I almost wrote that headline as “New Mexico legalizes gay marriage,” but since there actually are states where the legislature has made this move instead of having had it imposed on them by the courts, it’s worth being precise.
The opinion’s only 31 pages long and a chunk of that is devoted to skippable procedural blather, but if you’re pressed for time you’ll do fine with the summary on page 8. As usual, SSM opponents argued that marriage is an institution built around procreation, which is why it should be exclusive to straights. And as usual, the court ruled against them because no state anywhere makes procreation a condition of marriage between men and women and no state forbids divorce between a married couple simply because they might have children. Many states permit gays to adopt, in fact, further weakening the theory that childrearing is the province of straights only. Marriage is about commitment between the participants, says the court, not about children that that commitment may or may not produce.
With that argument having failed, opponents made another traditional argument: Even if there’s no compelling state interest in limiting marriage to straights, courts usually don’t demand that the state offer a “compelling” reason to justify discriminating among different classes of people. The state could raise taxes on millionaires tomorrow by 50 percent and defend itself by saying “just because” and a court would probably rubber-stamp it. In an equal protection analysis, virtually everything turns on the court first deciding whether the group that’s targeted by the discrimination is a “suspect class” or not. There are a bunch of factors involved in that — whether they’ve suffered a history of discrimination, whether the trait that’s being targeted by the discrimination is core to their identity like race or religion, and whether the group is so politically powerless that the courts need to take extra care to protect their rights because they don’t have the numbers to do it themselves. The last factor is the interesting one here, especially coming a day after A&E bounced the star of one of the most popular shows on American television in sheer terror of the boycott that might ensue if they didn’t. Are gays, a small part of the population, still politically powerless in an age when 17 states now allow gay marriage and the president of the United States boasts that he supports legalizing the practice coast to coast?
Yeah, sort of, says the court. Skip to paragraph 49 on page 22.
Refocusing on the contention that the LGBT community is not politically powerless, we recognize that they have had some recent political success regarding legislation prohibiting discrimination against them. However, we also conclude that effective advocacy for the LGBT community is seriously hindered by their continuing need to overcome the already deep-rooted prejudice against their integration into society, which warrants our application of intermediate scrutiny in this case… The political advocacy of the LGBT community continues to be seriously hindered, as evidenced by the uncontroverted difficulty in determining whether LGBTs are under-represented in positions of political power, because many of them keep their sexual orientation private to avoid hostility, discrimination, and ongoing acts of violence… FBI statistics show that the rates of hate crimes committed against individuals based on sexual orientation have remained relatively constant over the past two decades, although they have risen slightly in the past few years, both in absolute numbers and expressed as a percentage of all types of hate crimes… It is reasonable to expect that the need of LGBTs to keep their sexual orientation private also hinders or suppresses their political activity…
Although the LGBT community has had political success, they have also seen their gains repealed by popular referendums…
At the time this case was argued in October, 2013, only a minority of states had enacted laws identifying “sexual orientation” as a protected class for purposes of antidiscrimination laws. Only six states had recognized the validity of and enacted legislation permitting same-gender marriages, or civil unions, at the time this opinion was filed… Four states, Massachusetts, California, Iowa, and Connecticut, interpreted their respective constitutions to require same-gender marriages… In three states, Maine, Maryland, and Washington, the electorate voted in favor of same-gender marriages… Finally, three states, New Jersey, Illinois, and Colorado, have legislation that grants samegender couples an alternative to civil marriage and makes available to them many of the benefits granted to married couples… The history we have just recounted demonstrates that the members of the LGBT community do not have sufficient political strength to protect themselves from purposeful discrimination.
They’ve gained some political power, in other words, but not enough to disqualify them from “suspect class” status for equal-protection purposes. Once the court makes that move, it’s an easy transition to deciding that no, the state’s “procreation” theory isn’t nearly “compelling” enough to justify limiting marriage to straights only. An obvious question, then: What sort of political gains would the court need to see to conclude that gays are no longer powerless and therefore can fight discriminatory laws on their own through the political process? If half the states end up legalizing gay marriage, is that sufficient? Three quarters? Effectively, I think, there’s no way to lose “suspect class” status once you’ve got it, no matter how much progress you make in convincing the electorate to protect your interests. Legal eagles are invited to correct me, but I don’t think there’s ever been a case of a “suspect class” in America, whether at the state or federal level, being downgraded by a court to non-suspect status because they’ve succeeded so wildly at vindicating their rights in the court of public opinion and at the ballot box. It could happen, I guess — theoretically, the “suspect class” calculus is in part a moving target based on how tolerant society at large is of a particular minority’s rights — but it’s impossible to imagine it happening in practice. The U.S. Supreme Court will long since have ruled that all 50 states must recognize same-sex marriage as a matter of Fourteenth Amendment equal protection before the question of whether gays no longer deserve special judicial protection lands on America’s political radar.