Obergefell Reflects Justice Kennedy’s Evolved Views On Equal Protection And Opens The Door To Further Protections For LGBT People

By: Richard L. Levine and Robert T. Vlasis (Weil, Gotshal & Manges LLP)

The opinion of the Court that Justice Anthony M. Kennedy penned in Obergefell v. Hodgesreflects the Justice’s evolving views on gay, lesbian, and bisexual people and suggests that they may be found to be a suspect class under the Equal Protection Clause of the 14th Amendment, which would pave the way for future rulings extending protections for gay people.[1] Throughout the Court’s opinion in Obergefell, Justice Kennedy writes about gay rights as “equal” rights, even in the portions of the opinion focused on the fundamental right to marriage under the Due Process Clause of the 14th Amendment. For instance, in framing the discussion about why marriage is a fundamental right, including for gay people, Justice Kennedy writes that “[t]he four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.” Slip Op. at 12.[2] And regarding the benefits that marriage conveys, Justice Kennedy explains that “[t]here is no difference between same- and opposite-sex couples” and that “exclusion from that status [of marriage] has the effect of teaching that gays and lesbians are unequal in important respects.” Id. at 17. Finally, Justice Kennedy conveys the sentiment that “same-sex couples seek in marriage the same legal treatment as opposite-sex couples.” Id. at 19.

Moreover, in explaining the interconnectedness of the Due Process and Equal Protection Clauses, Justice Kennedy acknowledges the right of gay people to the “guarantee of the equal protection of the laws” under the Equal Protection Clause, at least with regard to marriage. Id. Justice Kennedy’s—and indeed, the Court’s—general acknowledgement of the guarantee of equal protection of the laws for gay people in this context represents a significant step forward for the constitutional rights of gay people and is a departure from Justice Kennedy’s more measured analysis in earlier gay-rights cases such as Lawrence v. Texasand Romer v. Evans. In Lawrence, Justice Kennedy sidestepped altogether the issue of whether gay people are entitled to equal protection under the law, opting instead to decide the issue under the right to privacy afforded by the Due Process Clause. See Lawrence v. Texas, 539 U.S. 558, 574-75 (2003). He even seemed to disclaim therein any implication that gay people are entitled to any special legal status, stating that Lawrence does “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id. at 578.

Similarly, in Romer, Justice Kennedy wrote that “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. . . . [A] law must bear a rational relationship to a legitimate governmental purpose . . . and Amendment 2 does not.” Romer v. Evans, 517 U.S. 620, 635(1996). Thus, by deciding Romer under rational relationship review, Justice Kennedy did not treat gay people as a suspect class, which would have triggered heightened review under intermediate or strict scrutiny. Justice Kennedy likewise did not expressly afford gay people heightened review in the majority opinion he wrote in United States v. Windsor, 570 U.S. ___ (2013).

Although Justice Kennedy and the Court still have not expressly ruled that gay people are a suspect class such that a law that implicates a classification of gay people is subject to heightened review, Justice Kennedy’s apparent evolution on the question of equal rights for gay people suggests this result. This is especially true given that Justice Kennedy twice refers in Obergefell to sexual orientation as “immutable,” a criterion the Court may consider in finding a suspect classification. See Slip Op. at 4, 8; Frontiero v. Richardson, 411 U.S. 677, 686–87 (1973) (applying heightened review to laws targeting women: “[S]ex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.”). Justice Kennedy likewise mentions the “long history of disapproval” of gay relationships, potentially implicating a second criterion for a suspect classification. See Slip Op. at 22; Frontiero, 411 U.S. at 684 (“There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination.”).

In any event, with the Court’s opinion in Obergefell that access to marriage is both a fundamental right for gay people protected by the Due Process Clause and a right that cannot be denied under the Equal Protection Clause, further challenges to discriminatory laws targeting gay people should be successful, even in cases that do not involve fundamental rights but are challenged as a denial of equal rights under the Equal Protection Clause.

[1] We refer to gay, lesbian, and bisexual people as “gay” for convenience, and also include transgender people to the extent they are impacted by the rulings discussed herein.

[2] All emphasis added.