This spring, the U.S. Supreme Court is set to hear two cases that touch on questions of the constitutionality of same-sex marriage.
In Hollingsworth v. Perry, scheduled for argument on March 26, the court will determine whether the Equal Protection Clause of the 14th Amendment precludes the state of California from defining marriage as a union between a man and a woman (and also whether the petitioners have standing in the case, under Article III).
In U.S. v. Windsor, with arguments slated for the following day, the court will examine the Defense of Marriage Act, determining whether the law violates the Fifth Amendment‘s guarantee of equal protection of the laws. (The court will also decide whether it has jurisdiction to decide the case, and whether the petitioners have standing.)
The question of the government’s power to create and enforce legislation has a storied history in American law and jurisprudence.
In 1819, in the case of McCulloch v. Maryland, the court offered a broad interpretation of the Necessary and Proper Clause of the Constitution to hold that Congress is permitted to create laws within its enumerated powers, so long as those laws are reasonably related to a legitimate government interest.
McCulloch set the precedent for the so-called “rational basis test,” which presumes the constitutionality of governmental intervention so long as such intervention is in service of that legitimate interest.
In the decades to follow, however, that presumption of constitutionally was challenged as the nation began to conceive of specific classes of people in need of protection.
In 1868, the legislature enacted the 14th Amendment to the Constitution, mandating that:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Since its passage, courts and policymakers have been working to give teeth to this notion of equal protection, to define the scope of the law and to create enforcement mechanisms that will ensure the protection of vulnerable classes of individuals throughout society.
In the process, the nation has had to decide how it categorizes its citizens, and how it determines who constitutes a special class worthy of protection under the law.
In 1934, in the case of United States v. Carolene Products, Justice Harlan Stone applied rational basis scrutiny to hold that a law regulating milk quality was constitutional under the Interstate Commerce Clause.
In footnote, however, Stone hinted at the possibility of heightened scrutiny in select cases and as applied to certain people. In the fourth note, often called “the most famous footnote in constitutional law,” Stone wrote:
“There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those in the first 10 amendments, which are deemed to be equally specific when held to be embraced within the 14th Amendment.”
Here, Stone implied a place in American jurisprudence for a more rigorous evaluation of constitutionality for controversies invoking the application of the 14th Amendment. This famed footnote suggested the possibility of multiple levels of judicial scrutiny; for the first time, the court acknowledged that there may exist specific categories of people whose protection interests outweigh the concerns of the government.
In 1943’s Hirabayashi v. United States, the Supreme Court applied the Carolene precedent to assert a presumed unconstitutionality in laws evoking race-based classifications.
Such legislation, wrote then-Chief Justice Harlan Stone, is inherently suspect, “by [its] very nature, odious to a free people whose institutions are founded upon the doctrine of equality.” Such categorization continued Stone, writing to a unanimous bench, “would be controlling here, were it not for the fact that the danger of espionage and sabotage, in time of war or threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas.”
Though the state interest in Hirabayashi—the implementation of curfews for Japanese-Americans living in the U.S. in the wake of Pearl Harbor—was deemed constitutional, here, the court sought to clarify the language of the Carolene decision to construct a heightened level of judicial scrutiny for equal protection cases dealing with issues of racial classification—what would become known as the “strict scrutiny test.”
More than two decades later, in Loving v. Virginia (1967), the court applied this strict scrutiny standard to rule in favor of equal protection for the first time.
In Loving, the court took up the question of whether a Virginia anti-miscegenation law – preventing interracial marriage—violated the 14th Amendment’s Equal Protection Clause. In Loving, Chief Justice Earl Warren wrote, “at the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the ‘most rigid scrutiny…’ and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.”
Writing for a unanimous bench, Warren made clear that any racial classification that compromised equal protection was to be held to the strictest level of scrutiny. In Loving, the court affirmed that such an abridgement must be necessary to serve a compelling government interest.
And Warren went a step further. “Marriage,” he wrote, “is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival… To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the 14th Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.”
The court’s invocation of “fundamental rights” here set the precedent for a new classification of protection. In the years to follow, the court would declare that in addition to marriage, such issues as procreation, contraception, family relationships, and child rearing were classified as “fundamental,” all subject to the strict scrutiny standard for determining equal protection.
In 1976, in Craig v. Boren, the court also crafted a level of intermediate scrutiny—a presumption of unconstitutionality unless a law is “substantially related” to an “important” government interest—in cases of gender-based discrimination.
To date, the U.S. Supreme Court has yet to issue a ruling that ascribes a level of scrutiny to questions of sexual orientation.
However, in recent years, lower courts have begun to employ their own scrutiny tests. In 2008, the California Supreme Court, in In re Marriage Cases, adopted a strict scrutiny standard to state laws that discriminate on the basis of sexual orientation. In 2012, in United States v. Windsor—the same case that the federal Supreme Court will hear this March—the U.S. Court of Appeals for the Second Circuit evoked an intermediate level of scrutiny in questions over the constitutionality of the Defense of Marriage Act.
This spring, as the Roberts court considers the legal issues in Windsor and Hollingsworth, justices must consider what levels of scrutiny to apply in their analyses.
If they cast the critical issue as the fundamental right to marry, they will likely take precedent from Loving to adopt a strict scrutiny test. If, however, they define the central question as one of sexual orientation, the level of scrutiny to apply will become a legal question unto itself, one the court may need to answer in order respond to the issue of same-sex marriage.
How the court defines the level of judicial scrutiny in these cases could have far-reaching implications for the questions of marriage equality in the United States.
Abigail Perkiss is an assistant professor of history at Kean University in Union, New Jersey, and a fellow at the Kean University Center for History, Politics and Policy.
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