Abstract: The gay rights movement has seen consistent support from the US Supreme Court over the last 25 years since the ruling in Romer v. Evans (1996). Culminating in recent years with the Obergefell v. Hodges (2015) ruling, which legalized same-sex marriage nation- wide, the Court’s jurisprudence has been an odd combination of internally consistent and erratic. How have the justices reasoned through this shift in their court opinions? How has the Court’s level of scrutiny for discrimination on the basis of sexuality heightened while the level of scrutiny for discrimination on the basis of gender or race has simultaneously lowered? Furthermore, what might this mean for future court battles related to civil rights?

In the last 35 years, there has been a rapid shift in laws concerning same-sex conduct and same-sex marriage in the United States. At the time of the 1986 Bowers v. Hardwick decision, 24 states and the District of Columbia outlawed sodomy (1). Although these laws purported to ban sodomy for all couples regardless of their sexual orientation, anti-sodomy statutes were primarily a means of curtailing the sexual activity of gay men (2). Today, by contrast, gay and lesbian couples are allowed to marry throughout the US. This paper explicates this major shift in the Supreme Court’s jurisprudence, particularly through an examination of the interplay between the due process and equal protection claims made by plaintiffs, as well as through an analysis of American federalism and the conflict between state and federal laws. I argue that such a shift is a normative good, as the right to marry guaranteed in Obergefell v. Hodges (2015) grants gay couples greater hospital visitation privileges, marital status for tax purposes (such as inheritances), and ac- cess to numerous other privileges originally only allowed to heterosexual couples (3). Nonetheless, the Court’s jurisprudence over this time raises numerous questions. To what extent did the Court shift its level of scrutiny over the course of 35 years— from Bowers to Obergefell—without explicitly saying so? Is the Court’s use of the Equal Protection Clause and the Due Process Clause in Obergefell contrived? In my view, the Court’s decision in Obergefell should not have been seen as a surprise; indeed, it was a natural extension of the Court’s jurisprudence on gay rights since Romer v. Evans (1996). Nonetheless, the Court’s equal protection and due process jurisprudence is riddled with inconsistencies on these issues, and Justices Scalia, Thomas, and Roberts were right to point out the Court’s erratic invocation of different levels of scrutiny.

