Same-Sex Marriage: A Legal Overview
Rodney M. Perry
Legislative Attorney
January 30, 2015
Congressional Research Service
7-5700
www.crs.gov
R43886
Same-Sex Marriage: A Legal Overview
Summary
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. The Sixth Circuit
then went on to find that even if it could consider the constitutionality of such bans, it would
subject them to the lowest level of judicial scrutiny and uphold them as constitutional. On January
16, 2015, the Supreme Court granted review of cases from the Sixth Circuit involving Fourteenth
Amendment challenges to state same-sex marriage bans. In doing so, the Court seems poised not
only to resolve the existing circuit split, but also to settle key questions about rights for gay
people.
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Contents
General Constitutional Principles .................................................................................................... 1
Equal Protection ........................................................................................................................ 1
Substantive Due Process ............................................................................................................ 3
The Supreme Court Precedent Contributing to the Circuit Split ..................................................... 4
Romer v. Evans .......................................................................................................................... 6
Lawrence v. Texas ...................................................................................................................... 7
United States v. Windsor ............................................................................................................ 8
Current Circuit Split ........................................................................................................................ 9
Four Circuits Strike Down State Same-Sex Marriage Bans ...................................................... 9
The Sixth Circuit Upholds State Same-Sex Marriage Bans .................................................... 11
Supreme Court Appears Poised to Resolve the Circuit Split ................................................... 12
The Court Could Arguably Uphold State Same-Sex Marriage Bans ................................ 13
The Court Could Arguably Invalidate State Same-Sex Marriage Bans ............................ 13
The Court Could Resolve Each Question Differently ....................................................... 14
Conclusion ..................................................................................................................................... 14
Contacts
Author Contact Information........................................................................................................... 15
Acknowledgments ......................................................................................................................... 15
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Same-Sex Marriage: A Legal Overview
ame-sex marriage has engendered heated debate throughout the country. Many states have
passed statutes or constitutional amendments that prohibit same-sex couples from
Smarrying, and that deny recognition of same-sex marriages that were legally formed in
other states.1 These same-sex marriage bans may impact gay individuals’ rights and claims to
state and federal benefits. For example, they may affect tax liabilities and entitlements to Social
Security benefits.
Until recently, state same-sex marriage bans were seemingly insulated from Fourteenth
Amendment equal protection and due process challenges to their validity because of a 1972
Supreme Court case, Baker v. Nelson.2 There, the Supreme Court dismissed equal protection and
due process challenges to a state statute that defined marriage in terms of a man and a woman,
finding that the issues involved in the case did not present a substantial federal question.3
After Baker, state same-sex marriage bans went largely uncontested in federal courts until the
Supreme Court relied, in part, on equal protection and due process principles to invalidate a
portion of the federal Defense of Marriage Act (DOMA) in United States v. Windsor.4 Windsor
cast doubt upon whether the Supreme Court finds that equal protection and due process
challenges to state same-sex marriage bans still pose no substantial federal questions in
accordance with Baker. Additionally, though a federal statute was at issue in Windsor, that case
raised questions regarding the validity of state same-sex marriage bans under the Constitution’s
equal protection and due process guarantees. Lower courts were left to grapple with these
questions, resulting in a circuit split that the Supreme Court appears poised to resolve this term.
This report provides background on, and analysis of, significant legal issues surrounding the
same-sex marriage debate. It begins by providing background on the constitutional principles that
are often invoked in attempting to invalidate same-sex marriage bans—namely, equal protection
and due process guarantees. Then, it discusses key cases that led to the existing circuit split on the
constitutionality of state same-sex marriage bans. Finally, this report explains the central issues in
the circuit split and analyzes how the Supreme Court might resolve them on appeal.
General Constitutional Principles
Equal Protection
Under the Fourteenth Amendment’s Equal Protection Clause, “[n]o State shall … deny to any
person within its jurisdiction the equal protection of the laws.”5 Though there is no parallel
constitutional provision expressly prohibiting the federal government from denying equal
protection of the law, the Supreme Court has held that equal protection principles similarly apply
1 See, e.g., Mich. Const. art. I, §25 (Michigan constitutional amendment defining marriage as “the union of one man
and one woman” and denying recognition of same-sex marriages performed in other states); Ky. Const. §233A
(Kentucky constitutional amendment defining marriage as “between one man and one woman” and denying recognition
of same-sex marriages performed in other states).
2 409 U.S. 810 (1972). See infra notes 37-56 and accompanying text.
3 Baker, 409 U.S. at 810.
4 133 S. Ct. 2675 (2013).
5 U.S. Const. amend. XIV, §1.
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to the federal government.6 Under the Constitution’s equal protection guarantees, when courts
review governmental action that distinguishes between classes of people, they apply different
levels of scrutiny depending on the classification involved. The more suspect the government’s
classification, or the more likely that the government’s classification was motivated by
discrimination, the higher the level of scrutiny that courts will utilize in evaluating the
government’s action.7 Generally speaking, there are three such levels of scrutiny: (1) strict
scrutiny; (2) intermediate scrutiny; and (3) rational basis review.
