Two years ago in United States v. Windsor, the Supreme Court held that the Constitution forbids the federal government from treating same-sex marriages differently than opposite-sex marriages. The Court’s majority, writing through Justice Anthony Kennedy, recognized that discriminating against lawfully wed same-sex couples violates the Fifth Amendment’s “prohibition against denying to any person the equal protection of the laws,” a prohibition which the “equal protection guarantee of the Fourteenth Amendment makes … all the more specific and all the better understood and preserved.” Because Windsor challenged only the federal Defense of Marriage Act, no state marriage laws were directly affected.
Given the Court’s broad language, however—especially its direct reference to the Equal Protection Clause—many (including Justice Antonin Scalia in dissent) predicted that the opinion’s reasoning would eventually be used to strike down state laws and constitutional provisions that deny marriage licenses to same-sex couples. They were right. Windsor served as the basis for dozens of challenges to marriage laws across the country, initially resulting in an unbroken series of victories for marriage equality in federal courts, which the Supreme Court declined to review.
Finally, the U.S. Court of Appeals for the Sixth Circuit (which covers Kentucky, Michigan, Ohio, and Tennessee) issued a contrary ruling, holding that “the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.” The Supreme Court could thus no longer delay taking up the marriage debate.
Cato has accordingly filed what will almost certainly be our final brief on this issue. Joining with noted originalist scholar (and Federalist Society co-founder) Steven Calabresi and Yale law professor William Eskridge—one of the leading experts on American legal history—we urge the Court to reverse the Sixth Circuit’s decision and finally fulfill the Constitution’s promise of equal protection under law to millions of gay Americans and their children.