Background and History: From Bowers to Lawrence Although overruled by Lawrence v. Texas (2003), Justice White’s and Justice Pow- ell’s reasoning in Bowers v. Hardwick (1986) relies heavily on historical and precedential claims regarding the Due Process Clause. In 1982, a police officer entered the home of Michael Hardwick and found him having sex with another man. Hardwick’s conduct was illegal under a Georgia law prohibiting sodomy, which was defined as “any sexual act involving the sex organs of one person and the mouth or anus of another” (4). Although the district attorney decided not to prosecute, Hardwick filed a suit against Georgia’s attorney general, Michael Bowers, arguing that the anti-sodomy law was unconstitutional under the Due Process Clause of the Fourteenth Amendment. In a 5–4 decision, the Supreme Court rejected Hardwick’s claim. In the majority opinion, Justice White argued that no precedent had announced a right resembling that of the “claimed constitutional right of homosexuals to engage in acts of sodomy.” He, along with Justice Burger in a concurring opinion, indicated that proscriptions against sodomy have ancient roots in Judeo-Christian moral and ethical standards. In a more explicitly legal argument, they also suggested that anti-sodomy statutes were inherited from English common law and were thus enacted in colonial America. Their conception of fundamental rights is oddly similar to that discussed in later case Washington v. Glucksberg (1997), as it sought to consider any substantive due process claims by utilizing the framework of tradition and history as the precedent (5). In his dissent, Justice Stevens put forth a principle that would render itself crucial to future gay rights cases, arguing that “a policy of selective application must be supported by a neutral and legitimate interest—something more substantial than a habitual dislike for, or ignorance about, the disfavored group” (6). In the case of Bowers, for example, Justice Sandra Day O’Connor inquired whether there was a legitimate state interest in curtailing homosexual conduct as a means to reduce the spread of HIV/AIDS among gay men. In response, Harvard University Law Professor Laurence Tribe, on behalf of Hardwick, indicated that this was not Georgia’s stated interest. Furthermore, various amici curiae briefs submitted in the case argued instead that anti-sodomy statutes would be counterproductive in mitigating the spread of HIV/AIDS (7). With this in mind, it is clear that Justices Powell and Burger were correct: Georgia’s actual interest was seemingly the prevention of immoral conduct, and nothing more. As such, the Court has had to grapple with the question of whether a morality-based interest is sufficient to justify discrimination on the basis of sexual orientation. Although the Georgia sodomy statute was upheld in Bowers, the later Romer v. Evans (1996) case proved to be more of a success for gay rights advocates, as Justice Kennedy did not consider the morality interest to be sufficient to justify a statute against sodomy. This case arose as the state of Colorado passed a series of local ordinances that sought to ban discrimination in many sectors, including housing, employment, education, public accommodations, and health and welfare services.8 Notably, it contained a ban on discrimination on the basis of sexual orientation. This ban prompted Colorado voters to pass “Amendment 2,” which precluded future action designed to protect persons from discrimination based on their sexual orientation. In this case, the Court considered whether the state of Colorado provided a sufficient rational basis for singling out gays, lesbians, and bisexuals, which the state justified on the basis of respecting citizens’ freedom of association and, in particular, the liberty of landlords or employers who had personal or religious objections to homosexuality (9). Nonetheless, in his majority opinion, Justice Anthony Kennedy argued that such a rationale was too broad to allow for deference to the state, as it had no legitimate purpose or discrete objective (10). In contrast to Justice Kennedy, Justice Antonin Scalia argued that the morality rationale was sufficient and that the Court was undermining the majority will of Americans (11). Scalia contended that Kennedy’s notion of animus—or decision-making motivated solely by dislike for a particular group—is allowed in various arenas of life. He noted: “But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct” (12). Scalia’s equivalation of murder and cruelty to animals to homosexuality was likely reprehensible then, as is it now. However, it also points to a crucial misconception in this case: that landlords or other groups of people may be discriminating against queer people on the basis of their conduct. In the Court’s hearing of Romer, Scalia argued that if one criminalizes homosexual conduct [Bowers], then it follows