Since the U.S. Supreme Court’s decision in United States v. Windsor, holding Section 3 of the Defense of Marriage Act (“DOMA”) unconstitutional, nearly every federal district court in the country faced with a similar challenge to a same-sex marriage ban, whether it be a state constitutional amendment or state statute, has held such a ban unconstitutional. This has reportedly occurred in some of the most unlikely of places, including Texas and Utah, and at the hand of conservative and liberal judges alike. Yet, as the Sixth Circuit prepares for oral arguments in the State’s appeal of DeBoer v. Snyder, in which Judge Bernard Friedman of the U.S. District Court for the Eastern District of Michigan struck down Michigan’s constitutional ban on same-sex marriage, several questions remain, principally, whether the Sixth Circuit will alter its stance that classifications based on sexual orientation are not subject to heightened scrutiny under the Equal Protection Clause.  
 

Although Judge Friedman did not decide whether sexual orientation is a classification subject to heightened scrutiny in DeBoer, the issue is nevertheless ripe for analysis on appeal. The Supreme Court in Windsor left open the question of whether heightened scrutiny applies to sexual orientation, although some speculate that Justice Kennedy’s opinion alludes that heightened scrutiny is the appropriate standard. Further, the Sixth Circuit’s past application of rational basis review to sexual orientation is waveringly rooted in case law that was overruled in the Supreme Court’s 2003 Lawrence v. Texas decision.  It remains to be seen whether the Sixth Circuit will follow in the footsteps of the Ninth Circuit, which recently held that classifications based on sexual orientation are subject to heightened scrutiny.

Should the Sixth Circuit choose to rule on this issue, the implications of its decision would be enormous for the LGBT community. The Equal Protection Clause, enacted in 1868 shortly after the Civil War, was passed to ensure fair treatment by the states of the newly-freed slaves. Race was held to be a suspect classification, subject to the highest scrutiny, due to African Americans’ vulnerability to discrimination and political powerlessness, as well as their immutable and distinguishing characteristics defining them as a discrete group. It has been noted in the recent line of cases addressing the constitutionality of same-sex marriage bans that gay and lesbian individuals seem to share many of the characteristics of other groups afforded heightened scrutiny. In Bostic v. Rainey, for example, the U.S. District Court for the Eastern District of Virginia noted, in support of its opinion that sexual orientation is a classification deserving of heightened scrutiny, that as recently as 2012, the Virginia legislature passed a law permitting adoption agencies to refuse adoptions based on the sexual orientation of the prospective parents.  Moreover, in Windsor, Justice Kennedy compared the injustices suffered by same-sex couples denied the right to marry to the injustices suffered by interracial couples denied the right to marry over forty-five years ago, before the Court’s Loving v. Virginia decision holding anti-miscegenation statutes unconstitutional.  
 

The issue of same-sex marriage and the standard of review to apply to classifications based on sexual orientation in Equal Protection cases will ultimately be left up to the U.S. Supreme Court regardless of the Sixth Circuit’s holding in DeBoer. Whether the Supreme Court chooses to grant certiorari to Michigan’s DeBoer case or one of the myriad of other cases addressing these issues remains to be seen.

Oral arguments for the DeBoer v. Snyder case was heard before the Sixth Circuit on August 6.

(Frances G. Murphy is an attorney with Garan Lucow Miller in Detroit. She focuses her practice in the areas of admiralty and maritime law, intellectual property, municipal, and no-fault insurance defense. She is a graduate of Michigan State University and Wayne State University Law School.)

 

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