Strict scrutiny is the most searching form of judicial review. The Supreme Court has observed
that strict scrutiny applies to governmental classifications that are constitutionally “suspect,” or
that interfere with fundamental rights.8 In determining whether a classification is suspect, courts
consider whether the classified group: (1) has historically been subject to discrimination; (2) is a
minority group exhibiting an unchangeable characteristic that establishes the group as distinct; or
(3) is inadequately protected by the political process.9 There are generally three governmental
classifications that are suspect—those based on race, national origin, and alienage.10 When
applying strict scrutiny to governmental action, reviewing courts consider whether the
governmental action is narrowly tailored to a compelling governmental interest.11 The
government bears the burden of proving the constitutional validity of its action under strict
scrutiny and, in doing so, must generally show that it cannot meet its goals via less discriminatory
means.12
Intermediate scrutiny is less searching than strict scrutiny, though it subjects governmental action
to more stringent inspection than rational basis review. Intermediate scrutiny applies to “quasi-
suspect” classifications, such as classifications based on gender13 or illegitimacy.14 When
reviewing courts apply intermediate scrutiny to governmental action, they determine whether the
action is substantially related to achieving an important government interest.15 As with strict
scrutiny, the government bears the burden of establishing the constitutional validity of its actions
under intermediate scrutiny.16
6See Bolling v. Sharpe, 347 U.S. 497 (1954). More specifically, the Court has held that the Fifth Amendment’s
guarantee of “due process of the law,” applicable to the federal government, incorporates equal protection guarantees.
See id. at 500.
7 Compare City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (holding that mental disability is not a
“quasi-suspect” classification, and thus is entitled to rational basis review) with Graham v. Richardson, 403 U.S. 365
(1971) (holding that classifications based on alienage are “inherently suspect,” and are subject to strict scrutiny).
8 See Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312 (1976); see also Heller v. Doe, 509 U.S. 312, 319 (1993).
9 See Lyng v. Castillo, 477 U.S. 635, 638 (1986); see also United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4
(1938).
10 Graham, 403 U.S. at 371-72 (“… the Court’s decisions have established that classifications based on alienage, like
those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.”).
11 Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007).
12 See Fisher v. University of Tex. at Austin, 133 S. Ct. 2411, 2420 (2014).
13 United States v. Virginia, 518 U.S. 515, 533 (1996); see Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).
14 Clark v. Jeter, 486 U.S. 456, 461 (1988) (“Between these extremes of rational basis review and strict scrutiny lies a
level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or
illegitimacy.”).
15 See Craig v. Boren, 429 U.S. 190, 198 (1976); see also Clark, 486 U.S. at 461.
16 Virginia, 518 U.S. at 533; see Miss. Univ. for Women, 458 U.S. at 724.
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Rational basis review is the least searching form of judicial scrutiny and generally applies to all
classifications that are not subject to heightened levels of scrutiny.17 For governmental action to
survive rational basis review, it must be rationally related to a legitimate government interest.18
When evaluating governmental action under rational basis review, courts consider the legitimacy
of any possible governmental purpose behind the action.19 That is, courts are not limited to
considering the actual purposes behind the government’s action.20 Additionally, the governmental
action needs only be a reasonable way of achieving a legitimate government purpose to survive
rational basis review; it does not need to be the most reasonable way of doing so, or even more
reasonable than alternatives.21 Accordingly, rational basis review is deferential to the government,
and courts generally presume that governmental action that is subject to such review is
constitutionally valid.22 Parties challenging governmental actions bear the burden of establishing
their invalidity under rational basis review.23
Parties seeking to invalidate same-sex marriage bans have often argued that such bans violate the
Constitution’s equal protection principles by suggesting that governmental classifications based
on sexual orientation are suspect or quasi-suspect, and thus are subject to heightened scrutiny.
Conversely, others have argued that such bans are only subject to rational basis review. As
discussed below, there is a circuit split as to whether state same-sex marriage bans violate the
Constitution’s equal protection principles. A similar disagreement exists over whether or not such
bans violate the Constitution’s substantive due process principles.
Substantive Due Process
The U.S. Constitution’s due process guarantees are contained within two separate clauses; one
can be found in the Fifth Amendment, and the other resides in the Fourteenth Amendment. Each
clause provides that the government shall not deprive a person of “life, liberty, or property,
without due process of law.”24 However, the Fifth Amendment applies to action by the federal
government, whereas the Fourteenth Amendment applies to state action.25
The Constitution’s due process language makes clear that the government cannot deprive
individuals of life, liberty, or property without observing certain procedural requirements. The
Supreme Court has interpreted this language to also include substantive guarantees that prohibit
17 See Cleburne Living Center, 473 U.S at 440-42; see also Schweiker v. Wilson, 450 U.S. 221, 230 (1981).
18 See City of Cleburne, 473 U.S. at 440.
19 See Nordlinger v. Hahn, 505 U.S. 1, 15 (1992); see also Heller, 509 U.S. at 320.
20 See Nordlinger, 505 U.S. at 15; see also Heller, 509 U.S. at 320.
21 See Schweiker, 450 U.S. 221, 235 (1981) (observing that, under rational basis review, “[a]s long as the classificatory
scheme chosen by Congress rationally advances a reasonable and identifiable governmental objective, we must
disregard the existence of other methods of allocation that we, as individuals, perhaps would have preferred.”); see also
Heller, 509 U.S. at 320 (observing that under rational basis review, “a classification ‘must be upheld against equal
protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the
classification.’”) (quoting F.C.C. v. Beach Commc’ns,, Inc., 508 U.S. 307, 312 (1993)).