that one can discriminate against homosexuals as well (13). What Scalia failed to understand, however, and what lead counsel and future Colorado Supreme Court Justice Jean Dubofsky pointed out on behalf of respondents, is that Romer was about both conduct and sexual orientation. A person may be perceived as gay (when they are not) by a landlord, for example, and then discriminated against. In this regard, Scalia’s analogy does not hold, as murder, polygamy, and cruelty to animals are all forms of conduct, while homophobia can be directed at people regardless of whether or not they actually engage in homosexual conduct. In this regard, Scalia’s conflation of conduct and sexual orientation renders his analogy regarding the possibility for morality-based animus less persuasive. Scalia’s second argument was that the Court is an insulated institution of justices that have graduated from elite law schools, and so it had no business pushing its morality onto the good people of Colorado in Romer (14). While Scalia’s notion may have been theoretically viable, he failed to consider how his conception operates in a greater historical context. For example, as Laurence Tribe, counsel to Michael Hardwick, argued in the Bowers hearing, the majority of people in Virginia did not think that interracial liaisons were moral at the time of Loving v. Virginia (1967) (15). If the Court had relied on Scalia’s majoritarian claim regarding gay rights, volmany generally agreed upon cases, such as Loving, would have been decided differently. Following Romer, the Court made several decisions in favor of the gay community, such as in Lawrence v. Texas (2003). Lawrence mirrored the Bowers case in many regards, as it involved a police intrusion into the home of two men, John Lawrence Jr. and Tyron Garner, who were purportedly having sex (16). It differed in two crucial dimensions. For one, the Texas statute in question was specifically directed at prohibiting homosexual sodomy, while the Georgia law in Bowers targeted sodomy in general. The second difference was that Lawrence’s counsel, Paul Smith, argued that the Texas statute violated both the Equal Protection and Due Process Clauses of the Constitution, not just the Due Process Clause (17). Justice Kennedy argued in the majority opinion of the Court that the Texas statute was a violation of substantive due process, and Justice Sandra Day O’Connor claimed that it also violated the Equal Protection Clause so its potential violation of the Due Process Clause need not be decided (18). Kennedy relied on two precedents in his jurisprudence in Lawrence: Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) for substantive due process and Romer v. Evans (1996) for equal protection (19). In Casey, the Court introduced a new substantive due process claim: dignity and respect for autonomy (20). As mentioned in regard to Romer, the Court started to level up its scrutiny for discrimination on the basis of sexual orientation; Colorado gave a rationale regarding freedom of association, but the majority found that this was not a sufficient basis for Amendment 2. In Lawrence, Kennedy quotes Justice Stevens’s dissent in Bowers, in which he claimed that “individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons” (21). Following this logic, Kennedy disagreed with the Bowers decision, and it was overruled by Lawrence. Analysis of Justice O’Connor’s concurrence in Lawrence indicates the potential legal consequences that could have arisen if Justice Kennedy had not drawn on precedents from both Casey and Romer. O’Connor argued that the fact that the Texas statute was only aimed at same-sex sodomy resulted in a violation of the Equal Protection Clause. Unlike Kennedy, O’Connor did not rely on Casey but rather the liberal precedent of Romer (22). In her rational basis analysis, she asserted that “moral disapproval of [homosexuals], like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause” (23). O’Connor’s decision in Lawrence was therefore much narrower and more minimalist than Kennedy’s, as she implied that a sodomy statute would still be constitutional while a same-sex sodomy statute would not. If O’Connor’s minimalist stance had been adopted by the rest of the Court, however, it seems that very little change would have occurred. In The Most Activist Court in Supreme Court History, Thomas M. Kerk notes that O’Connor’s reasoning would have only rendered four states’ same-sex anti-sodomy statutes unconstitutional (24). States would have still been able to adopt anti-sodomy statutes in general, and in practice, these statutes would likely only have been applied in same-sex cases. Consequently, Kennedy’s use of legal reasoning from both Casey (substantive due process) and Romer (equal protection) was imperative to establishing a precedent in Lawrence that resulted in legitimate change for the privacy and dignity of same-sex couples (25).

