JURIST Assistant Editor Kimberly Bennett, University of Pittsburgh School of Law Class of 2014, argues that although it will be described as judicial activism, same-sex couples must be granted the same rights as opposite-sex couples under the Equal Protection Clause of the Fourteenth Amendment… (Her opinions are not intended to represent those of JURIST)

The US Court of Appeals for the Ninth Circuit is currently deciding the constitutionality of Proposition 8, the 2008 initiative that amended the California Constitution to provide that only marriage between a man and a woman would be recognized by the state. Opponents of the amendment argue that it is unconstitutional based on the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. The US District Court for the Northern District of California determined that the right to marriage is a fundamental right, guaranteed by the Due Process Clause, by looking at 1) the history and tradition of marriage in the US, and 2) whether opponents seek to exercise this right or seek to exercise some other right. The district court ruled that although the history of marriage has never been between same-sex couples, the right to marry has, nevertheless, been the right to choose a consenting spouse to join a household and create a family. Additionally, same-sex couples do not seek a new right; rather, they only seek the right to have their marriages recognized as valid. The court also found that under the Equal Protection Clause Proposition 8 [PDF] is not rationally related to a legitimate governmental interest. If the US Supreme Court hears this case, it will likely have to decide whether same-sex couples should be granted the same rights as heterosexual couples under the Equal Protection Clause.

Historically, the Supreme Court has ruled that laws arbitrarily discriminating against a specific group are unconstitutional. In Loving v. Virginia, the Court established that state laws banning interracial marriage were unconstitutional, as they lacked a rational purpose, were racist and perpetuated white supremacy. Accordingly, the traditional norms for justifying state miscegenation laws were invalidated and these discriminatory laws were struck down. In Reed v. Reed, the Supreme Court ruled that laws preferring men to women, based on arbitrary legislative choice, were forbidden by both the Equal Protection Clause and the Due Processes Clause. Five years later, in Craig v. Boren, the Court established an “intermediate” or “heightened scrutiny” standard for cases involving discrimination against women. To pass scrutiny and be held constitutional under this standard, discriminatory laws and policies must be found to be supported by an “exceedingly persuasive justification” that is “substantially related to an important governmental objective,” and it cannot be found to be based on stereotypes about gender. Originally excluded from equal protection, this case effectively extended the Equal Protection Clause to women.

Recently, US courts have made significant steps toward the protection of gays and lesbians, indicating that there has been a slow movement toward their inclusion as a protected class under the Equal Protection Clause. In Romer v. Evans, the Court ruled that an amendment to the Colorado Constitution [PDF], which stated that there was no protected status based on sexual orientation, was held to be unconstitutional because it violated the Equal Protection Clause for lack of a “legitimate legislative end.” In Lawrence v. Texas, the Court stated that, “[m]oral disapproval of this group … is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Based on these cases, the rule is clear: if a law is intended to infringe on the rights of a certain group, there must be a rational and legitimate governmental interest to justify it.

The Fourteenth Amendment does not specify any groups in particular that should be protected. Instead, the Constitution provides a framework to determine which rights are fundamental, and dictates that these rights shall not be denied to anyone within its jurisdiction. In Zablocki v. Redhail, the Supreme Court established marriage as a fundamental right recognized under the Equal Protection Clause. It further established that courts should apply a rigorous level of scrutiny in cases dealing with fundamental rights. Any scrutiny regarding the constitutionality of banning same-sex marriage reveals that the reasons for its ban are based on outmoded values that cannot be tied to a rational basis or legitimate governmental interest. It is the courts that must break with discriminatory views, as they have done in the past.

Although it is often described as judicial activism, it is essential that judges use their power to make decisions in spite of popular opinion or the approval of public officials. Following Marbury v. Madison, it has been the province of the courts to determine what the Constitution permits. This decision-making power is crucial to our democratic system, as a balance and division of powers is essential to its maintenance. It is the duty of the courts to protect the rights of the minority, and prevent the tyranny of the majority. Checks and balances created by the Constitution must function in the way they were intended. Courts should remain steadfast in their exercise of proper judicial discretion. Denying a fundamental right to a minority is not only contrary to our values and jurisprudence, it is a threat to our democratic system. Judicial discretion does not mean that courts can simply rule as they please. Rather, judicial discretion charges courts with the burden of making constitutionally appropriate decisions based on precedent.

In terms of equal protection, the Supreme Court has historically been at the forefront of progressing our laws to reflect and create necessary changes in societal values, with some of the most notable cases being Brown v. Board of Education and Roe v. Wade. As long as courts rule in accordance with the Constitution, popular opinion should have no impact on their decisions. Marbury v. Madison has provided the courts with the authority to interpret and apply the Constitution. Accordingly, the Ninth Circuit must adhere to its duty as a reviewer and protector of minority rights. A provision, like Proposition 8, cannot pass through the type of rigorous scrutiny that is required in a case where a fundamental right is at stake. If the courts are to uphold Proposition 8 as constitutional under the Fourteenth Amendment, they must provide a rational and legitimate reason for doing so, as decided in Romer, Reed, Loving and Lawrence. The Ninth Circuit must use its judicial discretion in the form of equal rights activism to provide same-sex couples the rights guaranteed to opposite-sex couples.

Kimberly Bennett is an Assistant Editor for JURIST’s Social Media service. She holds a undergraduate degree in Spanish and Political Science, and a Certificate in Latin American Studies from the University of Pittsburgh. She is studying international human rights and civil rights law at the University of Pittsburgh School of Law.

The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.

Suggested citation: Kimberly Bennett, Judicial Activism and the Recognition of Same-Sex Marriage, JURIST – Dateline, Jan. 30, 2012, http://jurist.org/dateline/2012/01/kimberly-bennett-gay-rights.php.