Same-Sex Marriage: A Legal Overview

Source: Rodney M. Perry, Congressional Research Service, CRS Report, R43886, January 30, 2015

Same-sex marriage has engendered heated debate throughout the country. There is no federal same-sex marriage prohibition after the Supreme Court’s decision in United States v. Windsor, which struck down the portion of the Defense of Marriage Act that defined marriage as a union between a man and a woman. However, many states have passed statutes or constitutional amendments that prohibit same-sex couples from marrying, and that deny recognition of same- sex marriages that were legally formed in other states. These state same-sex marriage bans may impact gay individuals’ rights and claims to state and federal benefits. For example, such restrictions may affect tax liabilities and entitlements to Social Security.

Until recently, state same-sex marriage bans were seemingly insulated from Fourteenth Amendment challenges in federal courts because of a 1972 Supreme Court decision, Baker v. Nelson, wherein the Court summarily dismissed such a challenge for lack of a substantial federal question. However, in recent years, some courts have held that Supreme Court decisions subsequent to Baker —namely, Romer v. Evans, Lawrence v. Texas, and Windsor —have rendered Baker non-binding. These courts have thus considered whether state same-sex marriage bans violate the Fourteenth Amendment. ….

Under the Fourteenth Amendment’s Equal Protection Clause, state action that classifies groups of individuals may be subject to heightened levels of judicial scrutiny, depending on the type of classification involved. State same-sex marriage bans have faced equal protection challenges because they classify individuals based on sexual orientation. Additionally, under the Fourteenth Amendment’s substantive due process guarantees, state action that infringes upon a fundamental right—such as the right to marry—is subject to a high level of judicial scrutiny. State same-sex marriage bans have been challenged on the basis that they infringe upon the fundamental right to marry, which, it has been argued, incorporates the right to same-sex marriage.

Circuit courts are currently split regarding whether Baker precludes them from considering the constitutionality of state same-sex marriage bans, and whether such bans violate the Fourteenth Amendment. The Fourth, Seventh, Ninth, and Tenth Circuits have struck down state same-sex marriage bans after finding that Supreme Court decisions subsequent to Baker render that decision non-binding. In doing so, they have generally, though not uniformly, subjected state same-sex marriage bans to heightened levels of judicial scrutiny after finding that governmental classifications based on sexual orientation warrant increased scrutiny or finding that the fundamental right to marry includes the right to same-sex marriage. The Sixth Circuit, on the other hand, held that Baker remains binding precedent that precluded its review of Fourteenth Amendment challenges to state same-sex marriage bans. ….