The Shift After Lawrence: The Legal Fight for Same-Sex Marriage Following Lawrence, change was certainly on the horizon for same-sex couples in the US, particularly with regard to marriage. Evan Gerstmann, Professor of Political Science at Loyola Marymount University, argues in Same-Sex Marriage and the Constitution that Lawrence paved the way for lower courts to overturn bans on same- sex marriage (26). In November 2003, the Supreme Judicial Court of Massachusetts ruled in Goodridge v. Department of Public Health that the state’s ban on same-sex marriage lacked a rational basis. The state had provided justifications for the ban, including “providing a ‘favorable setting for procreation,’” ensuring an optimal setting for child-rearing, and preserving state resources. Still, the Court rejected all three claims, stating that “...the [Massachusetts same-sex] marriage ban does not meet the rational basis test for either due process or equal protection.” As a result, Massachusetts became the first state to legalize same-sex marriage (27). As more states began to allow same-sex marriage and the topic penetrated the national conversation, federal challenges concerning the definition of marriage reached the Supreme Court, such as in the 2013 case of United States v. Windsor. This case challenged the legality of the Defense of Marriage Act (DOMA), which Congress had enacted in 1996 (28). In Windsor, Thea Spyer and Edith Windsor had been in a committed relationship since 1963. In the 2000s, they were living in New York, which recognized same-sex marriage ordained elsewhere but would not legalize same-sex marriage itself for a few more years (29). As Spyer’s health deteriorated, the couple married in Ontario, Canada and then returned to New York. Upon her death, Spyer left Windsor all that she had. Although the couple had been married, Windsor was unable to claim a marital estate tax exemption due to Section 3 of the Defense of Marriage Act, which defined marriage as the “legal union between one man and one woman” (30). As a result, Windsor was required to pay $363,053 in estate taxes. For a heterosexual, federally sanctioned marriage, the entire estate tax would have been waived. When Windsor sought a refund, the Internal Revenue Service refused and claimed that Windsor was not a surviving spouse (31). Although Windsor had to first prove she had standing in the case, the central question in Windsor was whether or not the Defense of Marriage Act violated her right to equal protection under the Fifth Amendment (32). Indeed, the Court found that the federal government failed to provide a sufficient rationale for DOMA, but did not explicitly point to the level of scrutiny that it used to come to this conclusion. During the hearing of Windsor, Paul D. Clement, who represented the House of Representatives, implored the justices to adhere to the rational basis test. He also provided the apparent justification of the federal government for the act: uniformity of the definition of marriage across states. DOMA had been passed in 1996, just as same-sex marriage was starting to be considered at the state level. In Clement’s view, Congress at the time became concerned that same-sex couples would travel to other states to be legally wed and then return to a state in which their marriage was not valid and insist that it remained so (33). Nonetheless, reading from a 1996 House Report, Justice Kagan pointed out another potential legislative rationale for DOMA, which was that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality” (34). Clement then argued that the report’s revelation of the intentions of some legislators did not necessarily lead to a failure of the rational basis test (35). Moreover, in his dissent in Windsor, Justice Scalia emphasized the rationale of uniformity, as well as his decades-old notion (dating back to Romer) that the Constitution does not forbid the government to enforce traditional moral and sexual norms (36). Traditionally, sexual orientation has been relegated to the sphere of rational basis tests— immediate scrutiny often includes sex or gender and heightened scrutiny is often in regard to race (37). The level of scrutiny utilized is crucial to the level of protection given to a select class. The rational basis test, or rational review, is generally used in cases where no fundamental rights are at stake. In Windsor, Scalia also slighted Kennedy and the rest of those in the majority for their unwillingness to announce that they were using anything more than a rational basis test in their conclusion—a critical shift in the jurisprudence of gay rights cases. Scalia berated the majority members for their leveling up of protection for sexual orientation, writing that: “The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality” (38). While the justices in the majority did not indicate that they were utilizing heightened scrutiny, it is notable that Justice Breyer pointed out in the Windsor hearing that for “rational basis-plus,” the rationale of uniformity might not be sufficient (39). Although flippant, this points to the possibility that the liberal justices were consciously raising the level of scrutiny for discrimination on the basis of sexual orientation. Scalia’s critique also points to a more serious concern for proponents of civil rights: erratic levels of scrutiny are not only the case for discrimination on the basis of sexual orientation, but now also for discrimination on the basis of race. Berkeley Law Professor Russell Robinson argued that the Court has decidedly leveled up some types of scrutiny, particularly for discrimination on the basis of sexual orientation, while it has lowered it for issues of race (40). Arkansas Law Professor Susannah Pollvogt took this a step further, arguing that Kennedy’s analysis regarding the discrimination ordinance in Romer (1996) is incompatible with his analysis in Schuette v. Coalition to Defend Affirmative Action (2014). In Schuette, Michigan voters had enacted a similar ordinance to that discussed in Romer which precluded future protections based on race, and Kennedy found that such an ordinance was constitutional (41). In this regard, it does seem that Scalia was correct: the justices that supported gay rights issues over the last 25 years had seemingly changed their level of scrutiny without announcing it. Although this may seem like a win to gay rights advocates, unconscious or unannounced changes regarding the Court’s level of scrutiny can have profound effects, particularly as the Court levels down its protections for race and gender.

