In May of 2009 two same-sex couples filed suit to stop the implementation of California's Prop 8, which defined marriage as between one man and a woman and effectively made marriage between those of the same-sex illegal. While this case has been played out in the courts for three years, the Supreme court of the United States has recently heard oral arguments regarding this case and will soon make a decision as to the constitutionality of California's Prop 8 law. (Mears) But the issue of same-sex marriage is currently at stake in a number of states and the decision made by the court could have an effect that reaches far beyond the borders of California. Many different states have differing versions of laws which allow for the legal recognition of same-sex couples, ranging from civil unions to outright recognition of marriage. While at the same time, other states have laws restricting the legal protections of same-sex couples, especially when it comes to marriage. Proponents of same-sex marriage claim that laws restricting the legal definition of the term "marriage" to only one man and one woman violate the constitutional rights of same-sex couples, especially the 14th amendment's equal protection clause as well as the due process and privileges and immunities clauses.
In the scenario titled "issue one" where a state makes it a crime to marry a person of the same sex, whether in a legal ceremony, sectarian ceremony, or simply a private one which does not involve the state or any religious institution, and the law also refuses to recognize any type of civil unions, there are a number of constitutional issues involved. Firstly, opponents of such laws would point to the 14th amendment and its equal protection, due process, and privileges and immunities clauses as the basis for their argument that the laws are unconstitutional. They may even point to the 1967 case of Loving v. Virginia in which the Supreme Court of the United States decided that laws restricting the nature of marriage, based upon the races of the two people being married, were unconstitutional. (Loving v. Virginia) Using this case as a starting point, those supporting same-sex marriage claim that the right to marry is a fundamental right guaranteed to any American citizen. And since the state cannot make a law restricting marriage based on the race of those involved, then the same protection must be extended to couples of the same-sex. In effect, sexual orientation should be viewed as a suspect classification in terms of legal protections offered.
When discussing the Supreme Court's potential review of a case where a state basically outlaws same-sex marriage and refuses to provide any alternative, as in issue one, one must take into account the differing levels of judicial review. The lowest form of review, called rational basis review, is important because allows for the Supreme Court of the United States to apply the test to laws created by state governments in deciding whether or not those laws are constitutional. In this case the rational basis review would not generally apply in a case such as this because those making the case for same-sex marriage are claiming that, not only is a suspect classification involved, but also the fundamental right of marriage. This level of judicial review is not used when such classifications or fundamental rights are involved, and a more strict form of judicial review is needed.
In such cases where a more strict form of judicial review is necessary, the court has the choice of using either an intermediary form, generally called "rational basis review with bite" or the strictest form of review called "strict scrutiny." The rational basis review with bite generally necessitates the government to come up with a legitimate interest in maintaining the law, or sometimes the court itself will find this interest. This level of review is also used when the case involves a group which is deemed to be "quasi-suspect" and the interest is strong. However, in this case the group involved, same-sex couples, should not be considered to be a "quasi-suspect" group but a fully "suspect" group; meaning they should be afforded the full protections of a group…