Rational basis and restrictions on same-sex marriage
Given that one persons prejudice is another persons principle, it is often difficult to predict in advance what the Court will deem to be animus. With respect to sexual orientation, however, the Court has deemed anti-gay views to constitute animus and applied rational basis with bite. In the Romer case, the Court observed that gays and lesbians had been the victims of animus, as described above. In the 2003 case of Lawrence v. Texas, the Court also determined (without applying formal strict scrutiny) that statutes criminalizing same-sex sodomy did not pass constitutional muster under the Due Process Clause. Lawrence can thus be read, at a minimum, as a due process rational-basis with bite case. A critic could counter that Lawrence was a case about same-sex sexual conduct rather than about homosexual status. Just last Term, however, the Court rejected this conduct/status distinction in Christian Legal Society v. Martinez. The majority opinion asserted that [o]ur decisions have declined to distinguish between status and conduct in this context, citing Lawrence for the proposition that [w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination. This constellation of precedents suggests that the Court will apply rational basis with bite rather than ordinary rational basis to discrimination against gay people, including restrictions on same-sex marriage.
Nor will the Court have to look far to find animus motivating recent restrictions on same-sex marriage. Last Friday, the plaintiffs in one of the DOMA cases catalogued some of the statements in the congressional record leading up to the passage of the Act in 1996. As discussed in that memorandum, Reprentative Barr characterized homosexuality as hedonism, narcissism, and self-centered morality. Representative Funderburk described homosexuality as inherently wrong and harmful to individuals, families, and societies. Representative Smith referred to same-sex sexual intimacy as unnatural and immoral.
Much debate has centered on whether sexual orientation deserves the strict or intermediate scrutiny that the Court accords to classifications such as race, national origin, alienage, non-marital parentage, and sex. While important, this debate often leaves the false impression that the plaintiffs in the marriage cases cannot prevail without acquiring either strict or intermediate scrutiny. Cases such as Reed, Eisenstadt, Moreno, Plyler, Cleburne, and Romer demonstrate otherwise.
In addition to making the best case for heightened scrutiny, plaintiffs should press the Court to apply rational basis with bite. And the Court should clarify its own practice, noting that rational basis with bite obtains once the Court discerns the presence of actual animus, not after the Court has proven the absence of all conjectured rationales.
Why the Court can strike down marriage restrictions under rational-basis review : SCOTUSblog