What is the Same-Sex Marriage Court Battle About?
Posted at 1 p.m. on March 5
Cass Sunstein lays out the basic dispute at the heart of the upcoming Supreme Court battle over same-sex marriage rights.
“Whenever the government treats some people differently from others, it may be acting unfairly… The Supreme Court has responded to this problem by ruling that under the Equal Protection Clause of the 14th Amendment to the Constitution, the government can do whatever it likes so long as its action is ‘rational.’ This is not meant to be a demanding test.”
“In a few areas, however… the government is subject to ‘heightened scrutiny,’ in the sense that the courts will require a convincing demonstration that the discrimination is genuinely necessary to promote an important social goal. Under heightened scrutiny, racial discrimination is usually struck down… the court was eventually convinced that discrimination on the basis of sex should similarly be subject to heightened scrutiny.”
“Until very recently, it would have been adventurous, and possibly even absurd, for anyone to suggest that the court should apply heightened scrutiny to discrimination on the basis of sexual orientation. In these circumstances, it is historic that the Department of Justice has so argued, especially in the context of marriage.”