By all accounts, the Supreme Court will be getting ready to hand down a big win for marriage equality after hearing arguments from both sides today. With the preponderance of lower court rulings in favor of marriage equality and no reason to think that the five judges who struck down DOMA two years ago have changed their mind, it would be a monumental upset if the court did not move to make marriage a national right.
However, how they do so will make a big difference legally. The final ruling may look sweeping, but it could be more limiting than it appears at first glance. That’s why Mary Bonauto and her fellow legal advocates for equality will not just be pressing the court for a majority but a sweeping decision as well.
It all depends on whether the justices think that being LGBT is a characteristic that deserves the government’s highest level of interest, or whether it’s just important enough for the government to step in.
Legally, that’s a huge difference. If being gay or lesbian is a characteristic like race, then the courts have to apply something called “strict scrutiny.” In plain English, that means the other side had damn well better have a brilliant case because it’s going to lose in any case.
The courts haven’t gone there yet. In so far that lower courts have done so at all, they’ve used a lower standard called “heightened scrutiny.” That means the government has a compelling interest in the outcome, but under some circumstances, discrimination may be acceptable.
Not to diminish any of Anthony Kennedy’s contributions to advancing LGBT rights, but he has explicitly refused to apply the strict scrutiny standard. In fact, in Romer v. Evans, Kennedy refused to tell lower courts how they should approach LGBT discrimination cases. They could take each case on its own or apply another standard. Kennedy wasn’t about to tell them.
And it seems unlikely that he’ll do so now. Strict scrutiny may be the bridge-too-far for Kennedy to cross. In fact, any classification at all seems too far.
Which means that religious liberty cases can’t be tossed out of court for being laughably unconstitutional. If Bobby Jindal wants to defend his odious religious liberty law (assuming it passes) in court, he will probably get a hearing. He can even appeal all the way to the Supreme Court. And the Court will have to consider if there are unsettled constitutional questions to answer.
Because there are. If we aren’t protected as a class, we may get all the right decisions, but without the legal reasoning that can be broadly applied to other cases. Instead, it’s a case-by-case slog. That’s not to say that we’re any less likely to prevail, but it does mean we haven’t heard the last challenge to marriage equality. Nor has the Supreme Court.