22 See Beach Commc’ns, Inc., 508 U.S. at 315; see also Murgia, 427 U.S. at 315.
23 Heller, 509 U.S. at 320 (noting that, when reviewing a governmental classification under rational basis review, a
governmental action is “presumed constitutional” and the burden lies on the party attacking the governmental action to
establish the action’s unconstitutionality.).
24 U.S. Const. amend. XIV, §1; U.S. Const. amend. V.
25 See U.S. Const. amend. XIV, §1; U.S. Const. amend. V.
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the government from taking action that unduly burdens certain liberty interests.26 More
specifically, substantive due process protects against undue governmental infringement upon
fundamental rights.27 To this end, the Supreme Court has held that governmental action infringing
upon fundamental rights is subject to strict scrutiny,28 and thus must be narrowly tailored to a
compelling governmental interest.29
Under strict scrutiny, the government must generally show that it has a “substantial” and
“legitimate” need for its action to be in furtherance of a compelling government interest.30 If the
government successfully establishes a compelling interest, its action cannot encumber
fundamental rights any more than is necessary to achieve the government’s need.31 Additionally,
the government could not have possibly taken alternative action that would similarly further its
interest while being less burdensome on fundamental rights.32 Otherwise, the government’s action
is not narrowly tailored to the government’s interest.33
The Supreme Court has recognized a number of rights as fundamental, including the right to have
children,34 use contraception,35 and marry.36 Generally, when parties have sought the invalidation
of same-sex marriage bans under the Constitution’s substantive due process guarantees, they have
argued that prohibiting same-sex couples from marrying infringes upon the fundamental right to
marry. The circuit courts have split regarding whether state same-sex marriage bans violate the
Fourteenth Amendment’s guarantees, and in doing so, they have interpreted Supreme Court
precedent in differing ways.
The Supreme Court Precedent Contributing to the
Circuit Split
Until recently, state same-sex marriage bans were seemingly insulated from Fourteenth
Amendment equal protection and due process challenges by the Supreme Court’s decision in
Baker v. Nelson.37 In Baker, a same-sex couple challenged a Minnesota statute before the
Minnesota Supreme Court, arguing that the statute, which referred to marriage as between a
26 See Washington v. Glucksberg, 512 U.S. 702, 719-720 (1997).
27 See id.
28 See Reno v. Flores, 507 U.S. 292, 301-02 (1993).
29 Id (observing that a line of Supreme Court cases interprets the Fifth and Fourteenth Amendment’s due process
principles to “forbid[] the government to infringe certain ‘fundamental’ liberty interests at all … unless the
infringement is narrowly tailored to serve a compelling state interest.”).
30 San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 98 (1973).
31 See Dunn v. Blumstein, 405 U.S. 330, 343 (1972).
32 Id (“if there are other, reasonable ways to achieve [government interests] with a lesser burden on constitutionally
protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose ‘less drastic
means.’”) (quoting Shelton v. Tucker, 364 U.S. 479, 488 (1960)).
33 See id.
34 Skinner v. Okla., 316 U.S. 535 (1942).
35 Griswold v. Connecticut, 381 U.S. 479 (1965).
36 Loving v. Virginia, 388 U.S. 1 (1967).
37 409 U.S. 810 (1972).
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“husband and wife,” violated the Constitution’s due process and equal protection principles.38
More specifically, the plaintiffs argued that substantive due process’ protection of the
fundamental right to marry applied equally to opposite-sex and same-sex couples, and that
prohibiting same-sex marriages denies those in same-sex relationships equal protection of the
law.39 The Minnesota Supreme Court rejected both of these arguments. According to the court,
the fundamental right to marry did not include the right of same-sex couples to marry,40 and
Minnesota’s classification of persons who are authorized to marry did not offend the
Constitution’s equal protection principles.41 The court seemingly utilized rational basis review,
and rested its conclusion on the fact that Minnesota did not classify those authorized to marry
with any “irrational or invidious discrimination.”42
The plaintiffs in Baker then appealed to the U.S. Supreme Court, which was required to grant
review under a now-defunct statute mandating that the Court accept appeals of state supreme
court cases wherein state statutes face constitutional challenges.43 The plaintiffs’ appeal asked the
Supreme Court to consider whether Minnesota’s refusal to recognize their marriage: (1) deprived
them of due process of the law under the Fourteenth Amendment; (2) violated their rights under
the Fourteenth Amendment’s Equal Protection Clause; or (3) deprived them of their right to
privacy under the Ninth and Fourteenth Amendments.44 The Supreme Court summarily dismissed
the appeal, that is, dismissed it without an opinion “for want of [a] substantial federal question.”45
A summary dismissal is considered a decision on a case’s merits, and is thus binding on lower
courts.46 That is, a summary dismissal rejects the specific issues challenging an appealed
decision, and this dismissal creates precedent that lower federal courts must then follow when
considering the same issues.47 Therefore, in the immediate wake of the Supreme Court’s summary
dismissal in Baker, it appeared as though lower federal courts had to dismiss challenges to state
same-sex marriage bans that were based on the Constitution’s equal protection and due process
principles. However, the Supreme Court has also held that summary dismissals are no longer
binding precedent when doctrinal developments show that the Court now views the issues
summarily decided as raising “substantial federal question[s].”48
The circuit courts that have considered equal protection and due process challenges to state same-
sex marriage bans are split regarding whether Baker requires them to dismiss such claims. The
U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit) has held that Baker precludes it from
evaluating equal protection and due process challenges to state same-sex marriages.49 Conversely,
the U.S. Courts of Appeals for the Fourth,50 Seventh,51 Ninth,52 and Tenth53 Circuits have all held
38 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971).
