Laboratories of Constitutionality: How State High Courts Paved the Way for Federal Courts to Invalidate Prohibitions on Same-Sex Marriage

Tyler T. Rosenbaum, Brown University

Abstract

This article looks at the opinions of the state high courts that have adjudicated the constitutionality under their state constitutions of prohibitions on same-sex marriage and, given the extent to which the state high courts deferred to Supreme Court case law in interpreting their own constitutions, concludes that a federal court would be more likely than not to find that such prohibitions violate the United States Constitution.

With respect to a claimed substantive due process right to same-sex marriage, the Supreme Court’s ruling in Lawrence v. Texas undermined much of the precedent that would have required a careful, tradition-bound analysis. Applying the more expansive conception of personal liberty that infused Lawrence and most previous Supreme Court decisions relating to marriage logically leads to the conclusion that same-sex couples possess the fundamental right to marry, the infringement of which must survive strict scrutiny.

Moreover, sexual orientation fulfills all of the prongs of the federal suspectness inquiry and is therefore a suspect- or quasi-suspect classification entitled to heightened scrutiny. Additionally, careful analysis shows that preventing same-sex couples from marrying rationally furthers none of the few state interests generally proffered as justifications for doing so.

Finally, requiring civil unions that are theoretically equal to, but not referred to as, marriage clearly constitutes the establishment of a “separate-but-equal” institution similar to the racial segregation famously declared unconstitutional half a century ago. Rather, the justifications for maintaining prohibitions on same-sex marriage are strikingly weak and remarkably prone to federal constitutional attack.