Windsor and Obergefell: A Resolution... Beyond the rational basis test, the Court was concerned about whether DOMA intruded on the principle of federalism and if the federal government could im- pose one uniform idea of marriage on the states (42). Justice Kennedy’s opinion in Windsor suggests that the decision in Obergefell v. Hodges may not resolve the concern with federalism. He indicates that in Windsor, federalism was of grave concern to the majority and that a future case that would establish same-sex marriage at a federal level could meet serious challenges from the Court. He wrote that state governments are delegated authority on the matter of marriage and divorce, quoting Haddock v. Haddock (1906) (43). In this regard, he asserted that “DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage” (44). In a 2014 article entitled “Federalism as a Way Station, Windsor as Exemplar of Doctrine in Motion,” Duke University Law Professor Neil S. Siegel acknowledged that the Court concocted their decision in Windsor to a certain degree (45). It is clear that imbued in the majority opinion was concern for federalism, equal protection, and substantive due process, but it is not as easy to discern where each concern lies or originates. In particular, Siegel noted the difference between Scalia and Roberts’ dissents. Roberts, for example, read the majority opinion as being concerned with federalism, although he himself thought that Windsor lacked standing (46). Scalia, by contrast, thought that the majority was more concerned with the malice directed at same-sex couples by the federal government, and, consequently, its intention to impose inequalities and restrictions on same-sex couples (47). Siegel argues that the Court resisted making a definitive judgment on either side and instead used the concept of federalism to push the country towards marriage equality. Thus, the rhetoric of federalism employed by Kennedy in the majority opinion, as well as the majority’s choice not to announce the level of scrutiny applied, may be used by the Court as a way station to a future resolution. Popularized by constitutional law scholar Alexander Bickel, this approach would seek to invite, as opposed to resolve, national conversation (48). Siegel’s interpretation may suggest that federalism was less of a concern to Kennedy and rather a means of rhetoric to push the Court in one direction. Obergefell v. Hodges itself also provides clearer guidance as to why the federalism notion in Windsor can be disregarded. In Obergefell, Justice Kennedy rooted his decision in the ever-changing due process jurisprudence, citing marriage as a fundamental right laid out in Griswold v. Connecticut (1965) and Loving v. Virginia (1967) (49). Nonetheless, the Court hesitated to enforce a federal definition of marriage onto the states. At the onset of the hearing, Justice Ruth Bader Ginsburg asked Mary Bonauto, counsel for Obergefell, how to square the Windsor case with Obergefell, a case in which “the Court stressed the government’s historic deference to the States when it comes to matters of domestic relations” (50). Although Bonauto agreed with Justice Ginsburg’s characterization of Windsor, she suggested that Obergefell differed in an important way: the Court’s failure to affirm the right to same-sex marriage would result in a violation of the Fourteenth Amendment. Conversely, in Windsor, the Court struck down a definition of marriage for the states because it prevented equal protection. The two cases are thus an inversion of one another in this regard, allowing Obergefell to overcome the federalism concern of Windsor. On a constitutional level, however, Obergefell intertwined the notions of the Equal Protection and Due Process Clauses in a manner akin to that of Lawrence. Indeed, Obergefell relied heavily on precedents from Lawrence, Romer, and Casey which were imperative for differentiating Justice Kennedy’s majority opinion from Justice O’Connor’s concurrence in Lawrence. A similar process seemingly occurred with Obergefell. NYU Law Professor of Law Kenji Yoshino argues that while the Court relied on both the Equal Protection and Due Process Clauses of the Fourteenth Amendment, it put greater faith in fundamental rights claims (51). In Loving, the equality and liberty claims were made in parallel to one another (52). In Obergefell, Justice Kennedy described them as interrelated and unable to be captured fully without one another. But just as O’Connor’s equal protection concurrence in Lawrence would have only resulted in the striking down of same-sex sodomy statutes, the enforcement of Obergefell may have been weaker had Kennedy not invoked the substantive due process claim in his decision. Theoretically, the Court’s use of both clauses should have prompted states to level up their protection for same-sex couples, as opposed to exiting the marriage licensing business altogether. As Yoshino notes, this was a concern in South Africa’s 2005 decision to legalize same-sex marriage, in which the Constitutional Court of South Africa warned against their “levelling down” of marriage licensing in the wake of the decision (53). Nonetheless, although the US Supreme Court attempted to use both the Equal Protection and Due Process Clauses in Obergefell to mitigate such practices, the enforcement of Obergefell was not necessarily easy. One prominent example concerned Kim Davis, a county clerk in Kentucky, who refused to grant a marriage certificate to a same-sex couple on the grounds of freedom of religion (54). Yoshino asserts that actors such as Kim Davis “violate a due process ruling in a way that would not violate an equal protection ruling” (55). Such a sentiment mirrors the potential outcome of O’Connor’s opinion in Lawrence—had her opinion been carried out, the decision would have been toothless. Indeed, the entire jurisprudence of the Court in the area of gay rights seems to have some sort of internal consistency. This raises the question: following Romer and Lawrence, was Obergefell predictable? Ron Kahn, James Monroe Professor of Politics and Law at Oberlin College, argues that Obergefell could have been predicted by commentators that recognized the Court’s combination of formalist and realist conceptions of gay rights (56). At first glance, the Rehnquist Court and Roberts Court jurisprudence on issues of sexual orientation is a bit surprising, as Kahn remarks: “... the Supreme Court has reaffirmed and expanded implied fundamental rights and equal protection under the law for gay men and lesbians during a period of political dominance by social conservatives, evangelical Christians, and other groups who view the protection of their definition of family values as a central mission of government” (57). Integral to Kahn’s conception of the Supreme Court over these decades is whether or not justices understand the bidirectionality between legal principles (a more formalistic conception) and the “lived lives of individuals” (a more realistic conception) (58). In Windsor, for example, Kahn asserts that Justice Kennedy engaged in a realist form of decision-making as he discussed the burdens that DOMA placed on same-sex couples with regard to their married and family lives.59 Kahn traces this bidirectionality from Lawrence to Obergefell, arguing that he was able to anticipate Obergefell insofar as the case was internally consistent with its precedents, and it relied on the bidirectionality of realism and formalism (60).

