Many people believe that the momentum to legalize same-sex marriage in all states is now unstoppable—not because all states would do it on their own but because the federal courts seem determined to impose it by judicial decision. A series of district-court judges, claiming to follow the Supreme Court’s decision striking down federal marriage law in Windsor (2013), has recently overturned state amendments or laws in Utah, Idaho, Colorado, Pennsylvania, and nine other states which defined marriage as a union of one man and one woman.
The average person is naturally intimidated by the judges and feels pressured to agree. If only the public knew how these judicial decisions were made. The district-court rulings involve the “equal protection” and “due process” clauses of the Fourteenth Amendment of the US Constitution as they are applied to state marriage laws. In applying them, the judges have made a major point of discarding the established standard of review for discrimination cases arising from sexual orientation, namely, “the rational basis test” which is the most deferential to legislatures and amending procedures. This standard could have been applied, and it should have been sufficient to uphold traditional marriage laws in the states. Instead, the judges have pushed for stricter standards of review based on a fundamental right to marry without restrictions, while also arguing that traditional marriage laws are without any rational basis. Let me try to explain how the judges got here, and suggest why the rational basis test should be restored, along with the deference it brings to democratic laws and to marriage itself.
Over the past seventy-six years (since Carolene Products, 1938), the Supreme Court has developed an elaborate framework for decisions about “discrimination”—which, in legal terms, means classifying people into different groups for the purpose of treating them differently. The reason for the framework is that laws routinely classify people and give rights and advantages to some groups but not to others; and sometimes those classifications are just and reasonable, sometimes they are not. For example, racial segregation is unjust but racial preferences may not be; age discrimination is unjust when not relevant to a job, but it is justified in drinking laws and driving privileges. The Fourteenth Amendment does not spell out when classifying is right or wrong; it simply says that a state cannot “deprive any person of life, liberty, or property without due process of law, nor deny to any person … the equal protection of the laws.”
To apply the Fourteenth Amendment, the court developed a system of three tiers for reviewing discrimination cases: (1) “strict scrutiny” for cases involving race or the restriction of a “fundamental right”; (2) “intermediate scrutiny” for cases involving women or illegitimate children; and (3) a “rational basis” review for cases involving disability, age, illegal aliens, and—in most past cases—sexual orientation. Each of the three tiers requires a different degree of scrutiny or burden of proof by the government to justify restricting rights or placing disadvantages on different groups. Since the Fourteenth Amendment was primarily intended to stop racial discrimination, race demands the highest standard—strict scrutiny—which requires the government to show a “compelling state interest” for any restrictions and they must be “necessary” and “narrowly tailored.” Intermediate scrutiny, for discrimination against women, must show an “important state interest” and the restriction must be “substantially related” to that end. The lowest standard of review is rational basis, which only requires the government to show that the challenged classification has some “rational relation” to a “legitimate state interest” and does not require the court to agree with the justification in order to deem it rational.
As one might guess, the three-tiered system is controversial because it is imprecise: What is the difference between a compelling state interest, an important state interest, and a legitimate state interest? And what is the difference between a necessary relation, a substantial relation, and rational relation? How are groups assigned to the tiers? Because of the ambiguities, judges and scholars have always wrangled over the categories and even over the value of the whole scheme.
Despite the ambiguities, the three tiered scheme is the reference point for discrimination cases; and most cases involving sexual orientation have been reviewed under some version of the ‘lowly” rational basis standard. This was true in Baker (1971), Bowers (1986), Romer (1996), and Lawrence (2003) with varying degrees of rigor and explicitness. When Windsor was decided in 2013 striking down part of DOMA (the Defense of Marriage Act), it upset the pattern because the majority opinion by Kennedy seemed to bypass the three tiered scheme—using instead a “practical effect” argument that DOMA was unconstitutional because its motive and impact were to “demean” same-sex couples without serving any legitimate state interest. This was said to violate the Fifth Amendment’s “due process” clause because DOMA was a federal law not a state law (which meant the Fourteenth Amendment could not be applied). The court claimed that implicit protections for personal liberty and equal dignity in the Fifth Amendment meant the federal restriction of marriage is unconstitutional, while not invalidating state marriage laws and even recognizing the historic role of states in defining marriage.
In dissenting, Scalia, Thomas, and Alito said that the Constitution is “silent” on the question of marriage and that the court could not legitimately resolve the issue one way or the other. Insofar as the court might try, the minimal rationality test was most appropriate, which Kennedy never mentioned but seemed to acknowledge by looking for a “legitimate purpose” (as he said in his conclusion). The surprise is that Kennedy argued that no legitimate purposes were served because the motive for the law was nothing but “animus” against same-sex couples, even though there were plausible reasons for DOMA cited in the opinion—namely, the desire to promote the stability of marriage in an age of moral uncertainty. As an experienced judge, Kennedy was surely aware that upholding the law did not require him or the court to agree with the law makers’ rationale (stabilizing marriage)—it only needed to affirm that some reason exists, almost any reason, which serves some legitimate state purpose. By denying even minimal rationality, the court thought it was making a strong point; but, as the dissenters pointed out, the court unwittingly was exposing its own ideological “animus” against proponents of traditional marriage.
