Gay Marriage DP/EP Analysis Outline

Due Process

• Defining the Right
• The Court has said to define the right at the most specific level of generality possible
• Right to marry?
• Tradition of protecting this
• Loving v. Virginia
• But the tradition mostly only contemplated conjugal marriage - Skinner
• So strict scrutiny
• Right to engage in homosexual activity?
• No tradition of protecting this
• So rational basis
• Lawrence and emerging values
• This would be helpful for proponents to argue because the public is beginning to recognize gay marriage as normal
• Especially because the right to marry is a more general right than the right to gay marriage, which is more specific (Glucksberg)


• State law to justify?
• If rational basis
• Needs to be legitimate state interest
• Morality might not be a legit state interest - Lawrence
• State's interest in procreation - that's a legitimate state interest
• If strict scrutiny
• Needs to be compelling state interest
• Morality is not a compelling state interest - Lawrence
• State's interest in procreation - but that's probably not compelling

Equal Protection

• Can homosexuality be placed in an already existing category?
• Race is no good
• Gender is the best analogy, but it's not the same


• Is homosexuality a suspect class?
• Discrete and insular minority
• Most likely yes
• But there is some middle ground
• It's possible to define the group as persons who want to marry a person of the same sex
• The pregnancy discrimination thing from Geduldig - not discriminating against gays,  but discrimination against same sex couples, but that's a weak argument
• Visible and Immutable
• Visible? No
• Immutable? No, though some people think it is
• Historically been discriminated against
• Anti-sodomy laws
• Social discrimination
• Relevance of the characteristic to distributions of government benefits and burdens
• One of the state's biggest interests in marriage is its potential for procreation, which is physically impossible for homosexuals
• Characteristic is probably relevant to this particular distinction


• Court has said it's not a suspect class in Romer
• And that they get rational basis but maybe with some teeth


• Level of Scrutiny
• Strict
• Probably not because the characteristic is relevant to the distribution of government benefits and burdens
• Intermediate
• If anything, this is where it would belong
• It has many characteristics of a suspect class, but doesn't rise to the level of when it would need strict scrutiny
• Rational basis
• This is where the Court has previously put homosexuality, but it has too many characteristics of a suspect class to get rational basis


• Is marriage a fundamental right?
• Loving and Zablocki
• Both said marriage was a fundamental right, but both only contemplated conjugal marriage
• If yes fundamental right
• Strict scrutiny
• If not fundamental right and no suspect class
• Rational basis - was it reasonable?