Late last week, we were thrilled to see the U.S. Supreme Court following in Massachusetts’ footsteps, holding in Obergefell v. Hodges that the Fourteenth Amendment requires states to license marriages between two people of the same sex and to recognize same sex marriages lawfully performed in other states. The BBA has long been a supporter of marriage equality. We submitted an amicus brief along with the Massachusetts LGBTQ Bar Association in Goodridge v. Department of Public Health, the 2002 case that made Massachusetts the first state to legalize same-sex marriage. Former SJC Chief Justice Margaret Marshall’s majority opinion contains many eloquent and powerful arguments that have been repeated around the country and most recently by the Supreme Court. The BBA has since filed or signed onto a number of additional amicus briefs in support of marriage equality in the following cases:
- 2005 – Sandra and Roberta Cote-Whiteacre v. Department of Public Health: supports the plaintiffs’ claims that the Department of Public Health’s prevention of city and town clerks from issuing marriage licenses to same-sex couples residing in other states violates provisions of the U.S. and Massachusetts Constitutions.
- 2011 – Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, and Nancy Gill v. Office of Personnel Management: makes a constitutional challenge to Section 3 of the federal Defense of Marriage Act (DOMA), arguing that classifications based on sexual orientation must be subjected to heightened scrutiny.
- 2013 – U.S. v. Windsor and Hollingsworth v. Perry: both arguing again for the court to apply heightened scrutiny to classifications based on sexual orientation.
However, even as we mark last week’s great step forward, we are reminded that society has a long way to go before we achieve total equality. Even the Obergefell decision, which is certainly a milestone for marriage equality, doesn’t go so far as to clarify what level of scrutiny courts should apply to sexual orientation classifications. The Supreme Court has historically applied varying levels of scrutiny to Constitutional law questions, including due process and equal protection cases.
- The most basic level, rational basis, requires only that the government’s actions be rationally related to a legitimate governmental interest.
- The next level, intermediate scrutiny, requires that the government’s actions be related to an important government interest, and is most well-known for its use in sex-based classifications.
- Finally, strict scrutiny, which is applied when a fundamental right is at issue or when the government action applies to a suspect classification, requires a compelling governmental interest, that the law or policy be narrowly tailored to achieve that goal, and that it be the least restrictive means. Strict scrutiny is used for classifications such as race or national origin.
In our 2011 and 2013 amicus briefs cited above, we argued that strict scrutiny should apply to classifications based on sexual orientation. While the Obergefell decision hints that strict scrutiny should apply, it does not actually go so far as to apply the test.
Massachusetts has long been a leader in legislating equality. The Legislature enacted a broad anti-discrimination law in 1989, prohibiting sexual orientation discrimination in the areas of employment, housing, public accommodations, credit and services (this site has a very useful and concise breakdown of the law and its application). Remarkably, more than 25 years later, residents in many other states still lack these protections.
Yet, even here in Massachusetts, some would argue there is plenty more we can do to assure fairness and equality. As recently reported, Massachusetts still doesn’t treat same-sex couples the same as married couples. For example, same-sex couples who are unmarried may have a harder time than their opposite-sex counterparts in getting legal recognition of joint parenthood. They may also face legal discrimination from private insurance companies or be unable to enjoy the same family leave privileges as opposite-sex couples. In addition, while the Massachusetts Legislature extended its anti-discrimination laws in 2012 by passing An Act Relative to Gender Identity, which prohibits discrimination based on gender identity, public accommodations were stripped from the bill’s coverage before it was enacted; we are now seeing a renewed push this session to expand the law’s protections.
In sum, we are proud of Massachusetts, for leading the way on marriage and we are excited that the U.S. Supreme Court took a major step forward in recognizing marriage equality as a right required under the Fourteenth Amendment. However, we recognize that there is still a long way to go. In the judiciary, we hope to see sexual orientation benefit from the heightened scrutiny standard it deserves. In the Legislature, both nationally and in our own state, we look forward to laws that will help assure equality for all, regardless of their sexual orientation or gender identity. Obergefell represents a great moment in history, but we hope it is only the beginning of a new era of equality.
– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