39 Id. at 186.
40 Id. at 187.
41 Id.
42 Id.
43 28 U.S.C. §1257 (1970).
44 Jurisdictional Statement of Appellants at 3, Baker v. Nelson, 409 U.S. 810 (1972).
45 Baker, 409 U.S. at 810.
46 Hicks v. Miranda, 422 U.S. 332, 344 (1975).
47 See Mandel v. Bradley, 432 U.S. 173, 176 (1977).
48 See Hicks, 422 U.S. at 344-45.
49 DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014).
50 Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014).
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that doctrinal developments since Baker—more specifically, the Supreme Court’s decisions in
Romer v. Evans,54 Lawrence v. Texas,55 and United States v. Windsor56—indicate that the Court
now views the issues summarily decided in Baker as raising substantial federal questions.
Accordingly, these circuit courts have held that Baker does not preclude their review of equal
protection and due process challenges to state same-sex marriage bans.
Romer v. Evans
In Romer v. Evans (1996), the Supreme Court was tasked with determining whether a Colorado
constitutional amendment, which prohibited all legislative, executive, or judicial action designed
to protect gay people from discrimination, violated the Fourteenth Amendment’s Equal Protection
Clause. The Court observed that governmental action that does not burden a fundamental right or
target a suspect class receives rational basis review, and thus must be upheld so long as the
government’s classification is rationally related to a legitimate government interest.57 Though the
Court did not state that gay individuals are not a suspect class or that the Colorado amendment at
issue did not burden a fundamental right, it may have implicitly declared as much by seemingly
using a form of rational basis review when evaluating the amendment.58 According to the Court,
the requirement that governmental classifications be rationally related to a legitimate
governmental interest ensures that governmental classifications are not intended to disadvantage a
particular group.59
Colorado argued that its constitutional amendment did nothing more than deny special protections
to individuals who are gay, and thereby put them in the same position as all other people.60 The
Court disagreed, observing that the amendment imposed a “broad and undifferentiated” disability
on gay people, the breadth of which was incongruent with the states proffered rationale of
denying special rights to such individuals.61 According to the Court, the Colorado constitutional
amendment could only have been enacted out of animus toward individuals who are gay, and thus
was not rationally related to a legitimate state interest.62 As such, the Court invalidated the
amendment.63
(...continued)
51 Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014).
52 Latta v. Otter, 771 F.3d 456 (9th Cir. 2014).
53 Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014).
54 517 U.S. 620 (1996).
55 539 U.S. 558 (2003).
56 133 S.Ct. 2675 (2013).
57 Romer, 517 U.S. at 631.
58 Id.
59 Id. at 633.
60 Id. at 626.
61 Id. at 632.
62 Id.
63 Id.
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Lawrence v. Texas
The Supreme Court seemingly expanded the rights of gay people under substantive due process
principles in Lawrence v. Texas (2003). At issue in Lawrence was a Texas statute that criminalized
same-sex sexual contact.64 The plaintiffs were two gay men who were arrested and convicted of
violating the statute.65 The Court considered whether the Texas statute violated the Fourteenth
Amendment’s substantive due process protections. Previously, in Bowers v. Hardwick66 (1986),
the Supreme Court had held that a similar state statute did not violate substantive due process
principles after finding that the fundamental right to privacy does not extend to homosexual
sodomy.67 Because it found no fundamental right at issue, the Court in Bowers then applied
rational basis review in upholding the statute.68 In doing so, the Court seemingly found that states
can have a legitimate interest in upholding majority notions of morality, and that the sodomy
statute at issue was rationally related to this interest.69
Justice Kennedy’s majority opinion in Lawrence explicitly overruled Bowers.70 In so doing, the
Court stated that liberty protections arising from substantive due process extend to private sexual
relationships between two consenting adults, including individuals who are gay.71 As such, the
Court held that gay people have the “full right” to engage in private, consensual sexual conduct.72
However, the Court did not clarify the proper level of scrutiny to be used when considering laws
that prohibit consensual sexual activity between such individuals. At no point in the opinion did
the Court determine whether the right of gay people to engage in sexual activity is a fundamental
right, nor did it mention strict scrutiny or rational basis review. The closest the Court came to
doing so appears toward the end of the majority opinion, when the Court stated:
The Texas statute furthers no legitimate state interest which can justify its intrusion into the
personal and private life of the individuals.73
This language suggests that the Court may have applied a version of rational basis review, which
requires a showing that the statute is rationally related to a legitimate government interest. Even
so, Lawrence marks an advancement in the rights of gay individuals as it was the first time that
the Court recognized that the Constitution’s substantive due process protections can extend to
same-sex sexual activity.
