Same-Sex Marriage Cases Loom for Supreme Court
For advocates and foes of same-sex marriage, two names have suddenly taken center stage in the legal universe: Kennedy and Romer.
Kennedy — that would be Associate Justice of the U.S. Supreme Court Anthony Kennedy — is the court’s perennial swing vote. Romer — as in Romer v. Evans — is the 1996 decision penned by Kennedy that struck down a Colorado amendment barring the state from passing laws to protect homosexuals and bisexuals.
The two names are in the spotlight because last Thursday a federal appeals court panel in Boston found that a central provision of the Defense of Marriage Act — which defines marriage as between a man and a woman — is unconstitutional. The ruling propels the DOMA case toward the high court, where Kennedy’s interpretation of Romer, a case that turned on the 14th Amendment’s Equal Protection Clause, will be pivotal.
The clause prohibits the states from denying citizens equal protection under the law. Over time the Supreme Court has carved out more rigorous protection for groups that have faced discrimination over such fixed characteristics as race, religion and gender. In the jargon of the court, these factors deserve a higher level of scrutiny than other claims of discrimination — claims based on, say, weight or economic status.
The notable development in Romer was that the court appeared to open the door to including sexual orientation as one of those special categories. “From the time Romer came out, a lot of people believed the court was applying a higher level of scrutiny … but just not saying so,” said Steve Sanders, who teaches constitutional law at the University of Michigan Law School.
In the DOMA case, the 1st Circuit Court of Appeals in Boston, while relying on Romer, was explicit about the fact that it was applying a more searching level of scrutiny. According to Yale Law School Professor William Eskridge, attention will now turn to the author of Romer. “I’m tempted to say everything will hinge on whether Justice Kennedy reads Romer as broadly,” said Eskridge.