,2112 the Supreme Court struck down a state constitutional amendment that both overturned local ordinances prohibiting discrimination against homosexuals, lesbians or bisexuals, and prohibited any state or local governmental action to either remedy discrimination or to grant preferences based on sexual orientation. The Court declined to follow the lead of the Supreme Court of Colorado, which had held that the amendment infringed on gays’ and lesbians’ fundamental right to participate in the political process.2113 The Court also rejected the application of the heightened standard reserved for suspect classes, and sought only to establish whether the legislative classification had a rational relation to a legitimate end.

The Court found that the amendment failed even this restrained review. Animus against a class of persons was not considered by the Court as a legitimate goal of government: “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”2114 The Court then rejected arguments that the amendment protected the freedom of association rights of landlords and employers, or that it would conserve resources in fighting discrimination against other groups. The Court found that the scope of the law was unnecessarily broad to achieve these stated purposes, and that no other legitimate rationale existed for such a restriction.

In United States v. Windsor,2115 the Court struck down Section 3 of the Defense of Marriage Act (DOMA), which provided that for purposes of any federal act, ruling, regulation, or interpretation by an administrative agency, the word “spouse” would mean a person of the opposite sex who is a husband or a wife.2116 In Windsor, the petitioner had been married to her same-sex partner in Canada and she lived in New York, where the marriage was recognized. After her partner died, the petitioner sought to claim a federal estate tax exemption for surviving spouses.2117 In examining the federal statute, the Court initially noted that, while “[b]y history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States,”2118 Section 3 of DOMA took the “unusual” step of departing from the “history and tradition of reliance on state law to define marriage” in order to alter the reach of over 1,000 federal laws and limit the scope of federal benefits.2119 Citing to Romer, the Court noted that discrimination of “unusual character” warranted more careful scrutiny.2120

In approving of same-sex marriages, the State of New York was conferring a “dignity and status of immense import,”2121 and the federal government, with Section 3 of DOMA, was aiming to impose “restrictions and disabilities” on and “injure the very class” New York sought to protect.2122 In so doing, the Court concluded that Section 3 of DOMA was motivated by improper animus or purpose because the law’s avowed “purpose and practical” effect was to “impose a . . . stigma upon all who enter into same-sex marriages made lawful” by the states.2123 Holding that “no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,”2124 the Court held that Section 3 of DOMA violates “basic due process and equal protection principles applicable to the Federal Government.”2125 In striking down Section 3, the Court did not expressly set out what test the government must meet to justify laws calling for differentiated treatment based on sexual orientation.

Two years after Windsor, the Court, in Obergefell v. Hodges, invalidated several state laws limiting the licensing and recognition of marriage to two people of the opposite sex.2126 While the decision primarily rested on substantive due process grounds,2127 the Court noted that the “right of same sex couples to marry” is “derived, too,” from the Fourteenth Amendment’s Equal Protection Clause.2128 In so holding, the Court recognized a general “synergy” between the Due Process Clause and the Equal Protection Clause, noting that just as evolving societal norms inform the liberty rights of same-sex couples, so too do “new insights and societal understandings” about homosexuality reveal “unjustified inequality” with respect to traditional concepts about the institution of marriage.2129 In this sense, the Court viewed marriage laws prohibiting the licensing and recognition of same-sex marriages as working a grave and continuing harm to same-sex couples, serving to “disrespect and subordinate them.”2130 As a result, the Court ruled that the Equal Protection Clause prevents states from excluding same-sex couples from civil marriage on the same terms and conditions as opposite sex couples.2131


517 U.S. 620 (1996). back
Evans v. Romer, 854 P.2d 1270 (Colo. 1993). back
517 U.S. at 634, quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). back
570 U.S. ___, No. 12–307, slip op. (2013). back
Defense of Marriage Act, Pub. L. 104–199, § 3, 110 Stat. 2419, 1 U.S.C. § 7 (2006). back
Section 3 also provided that “marriage” would mean only a legal union between one man and one woman. back
Windsor, slip op. at 14–16. back
Id. at 18–19. back
Id. at 19 (citing Romer v. Evans, 517 U.S. 620, 633). back
Id. at 18. back
Id. at 19–20. back
Id. at 21. back
Id. at 25–26. back
Id. at 20. Because the case was decided under the Due Process Clause of the Fifth Amendment, which comprehends both substantive due process and equal protection principles (as incorporated through the Fourteenth Amendment), this statement leaves unclear precisely how each of these doctrines bears on the presented issue. back
See 576 U.S. ___, No. 14–556, slip op. at 2 (2015). back
Id. at 10–19. back
Id. at 19. back
Id. at 19–21. back
Id. at 22. back
Id. at 23. Interestingly, however, the Obergefell Court did not engage in any traditional equal protection analysis in which a government’s classification is adjudged based on the nature of the classification and the relationship between the classification and the underlying justifications for the government policy. Instead the Obergefell Court concluded that state classifications distinguishing between opposite-and same-sex couples violated equal protection principles on their face and therefore were unconstitutional. Id. at 21–22; see also supra Equal Protection of the Laws: Equal Protection: Judging Classifications by Law: The New Standards: Active Review. back