64 Lawrence, 539 U.S. at 563.
65 Id. at 563.
66 478 U.S. 186 (1986).
67 Id. at 190.
68 Id. at 196.
69 See id.
70 Lawrence, 539 U.S. at 525 (“Bowers was not correct when it was decided, and it is not correct today. It ought not to
remain binding precedent. Bowers v. Hardwick should be and now is overruled.”).
71 Id. at 578.
72 Id. at 578.
73 Id.
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United States v. Windsor
In United States v. Windsor (2013), the Supreme Court struck down Section 3 of the federal
Defense of Marriage Act (DOMA), which required marriage to be defined as the union of one
man and one woman for purposes of federal laws and regulations.74 In doing so, the Court relied
on equal protection and due process considerations, along with the federalism-based rationale that
marriage is an area historically left to state regulation.
The plaintiff in Windsor and her late spouse were New York residents whose same-sex marriage
was legally recognized in New York, though they were married elsewhere.75 The deceased spouse
left her entire estate to the plaintiff.76 However, because of DOMA, the deceased spouse’s estate
could not claim the marital exemption from the federal estate tax and paid $363,053 in taxes,
leading the plaintiff to seek a tax refund.77 The Internal Revenue Service denied the refund,
determining that the plaintiff was not a “surviving spouse” under DOMA.78 The plaintiff
subsequently filed suit, claiming that DOMA violated the Fifth Amendment’s Equal Protection
Clause.79
In finding Section 3 of DOMA unconstitutional, Justice Kennedy’s majority opinion raised
principles of federalism by examining the historical relationship between the federal and state
governments concerning domestic relations. The Court observed that marriage was traditionally
regulated by the states, and that states had “historic and essential” authority to define marital
relations, subject to the limits of constitutional guarantees.80 The Court then seemingly took issue
with the fact that DOMA departs from this historical practice of relying on state definitions of
marriage.81
The Court also considered equal protection and due process principles in invalidating Section 3.
The Court observed that the Fifth Amendment prohibits congressional action that subjects a
politically unpopular group to disparate treatment for the purpose of harming that group.82 The
purpose of DOMA, the Court found, was to disadvantage and stigmatize same-sex marriages, as
evidenced by the statute’s legislative history, text, and primary effect.83 By attempting to injure
same-sex married couples, which New York sought to protect, the Court determined that DOMA
“violate[d] basic due process and equal protection principles applicable to the Federal
Government.”84
While the Court resolved the question of the constitutionality of a federal definition of marriage
that excludes same-sex couples in Windsor, it left a number of unanswered questions. Though it is
74 P.L. 104-199, §3, 110 Stat. 2419, 2419 (1996).
75 Windsor, 133 S. Ct. at 2683.
76 Id.
77 Id.
78 Id.
79 Id.
80 Id. at 2692.
81 See id.
82 Id. at 2393.
83 See id. at 2393-94.
84 Id. at 2393.
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clear that federalism played a role in the Court’s decision, it is unclear just how determinative it
was toward the outcome. For example, Justice Roberts, dissenting in Windsor, seemingly
suggests that federalism played a key role in the majority’s opinion, observing that the state’s
traditional power to define marital relations was of “central relevance” to the majority’s decision
to invalidate DOMA.85 Conversely, Justice Scalia, dissenting in Windsor, seemingly suggests that
federalism played a smaller role in the majority’s opinion, noting that the majority opinion
“formally disclaim[s] reliance upon principles of federalism” at one point.86 This apparent
ambiguity has contributed to differing outcomes when lower courts have considered state same-
sex marriage bans, as discussed in more depth below, because such state bans lack the federalism
implications of a federal statute like DOMA. Additionally, the Court did not address whether
same-sex couples have a fundamental right to marry, or whether sexual orientation classifications
warrant heightened scrutiny. In Windsor’s wake, lower courts were left to grapple with these
issues.
Current Circuit Split
In the wake of Windsor, a number of challenges to state same-sex marriage bans made their way
into federal courts. These courts have generally been tasked with determining whether, as an
initial matter, Baker precludes their review of state same-sex marriage bans, or whether doctrinal
developments after that case—namely, Romer, Lawrence, and Windsor—render it non-binding.
These courts have also considered the appropriate level of scrutiny for classifications based on
sexual orientation required under the Constitution’s equal protection principles, and whether the
fundamental right to marry under the Constitution’s due process principles incorporates same-sex
marriage. In resolving these questions, a circuit split developed.