Final Remarks It seems less likely that Kahn could have anticipated the later developments of the Court’s jurisprudence on gay rights issues, particularly with the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights (2018). In this case, Jack Philips, a Colorado baker and owner of Masterpiece Cakeshop, refused to create a wedding cake for a gay couple (61). Notably, this interaction occurred in 2012 before the Obergefell decision. Relying on the Free Exercise and Free Speech Clauses, the Court ruled in a 7–2 decision that the Colorado Civil Rights Commission’s decision in favor of the gay couple violated the First Amendment. Kahn’s framework does not seem to suit this case; indeed, if the Court had an understanding of the lived lives of gay people, and the discrimination that they face, it may have provided greater weight to the commission. Instead, the Court found that the Commission had “clear and impermissible hostility” toward Philips (62). In his majority opinion, Chief Justice Roberts asserted that the commission’s hostility revealed that Philips was not afforded the neutrality mandated by the Free Exercise Clause. Cases such as Masterpiece Cakeshop certainly cast doubt on the progress of gay rights advocacy. Regardless, gay rights advocates have achieved a series of victories over the last 35 years, from Romer in regard to discrimination ordinances, to Lawrence in regard to anti-sodomy statutes, to Windsor and Obergefell as the Court redefined marriage to include same-sex couples. Backlash, however, is still probable. Indeed, the Massachusetts Supreme Court’s decision in Goodrich in November of 2003 was likened to “an early Christmas gift to Republicans” prior to Massachusetts Senator John Kerry’s bid for the presidency in 2004 (63). Although Obergefell should have been anticipated, it certainly highlights the Court’s continued inability to state its level of scrutiny in regard to discrimination on the basis of sexual orientation, which lends itself to conservative critiques. Many commentators have also found it problematic that the Court has leveled up its protection for sexual orientation while it it has simultaneously leveled it down for race. Nonetheless, it is promising that the Court has provided greater civil rights for the gay community. The Court’s internal consistency should be kept in mind for proponents of gay equality—even if its jurisprudence has been correct. The future of civil rights litigation hinges on it.

