Let’s use Bricker’s example as established caselaw, and apply that case to the question at hand, the banning of same sex marriage. Since Bricker has already conceded that, under Substantive Due Process analysis, bans on gay marriage are unconstitutional, we will limit this discussion only to Equal Protection.
First, let’s look at “What classifications does the law create?” In relation to same sex marriage, that classification is simple: heterosexuals and homosexuals. One can get married to the person of their choice and one can not.
Second, we can look at “Are they “suspect” classifications?” Well, I am aware that there are very few cases indeed in which sexual orientation is found to be a suspect class. It certainly is not a traditionally accepted classification, the big one being race, and the lesser ones being gender, national origin, alienage, indigency, or illegitimacy. But if we look to the language of the case which Bricker is discussing, you find this language: “The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Now, going simply from this language in the case, it could easily be argued that same sex partners is saddled with a disability of not being allowed to obtain marriage benefits, that they have been subjected to such a history of purposeful unequal treatment (sodomy legislation, etc.), and they, being a distinct minority that, given the amount of anti-homosexual referenda that was adopted in November, seem to be in a position of political powerlessness as to command extraordinary protection from the majority. So, although it has yet to be a truly successful argument, using Bricker’s case, it is a sound, strong argument to make.
Third, let’s look at “Is there a fundamental right in play here?” Rather than rehash my prior answer of Yes, of course!, let’s look again at Bricker’s case. In that case, SCOTUS stated: “Each of our prior cases involved legislation which “deprived,” “infringed,” or “interfered” with the free exercise of some such fundamental personal right or liberty.” For that proposition, SCOTUS cited Skinner v. Oklahoma. Well, in Skinner, SCOTUS stated: “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.” Now, putting it all together, you have Bricker’s judges citing a case that states that Marriage is a fundamental right. Seems to me that, well, yes, marriage is a fundamental right.
Fourth, let’s look at “What standard of review is appropriate here?”. Well, given that marriage is a fundamental right, and legislation banning same sex marriage infringes upon that right, it seems to me that strict scrutiny should apply. Of course, it is also arguable that the discrimination against homosexuals involves a suspect class, I’ll go with the stronger precedent and say that it probably doesn’t for that reason, but it still does for infringing on a fundamental right.
Fifth, and finally, “What should the court do?” Well, given that I don’t think the ban on same sex marriages even meets the rational basis test, it sure as shooting doesn’t meet the strict scrutiny test. So, it appears that, yes, legislation banning same sex marriages does violate the Equal Protection Clause of the United States’ Constitution.
Whew.