Four Circuits Strike Down State Same-Sex Marriage Bans
The U.S. Courts of Appeals for the Fourth, Seventh, Ninth, and Tenth Circuits have all
invalidated state same-sex marriage bans. In doing so, they have each determined that doctrinal
developments subsequent to Baker render that decision non-binding.87 More specifically, they
have held that doctrinal developments after Baker—primarily Supreme Court’s decisions in
Romer, Lawrence, and Windsor—make clear that the issue of whether state same-sex marriage
bans violate the Fourteenth Amendment’s equal protection and due process principles does, in
fact, raise a substantial federal question.88
85 Id. at 2697 (Roberts, J., dissenting).
86 Id. at 2705 (Scalia, J., dissenting).
87 Bostic v. Schaefer, 760 F.3d 352, 375 (4th Cir. 2014) (“In light of the Supreme Court’s apparent abandonment of
Baker and the significant doctrinal developments that occurred after the Court issued its summary dismissal in that
case, we decline to view Baker as binding precedent …”); Baskin v. Bogan, 766 F.3d 648, 660 (7th Cir. 2014)
(observing that Romer, Lawrence, and Windsor “make clear that Baker is no longer authoritative); Latta v. Otter, 771
F.3d 456, 466 (9th Cir. 2014); Bishop v. Smith, 760 F.3d 1070, 1080 (10th Cir. 2014); Kitchen v. Herbert, 755 F.3d
1193, 1208 (10th Cir. 2014) (“Although reasonable judges may disagree on the merits of the same-sex marriage
question, we think it is clear that doctrinal developments foreclose the conclusion that the issue is, as Baker determined,
wholly insubstantial.”).
88 See, e.g., Bishop, 760 F.3d at 1080 (in holding Baker non-binding while considering the constitutionality of a state
same-sex marriage ban, noting that “[a]s any observer of the Supreme Court cannot help but realize, this case and
others like it present not only substantial but pressing federal questions.”).
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For example, the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) in Bostic v.
Schaefer found the Supreme Court’s development of its equal protection and due process
jurisprudence after Baker demonstrates that Baker is no longer binding precedent.89 Regarding
due process, the Fourth Circuit observed that Lawrence and Windsor “firmly position same-sex
relationships within the ambit of the Due Process Clauses’ protection,” contrary to Baker.90 The
Fourth Circuit similarly found that Supreme Court equal protection cases, including Romer and
Windsor, show that the court has substantially changed the way it considers sex and sexual
orientation in the equal protection context.91
After concluding that they are not bound by Baker, the Fourth, Seventh, Ninth, and Tenth Circuits
then turned to the question of whether state same-sex marriage bans violate the Fourteenth
Amendment’s equal protection or due process principles. On the one hand, the Fourth, Ninth, and
Tenth Circuits have all subjected state same-sex marriage bans to heightened levels of scrutiny
after finding that such bans infringe upon fundamental rights or create suspect classifications. The
Seventh Circuit, on the other hand, used rational basis review when invalidating state same-sex
marriage bans.
In Bostic, the Fourth Circuit held that the fundamental right to marry includes the right of same-
sex couples to marry.92 According to the Fourth Circuit, the right to marry belongs to each
individual and is not restricted by the characteristics of the individual seeking to utilize it.93 This
result, the Fourth Circuit suggested, is supported by Supreme Court precedent. For example, the
Fourth Circuit observed that in Lawrence, the Supreme Court did not determine that the right at
issue was the right of gay people to engage in sodomy, but rather the right of all people, including
individuals who are gay, to make decisions regarding their sexual relationships.94 After
determining that the fundamental right to marriage includes same-sex marriage and observing that
state same-sex marriage bans significantly infringe upon this right, the Fourth Circuit applied
strict scrutiny and invalidated such bans.95
In invalidating state same-sex marriage bans, the U.S. Court of Appeals for the Tenth Circuit
(Tenth Circuit) similarly relied on the fundamental right to marry in Kitchen v. Herbert and
Bishop v. Smith. In Kitchen, the Tenth Circuit held that the fundamental right to marry is properly
considered broadly as the right of the individual to marry, rather than narrowly as the right of
opposite-sex couples to marry.96 The Tenth Circuit followed Kitchen’s holding in Bishop.97 As
such, it applied strict scrutiny in both cases.98 In both cases, the Tenth Circuit held that state same-
sex marriage bans were not narrowly tailored to compelling government interests, and thus