Endnotes

1 Bowers v. Hardwick, 478 U.S. 186. (U.S. Supreme Court 1986). See Justice White’s majority opinion. 2 Ibid. See Justice Stevens’ dissent.

3 Obergefell v. Hodges, 576 U.S. 644 (U.S. Supreme Court 2015). See Justice Kennedy’s opinion, in which he lists the aspects of life in which rights are conferred on married couples: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision-making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. 4 Bowers v. Hardwick, 478 U.S. 186. (U.S. Supreme Court 1986).

5 Washington v. Glucksberg, 521 U.S. 702. (U.S. Supreme Court 1997).

6 Bowers v. Hardwick, 478 U.S. 186. (U.S. Supreme Court 1986). See Justice Stevens’ dissent. 7 Ibid. See oral argument. This line of questioning starts at 51:50. O’Connor states “Perhaps the state [of Georgia] can say its desire to deter the spread of a communicable disease or something of that sort,” to which Mr. Tribe replies. 8 Romer v. Evans, 517 U.S. 620. (U.S. Supreme Court 1996). See Justice Kennedy’s opinion.

9 Ibid.

10 Ibid. 11 In Romer, Scalia argued that a ‘politically-powerful minority’ is acting against the majority will of Colorado: “the majority of citizens [is attempting] to preserve its view of sexual morality state wide against the efforts of a geographically concentrated and politically powerful minority to undermine it.” 12 Romer v. Evans, 517 U.S. 620. (U.S. Supreme Court 1996). Opinion Announcement - May 20, 1996. 13 Ibid. See oral argument: 52:57-53:36. Scalia asks: “It seems to me the legitimacy of the one follows from the legitimacy of the other. If you can criminalize it, surely you can take that latter step, can’t you?... Doesn’t... if the one is constitutional, must not the other one be?”

14 Ibid.

15 Bowers v. Hardwick, 478 U.S. 186. (U.S. Supreme Court 1986). See oral argument: 35:41. Tribe states: “But, as this Court recognized in Loving against Virginia, where also a majority of the people of Virginia believed that interracial liaisons were inherently immoral and where for a long time a lot of people had believed that, this Court did not think that the Constitution’s mission was to freeze that historical vision into place.” 16 Dahlia Lithwick, “Extreme Makeover: The Story behind the Story of Lawrence v. Texas,” The New Yorker, Mar. 4, 2012, https://www.newyorker.com/magazine/2012/03/12/extreme-makeover-dahlia-lithwick. 17 Lawrence v. Texas, 539 U.S. 558 (U.S. Supreme Court 2003). See oral argument: 1:48-2:10. 18 Ibid. See Justice O’Connor concurrence.

19 Ibid. See Kennedy opinion. 20 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (U.S. Supreme Court 1992).

21 Lawrence v. Texas, 539 U.S. 558 (U.S. Supreme Court 2003). See Kennedy opinion.

22 Thomas M. Kerk, The Most Activist Court in Supreme Court History: The Road to Modern

Judicial Conservatism (Chicago: The University of Chicago Press, 2004), 219. 23 Lawrence v. Texas, 539 U.S. 558 (U.S. Supreme Court 2003). See Justice O’Connor concurrence. 24 Kerk, The Most Activist Court in Supreme Court History, 219. 25 Kenji Yoshino, “A New Birth of Freedom?: Obergefell v. Hodges,” Harvard Law Review 129, no. 147 (2015): 173. 26 Evan Gerstmann, Same-Sex Marriage and the Constitution: We All Deserve The Freedom To Marry (Cambridge: Cambridge University Press, 2004), xii.

27 Ibid, xiii. 28 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Justice Kennedy’s majority opinion. 29 N. S. Siegel, “Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion,” Journal of Legal Analysis 6, no. 1 (2014): 89, https://doi.org/10.1093/jla/lau002. 30 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Justice Kennedy’s majority opinion. 31 Ibid. 32 In Hollingsworth v. Perry, 570 U.S. 693 (U.S. Supreme Court 2013), the petitioners were denied standing. This was certainly a concern for Windsor; Roberts’ opinion indicated that he would have denied standing here as well.

