University of Vermont

University Communications

Gay Rights Litigation Expert Responds to Supreme Court's Marriage Ruling

Ellen Andersen
Andersen calls the decision an enormous victory for same-sex couples, but thinks it has some major weaknesses in terms of legal reasoning and its value as precedent for future gays rights litigation. (Photo: Sally McCay)

When UVM Today interviewed Ellen Andersen, associate professor of political science and gender, sexuality, and women’s studies in January, the author of Out of the Closets and into the Courts: Legal Opportunity Structure and Gay Rights Litigation predicted that the U.S. Supreme Court would vote 5-4 in favor of same-sex marriage. 

That prediction came true on Friday, June 26, as did her expectation that Justice Anthony M. Kennedy would be the swing vote and write the majority opinion in the 5-to-4 decision that is the culmination of decades of litigation and a defining moment in civil rights history. The ruling means that states cannot keep same-sex couples from marrying and must recognize their unions. But the opinion is more than 100 pages long and incudes some complicated and sometimes ambiguous language. We decided to check back with Andersen to break it down. 

UVM Today: What a historic vote. It appears to have played out as you expected. What did you think of the overall ruling? 

Andersen: Obviously, the decision was an enormous victory for same-sex couples across the nation as well as for the litigators and activists who have worked so tirelessly for LGBT rights. But in terms of its legal reasoning and its value as precedent for future gay rights litigation, I think the decision has some obvious strengths and also some big weaknesses. 

What do you see as the strengths for Kennedy’s decision? 

The court ruled that both the due process clause and the equal protection clause give same-sex couples the right to marry. Under the due process clause, some rights are considered to be fundamental -- that is, so important that unjustifiably infringing upon them damages the very nature of our democracy. Marriage has long been considered to be one of those fundamental rights. Of course, marriage in the United States, as traditionally defined, has implicitly meant one man and one woman. One of the arguments the plaintiffs made was that the fundamental right to marry shouldn’t be read to mean "the fundamental right of a man and a woman to marry.” Instead, it should be read to mean “the fundamental right of two people to marry.” The majority opinion issued by Justice Kennedy accepted the plaintiff's argument on this point completely. This is both logically and rhetorically the high point of the decision.

Kennedy bases his argument on four principles of marriage that he says apply as much to same-sex couples as to different-sex ones. I’ll omit his references to specific cases and just give you an overview of the specific points he makes.

Kennedy first discusses the importance of choice. As he notes, the right to decide who you want to marry is inherent in the very idea of individual autonomy. He points out that decisions about marriage are among the most profound and intimate decisions any person can make. And he notes that “the nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation."

He then discusses the unique nature of marriage. The “two-person union” of marriage, he says, is “unlike any other in its importance to the committed individuals.” His rhetoric here is soaring. “Marriage,” in his words, “responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” 

Kennedy’s third principle of marriage is that it safeguards children and families. After establishing the uncontested fact that same-sex couples provide excellent homes for children, he emphasizes the harms that come to children when their parent can’t marry. In his words, “Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples.” That said, he makes it quite clear that marriage is no less meaningful for those couples who can’t or choose not to have children. The right to marry, he says, “cannot be conditioned on the capacity or commitment to procreate.” 

Finally, Kennedy talks about marriage’s role as what he calls a “keystone of the Nation’s social order.” He draws on earlier cases to describe marriage as the foundation of society. Same-sex couples, he argues, are equally as capable of filling this role as different-sex couples. To deny them both the status and the benefits of marriage, he says, is demeaning and also consigns them “to an instability many opposite-sex couples would find intolerable.”

Fundamentally, he says, “Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”

Overall, this is just a cogent and captivating part of his decision.

So then what do you see as the weakness of his decision?

Because Justice Kennedy found the right of same-sex couples to marry to be fundamental, he really only needed to show that the government did not have a compelling purpose and/or that the marriage laws were not drawn sufficiently narrowly. That’s easily enough done. But this part of the decision doesn’t actually detail how the laws don’t have a compelling purpose or aren’t drawn sufficiently narrowly. In fact, he doesn’t articulate any standard of review at all.

His discussion of how denying same-sex couples the right to marry violates the equal protection clause of the Fourteenth Amendment is also pretty weak, in large part because Justice Kennedy refuses to articulate a particular level of scrutiny. Under equal protection analysis, there are three tiers of scrutiny. Most laws only need to pass so-called rational basis analysis. In layman’s terms, the laws just need to have an acceptable goal, and the law itself has to have a reasonable relationship to the goal it is designed to address. Laws that infringe on a fundamental right or that make distinctions on the basis of race and a few other categories have to pass “strict scrutiny.” Here the government must have a compelling purpose for a law and the law needs to be drawn narrowly so that rights are infringed as little as possible. The Court has also developed a level of analysis known as “intermediate scrutiny,” which is used primarily to examine laws that make distinctions on the basis of sex. Under this standard, laws have to have an important purpose and the law itself has to be closely related to the interest at hand.

Kennedy doesn’t draw on any of these standards to frame his discussion. Instead, he draws on several cases to show that liberty and equality interests can be inter-related and concludes with the following quote: “It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.” 

The squishiness of the Kennedy’s equal protection rationale means that it’s going to be difficult for LGBT rights litigators to use Obergefell to make equal protection claims in other areas of law: employment, housing and the like. So, my quick conclusion is that this is a very powerful fundamental rights analysis and a relatively weak equal protection analysis. Justice Kennedy truly gets the dignity interests of same-sex couples, which is fabulous. Litigators seeking to use Obergefell to make inroads into other areas of anti-gay discrimination are probably wishing that Justice Kennedy’s equal protection analysis was stronger, because most of the rest of the “gay agenda” will be litigated through the equal protection clause, not the due process clause.