invalidated such bans.99
89 Bostic, 760 F.3d at 374.
90 See id.
91 See id. at 374-75.
92 Id. at at 376.
93 See id. at 376-77.
94 See id. at 377.
95 Id. at 378, 384.
96 See Kitchen, 755 F.3d at 1209.
97 See Bishop, 760 F.3d at 1080.
98 Kitchen, 755 F.3d at 1218; Bishop, 760 F.3d at 1079.
99 Kitchen. 755 F.3d at 1229-30; Bishop, 760 F.3d at 1081-82.
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In Latta v. Otter, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit), like the Fourth
and Tenth Circuits, subjected state same-sex marriage bans to heightened scrutiny. However, the
Ninth Circuit’s majority opinion in Latta differed from the Fourth and Tenth Circuit opinions as it
relied on equal protection principles. The Ninth Circuit observed that equal protection guarantees
require classifications based on sexual orientation to be subject to heightened scrutiny, but did not
consider whether the fundamental right to marriage includes the right to same-sex marriage.100
The U.S. Court of Appeals for the Seventh Circuit (Seventh Circuit)—unlike the Fourth, Ninth,
and Tenth Circuits—did not apply heightened scrutiny in striking down state same-sex marriage
bans in Baskin v. Bogan. The Seventh Circuit held that state same-sex marriage bans cannot
survive rational basis review as “[t]he discrimination against same-sex couples is irrational, and
therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny
…”.101 The Seventh Circuit observed that because such bans cannot pass constitutional muster
under equal protection principles, it had no reason to reach the question of whether or not the
fundamental right to marriage includes the right to same-sex marriage for purposes of the due
process clause.102
The Sixth Circuit Upholds State Same-Sex Marriage Bans
Unlike the Fourth, Seventh, Ninth, and Tenth Circuits, when tasked with evaluating the
constitutionality of four state same-sex marriage bans, the U.S. Court of Appeals for the Sixth
Circuit (Sixth Circuit) upheld such bans in DeBoer v. Snyder.103 As an initial matter, the Sixth
Circuit considered whether Baker prevented it from determining whether state same-sex marriage
bans violate the Fourteenth Amendment. The plaintiffs argued that Windsor limited Baker’s
applicability, and thus that the Sixth Circuit was not bound by Baker.104 The Sixth Circuit
disagreed.105 According to the Sixth Circuit, the outcomes and rationales of Baker and Windsor
are not inconsistent.106 More specifically, the Sixth Circuit reasoned that in invalidating Section 3
of DOMA, Windsor turned on the fact that DOMA, as a federal law, infringed on state authority
over marital relations, while Baker upheld the right of a state’s people to define marriage.107
The plaintiffs then argued that, if Windsor did not overrule Baker, doctrinal developments since
Baker (including Romer, Lawrence, and Windsor) render that case non-binding.108 According to
the Sixth Circuit, it can only disregard summary dismissals in two circumstances: (1) when a
Supreme Court decision overrules the summary dismissal by name; and (2) when the Supreme
Court overrules the summary dismissal by outcome.109 The Sixth Circuit held that neither
circumstance had occurred, finding that nothing in Romer, Lawrence, or Windsor expressly
100 See Latta, 771 F.3d at 468. In concurrence, one judge wrote separately to say that he would also have held that the
fundamental right to marry includes the right to same-sex marriage. Id. at 477 (Reinhardt, J., concurring).
101 Baskin, 766 F.3d at 656.
102 Id. at 657.
103 772 F.3d 388 (6th Cir. 2014).
104 Id. at 400.
105 Id.
106 Id.
107 See id.
108 Id. at 401.
109 Id.
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overruled Baker, nor was any of the three inconsistent with Baker’s outcome.110 Though the Sixth
Circuit observed that it was bound by Baker, it did discuss whether state same-sex marriage bans
violate the Fourteenth Amendment’s equal protection and due process guarantees.
The Sixth Circuit determined that state same-sex marriage bans are subject to rational basis
review when analyzed under either equal protection or substantive due process guarantees of the
Fourteenth Amendment. Regarding equal protection, the Sixth Circuit observed that the Supreme
Court has never held that classifications based on sexual orientation are suspect or entitled to
heightened review.111 The Sixth Circuit also noted that its precedents have held that classifications
based on sexual orientation receive rational basis review.112 Regarding substantive due process,
the Sixth Circuit determined that the fundamental right to marry does not include the right to
same-sex marriage.113
In applying rational basis review to state same-sex marriage bans, the Sixth Circuit observed that
the standard is highly deferential to the government.114 However, the Sixth Circuit did observe
that governmental action motivated by animus toward a particular group of people cannot pass
rational basis review.115 The state same-sex marriage bans at issue in the case, the Sixth Circuit
observed, were constitutional amendments voted on by the citizens of each respective state.116
The Sixth Circuit reasoned that it could not attribute one motivation—animus—to all of the
voters in each state that wished to pass same-sex marriage bans, and thus found no animus
present.117 The Sixth Circuit determined that state same-sex marriage bans are rationally related to
two legitimate state interests: (1) incentivizing people who procreate to stay together during child
rearing; and (2) the desire to “wait and see” before changing marriage norms that have existed for
centuries.118 Accordingly, the Sixth Circuit found that such bans survive rational basis review.119
Supreme Court Appears Poised to Resolve the Circuit Split
On January 16, 2015, the Supreme Court announced that it was consolidating and granting review
of the four state same-sex marriage ban cases that the Sixth Circuit decided in DeBoer v.
Snyder.120 On appeal, the Court will be considering two questions:
1. Does the Fourteenth Amendment require a state to license a marriage between two people
of the same sex?
110 See id. at 401-02.
111 Id. at 413.
112 Id.
113 Id. at 411-12.
114 Id. at 405 (“So long as judges can conceive of some ‘plausible’ reason for the law—any plausible reason, even one
that did not motivate the legislators who enacted it—the law must stand, no matter how unfair, unjust, or unwise the
judges may consider it to citizens.”) (emphasis in original).
115 Id. at 408.
116 Id. at 409.
117 Id. at 409-10.
118 Id. at 405-6.
119 See id. at 406.
120 Certiorari Granted, Nos. 14-556, 14-562, 14-571, 14-574, available at http://www.supremecourt.gov/orders/
courtorders/011615zr_f2q3.pdf.
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2. Does the Fourteenth Amendment require a state to recognize a marriage between two
people of the same sex when their marriage was lawfully licensed and performed out-of-
state?
Commentators have remarked on the likelihood that a final ruling on these two questions will
result in a split vote, with Justice Kennedy’s vote determinative.121 In answering these two
questions, the Court could reach one of multiple conclusions. These possibilities are outlined
below.