33 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). Oral argument: 1:06:05. Clement gives the example of Hawaii here, which had considered legalizing same- sex marriage around the time that DOMA was enacted. 34 Ibid. Oral argument: 1:14:16. 35 Ibid. Oral argument: 1:14:40. Clement’s rebuttal was that the improper motive of a few legislators does not mean that DOMA would necessarily fail the rational-basis test: “This Court, even when it’s to find more heightened scrutiny, the O’Brien case we cite, it suggests, Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive.” 36 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Justice Scalia’s dissent. 37 Legal Information Institute at Cornell Law. “Strict Scrutiny. https://www.law.cornell. edu/wex/strict_scrutiny. 38 Ibid. See Scalia’s dissent. 39 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See oral argument: 1:17:41.

40 Russell K. Robinson, “Unequal Protection,” Stanford Law Review 68, no. 1 (2016): 151. 41 Susannah William Pollvogt, “Thought Experiment: What If Justice Kennedy Had Approached Romer v. Evans the Way He Approached Schuette v. BAMN?,” SSRN Electronic Journal, 2014, https://doi.org/10.2139/ssrn.2436616. 42 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See oral argument: 1:16:09. Kennedy stated: “The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.” 43 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Justice Kennedy’s majority opinion.

44 Ibid.

45 Siegel, “Federalism as a Way Station,” 87.

46 United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). See Roberts’ dissent. 47 Siegel, “Federalism as a Way Station,” 90. 48 Ibid, 87. 49 Obergefell v. Hodges, 576 U.S. 644 (U.S. Supreme Court 2015). See Justice Kennedy’s majority opinion. 50 Ibid. See oral argument. Within seconds (0:52), Justice Ginsburg asked this question: “What do you do with the Windsor case where the court stressed the Federal government’s historic deference to States when it comes to matters of domestic relations?”

51 Yoshino, “A New Birth of Freedom?: Obergefell v. Hodges,” 148.

52 Ibid, 172.

53 Minister of Home Affairs v. Fourie, No. ZACC 19 (Constitutional Court of South

Africa 2006). The Honorable Justice Albie Sachs of the Constitutional Court of South Africa: “Levelling down so as to deny access to civil marriage to all would not promote the achievement of the enjoyment of equality. Such parity of exclusion rather than of inclusion would distribute resentment evenly, instead of dissipating it equally for all. The law concerned with family formation and marriage requires equal celebration, not equal marginalisation; it calls for equality of the vineyard and not equality of the graveyard.” 54 Alan Blinder and Tamar Lewin, “Clerk in Kentucky Chooses Jail Over Deal on Same- Sex Marriage,” New York Times, Sept. 3, 2015, https://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html. 55 Yoshino, “A New Birth of Freedom?: Obergefell v. Hodges,” 173.

56 Ronald Kahn, “The Right to Same-Sex Marriage: Formalism, Realism, and Social Change in Lawrence (2003), Windsor (2013), & Obergefell (2015),” Maryland Law Review 75, no. 1 (2015): 271–311. 57 Ibid, 272. 58 Ibid, 275. 59 Ibid, 292. 60 Ibid, 302. “...specifically, Obergefell cannot be explained only on the basis of either formalist or realist elements.” 61 Noah Feldman and Kathleen M. Sullivan, Constitutional Law, Twentieth edition, University Casebook Series (St. Paul: Foundation Press, 2019). Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___, 138 (2018).

62 Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (U.S. Supreme Court 2018). 63 Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (New York: Oxford University Press, Incorporated, 2012), 183. https://ebookcentral.proquest.com/lib/swarthmore/detail.action?pqorigsite=primo&docID=5746877#.

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https://doi.org/10.2139/ssrn.2436616. Robinson, Russell K. “Unequal Protection.” Stanford Law Review 68, no. 1 (2016): 151–233. Romer v. Evans, 517 U.S. 620. (U.S. Supreme Court 1996). Siegel, N. S. “Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion.” Journal of

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https://www.law.cornell.edu/wex/strict_scrutiny. United States v. Windsor, 570 U.S. 744 (U.S. Supreme Court 2013). Washington v. Glucksberg, 521 U.S. 702. (U.S. Supreme Court 1997). Yoshino, Kenji. “A New Birth of Freedom?: Obergefell v. Hodges.” Harvard Law Review 129, no. 147 (2015): 147-179.