The decision in Windsor set the stage for lower courts to take additional ideological license with the established framework. In a series of rulings in 2013-14, a dozen or more panels of federal judges pushed things further, arguing under the Fourteenth Amendment because state laws were now being contested. In surveying the rulings in Idaho, Utah, Pennsylvania, Arkansas, and others, one can see the judges ignoring Windsor’s recognition of state roles and developing two new legal maneuvers that are highly questionable.
The first is to declare outright that the due process clause of the Fourteenth Amendment contains a “fundamental right to marry” for all persons without restrictions. This claim is the most shocking, since the Supreme Court has never suggested that such a fundamental right exists. In fact it has explicitly denied the claim, since “fundamental” is legally defined as “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty,” and these concepts have always included legal restrictions on the sex, age, blood relations, and numbers of spouses. The declaration of a new fundamental right looks like an attempt to settle the entire constitutional issue of same-sex marriage by the procedural rulings of district judges, while sometimes denying that it is a new right—an extreme form of judicial chutzpah.¹
The second legal maneuver is to argue for a higher standard of scrutiny than rational basis by two methods that are largely circular. Some judges took the newly asserted fundamental right to marry for all persons as a new justification for raising the challenge to the highest tier of strict scrutiny; this move seeks to exploit a presumed right that has not been proven to exist. Other judges sought merely to bump up the challenge to intermediate scrutiny, using a four point criteria for gauging degrees of disadvantage. Some of the criteria have merit, but the most salient one is circular because it cites the absence of same-sex marriage as a proof of unjust disadvantage—assuming once again what needs to be proven. Yet, these maneuvers did not seem to matter, since none of the reasons for passing higher or lower scrutiny was found to be persuasive or minimally rational. Whatever reasons were cited by supporters of the law—the importance of biological parents for a child, the need of boys for fathers, the link to procreation, the respect for tradition and stable norms—were all rejected for lack of merit, either “substantial” or “rational.” Hence, the predictable conclusion: “no sensible ground for differential treatment” exists.² In reading the lower court decisions, one is hard-pressed to find judges who admit that some justifications for traditional marriage laws might be reasonable or that they do not have to agree with the justifications to find them rational. The judges write as if the whole world were insane until 2013.³
While these cases are moving rapidly through district courts, the future remains unclear, since the issues will return to the Supreme Court sooner or later. The new situation created after Windsor by the lower courts will force the Supreme Court to face the ultimate questions—whether there is a fundamental right to marry by all persons, including same-sex couples, and what level of scrutiny is justified. The court could go several ways. A bare majority in Windsor held that excluding same-sex couples from marriage is “demeaning” and violated the due process claims of liberty and equal dignity implicit in the Fifth Amendment. But Justice Kennedy has shown reluctance to proclaim new fundamental rights, like the lower courts have done, or to use the three tiered system to raise the level of scrutiny, or to invalidate all state laws. This creates a dilemma for the Windsor majority, since the lower courts have gone further than the Supreme Court might have wished but clearly encouraged by denying any rational basis for traditional marriage.
The underlying cause of the dilemma is that most judges are in the grip of an ideological fever driven by the passion for absolute equality combined with post-modern relativism, leading them to think that marriage is merely a social construction, subject to redefinition based on personal desire. Hence, the judges feel threatened by any concession to the rational basis test because that would imply marriage has a basis in the reality of biological nature or natural law or the near-universal practice of cultures, undermining their ideological outlook. It is not likely they will abandon this outlook. But it is possible that they could act like judges and acknowledge that rational basis review means they do not have to agree with the proponents of traditional marriage to give them some deference. They simply have to admit that the proponents are not completely irrational or totally insane in their views. Is that asking too much from a judge?
 See Whitewood v. Wolf, 1:13-CV-1861, May 2014, Hon. Judge E. Jones III ruling for PA, that “due process” includes the fundamental right to marry without restrictions. And, Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah), Dec. 2013, Hon. Lucero: “Plaintiffs here do not seek a new right to same-sex marriage, but [are] exercising their existing right to marry.”
 Whitehood v. Wolf, 36.
 A notable exception is Judge Paul J. Kelly, Jr. of the Tenth Circuit Court of Appeals, writing in dissent on the appeal of Kitchen v. Herbert (D.C. No. 2:13-CV-00217-RJS, June 2014) who warned against judges “becoming philosopher-kings” and argued forcefully that “Utah should prevail on a rational basis analysis” and that “Windsor did not create a fundamental right to same-gender marriage.”