The Court Could Arguably Uphold State Same-Sex Marriage Bans
The Court could, for example, potentially decide that the Fourteenth Amendment does not require
states to permit same-sex marriages nor to recognize same-sex marriages that were lawfully
licensed and performed out-of-state. If the Court were to reach this conclusion, it could arguably
do so by finding that state same-sex marriage bans neither create suspect or quasi-suspect
classifications, nor infringe upon fundamental rights, and thus are not subject to heightened
scrutiny under the Fourteenth Amendment’s equal protection and due process guarantees, just as
the Sixth Circuit did in DeBoer. In line with DeBoer, the Court might find that because the state
same-sex marriage bans at issue were enacted through majority vote of state citizens, who
presumably had varying motivations, the bans were not driven by animus toward gay individuals.
The Court might then, as in DeBoer, find that state statutes and constitutional amendments that
prohibit same-sex marriages and deny recognition of same-sex marriages legally formed in other
states are rationally related to legitimate state interests. If the Court were to reach this outcome,
states with same-sex marriage bans—including those whose bans had been struck down by lower
federal courts—could potentially prohibit same-sex couples from marrying and refuse to
recognize same-sex marriages legally formed in other states.
The Court Could Arguably Invalidate State Same-Sex Marriage Bans
In the alternative, the Court could potentially hold that the Fourteenth Amendment requires states
to permit same-sex marriages and to recognize same-sex marriages legally performed in other
states. The immediate effect of such a ruling would be that same-sex marriages would be legal in
all states. However, the Court’s rationale in reaching such a result would arguably be significant:
the Court could reach its conclusion in a way that has implications for the constitutional
guarantees for gay people outside of the marriage context, or it could limit its decision to only
expand the rights of such individuals within the marriage context.
For example, the Court might follow the approach of the Ninth Circuit and determine that
classifications based on sexual orientation are subject to heightened scrutiny. Such a holding
would arguably be broad, and would seem to subject all laws classifying individuals based on
sexual orientation—not only those pertaining to the ability of same-sex couples to marry—to
heightened constitutional scrutiny. Accordingly, such an approach seemingly could increase the
constitutional rights of gay people not just with regard to marriage, but in other areas as well.
121 See, e.g., Ashby Jones, In Same-Sex Cases, Justice Kennedy Likely to Cast Swing Vote, WALL STREET J., January 16,
2015, http://blogs.wsj.com/law/2015/01/16/in-same-sex-cases-eyes-likely-to-swing-to-justice-kennedy/; Richard Wolf,
Supreme Court Agrees to Rule on Gay Marriage, USA TODAY, January 16, 2015, http://www.usatoday.com/story/
news/nation/2015/01/16/supreme-court-gay-marriage/21867355/.
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On the other hand, the Court might conclude that the Fourteenth Amendment requires states to
permit same-sex marriages and recognize same-sex marriages legally formed in other states on
narrower grounds, which could limit its holding. For example, the Court might hold, as the Fourth
and Tenth Circuits have ruled, that the fundamental right to marry includes the right to same-sex
marriage. Such a finding would appear only to expand the rights of gay people within the
marriage context.
A further alternative might find the Court subjecting state same-sex marriage bans to rational
basis review, but concluding that they do not meet the requirements of this test, as the Seventh
Circuit has. In invalidating state same-sex marriage bans under rational basis review, the Court
might find that such bans are motivated by animus, similar to the state constitutional amendment
at issue in Romer, and thus potentially find that states lacked a legitimate interest in enacting
them. Such an approach could be perceived, particularly when considered with Romer, as a signal
that the Court may apply a less deferential version of rational basis review when considering
governmental action that harms individuals who are gay. However, such a finding could also just
be illustrative of the fact that the Court arguably finds state same-sex marriage bans and the law
at issue in Romer irrational.
The Court Could Resolve Each Question Differently
As a final alternative, the Court could hold that states are not required to permit same-sex
marriages to be formed in the states, but must recognize same-sex marriages lawfully formed in
other states. Under this analysis, the Court might, for example, invoke principles of federalism,
just as it did in Windsor, to essentially say that states have autonomy in defining who can get
married within their borders, but cannot disregard other states’ decisions to allow same-sex
marriages.
Conclusion
The Supreme Court appears poised to resolve the question of the constitutionality of state same-
sex marriage bans. On the one hand, if the Court were to uphold state same-sex marriage bans,
then same-sex couples could not get married in states with such bans enacted. Such a decision
could also invalidate the marriages of same-sex couples who were married in response to lower
courts striking down their states’ same-sex marriage bans. On the other hand, if the Court were to
find that state same-sex marriage bans are unconstitutional, it would seemingly broaden the rights
of gay individuals by permitting same-sex marriages in all states. Such a result could extend
certain state and federal benefits that accompany marriage to same-sex couples that currently lack
access to them.
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Author Contact Information
Rodney M. Perry
Legislative Attorney
rperry@crs.loc.gov, 7-5203
Acknowledgments
Alison M. Smith and Jody Feder, CRS Legislative Attorneys, may also be contacted regarding legal issues
concerning same-sex marriage. Alison M. Smith may be contacted at amsmith@crs.loc.gov, 7-6054. Jody
Feder may be contacted at jfeder@crs.loc.gov, 7-8088.
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