~ In for a dime, in for a dollar! Here’s Mark Rubin Writes on same sex marriage.

In Windsor v. United States, the U.S. Supreme Court held unconstitutional that portion of the Defense of Marriage Act (DOMA)—Section 3—which defined marriage as a union between a man and a woman. Windsor forced the federal government to accept marriages entered into lawfully in any state or foreign country. Windsor did not, however, address state same sex marriage laws.

Since Windsor, and relying on its due process/equal protection rationale, trial and appellate courts have found state same-sex marriage bans unconstitutional, with one exception. Many cases are pending. Utah and Virginia, so far, are seeking relief in the Supreme Court.

The Court will almost certainly face two basic issues:  Can states ban same-sex marriages; and does Section 2 of DOMA, which allows states to ignore same-sex marriages from other states, survive? Assuming the answer to question 1 is no, question 2 is moot.

Courts have had no difficulty dealing with the first question. Bostic v. Schaefer, the Fourth Circuit Court of Appeals decision that will likely get Supreme Court review, is instructive. The court, sitting in very conservative Richmond, held 2-1 that a ban on same sex marriages violates the 14th Amendment’s due process and equal protection clauses. The court had before it a trial court ruling striking down Virginia same sex marriage laws, along with another case in which a trial judge had certified a class of same sex couples wanting the right to marry.

The court looked at standing, and had no difficulty with the issue. Then it looked at the viability of a one sentence decision in a 1972 same sex marriage case, which the Supreme Court ignored in Windsor. Not worth considering, the court said.

Finally, the court examined “which level of constitutional scrutiny applies here and test the Virginia Marriage Laws using the appropriate standard.” And that is today’s important lesson! In due process/equal protection cases, the Supreme Court sets a review standard, and with that decision the outcome is almost always determined. Sort of like “tell me the rules, and I’ll identify the winner.”

And the scrutiny standards? Under rational basis standard, courts uphold laws if there is any rational basis to support them. Court deference to legislative bodies supports the rational basis standard. (When the rational basis standard gets applied, the law is almost always upheld.)

Where fundamental rights are involved, however, courts apply a strict scrutiny standard, or an intermediate standard, giving less deference to lawmakers. And when a court applies the strict scrutiny or intermediate standard, the law is almost always tossed.

Here, the Fourth Circuit—and all but one other court in a post-Windsor case—held that the right to marry is a fundamental right, derived from “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Both sides in Bostic agreed generally on this issue; however, same sex marriage opponents argued that the fundamental right relates only to heterosexual unions. They lost that argument, largely because the Supreme Court has upheld the fundamental nature of the right to marry several times.

So, now, we get to the heart of the same sex marriage opponents’ difficult case. They argue that the state has a compelling state interest in limiting marriage to a heterosexual union, and that Virginia’s law, which is motivated by a compelling state interest, must survive.

Space limits my focus to those claims which relate directly to marriage. (There are state’s rights and other claims.) Among the arguments:

Per the court, characterizing the opponents’ argument, “if same-sex couples—who cannot procreate naturally—are allowed to marry, the state will sanction the idea that marriage is a vehicle for adults’ emotional fulfillment, not simply a framework for parenthood.” Apparently, and the nexus is not clear, opponents argue that no-fault divorce is a predictor concerning what may happen here. “No dice,” said the majority.

Unintentional procreation supports heterosexual marriage, because marriage matters when an unexpected child is born. The court noted the fact that plenty of heterosexual couples cannot have children, to which the opponents argue that scientific advances may change that. The opinion also includes observations about gay people having opposite sex relationships, et cetera!

Same sex marriage is bad for children living in same sex households. Alas, the court cited a friend of the court brief, filed by the American Psychological Association and others, which shredded the claim.

No one knows how the same sex marriage issue gets resolved. However, if the Supreme Court uses the strict scrutiny standard, the arguments advanced by opponents of same sex marriage do not seem to be up to the difficult challenge associated with upholding state laws limiting marriage to heterosexual relationships. Stay tuned!