Although sexual orientation is officially not a suspect class, almost all U.S. courts that have considered the permissibility of discrimination based upon that particular criterion have applied, in practice, a rather more exacting examination of the legislative objectives behind the discriminatory legislation than is typically permitted under rational basis review, even while simultaneously denying that they are doing anything of the sort. This is what is typically referred to as “rational basis with teeth” — the unofficial fourth category of review under the 14th Amendment. And until sexual orientation is declared to be a suspect class, or until the classification system is replaced with a scale, the courts can do nothing else.
But at least in the context of same sex marriage prohibitions, could intermediate scrutiny be directly invoked on the basis of the Supreme Court’s prior illegitimacy jurisprudence? Illegitimate children are already a suspect class under the law; it is impermissible under the 14th Amendment to burden children whose parents were not married at the time of their birth simply in order to encourage future couples to get married before having kids. So why can the state require that the children of same sex couples be illegitimate in order to encourage opposite sex couples to make their children legitimate?
The argument does not appear to be a particularly common one, but I wonder now why it isn’t made more often. One of the reoccurring arguments touted as a justification for Prop 8, as well as other prohibitions on gay marriage, is that marriage is uniquely designed to encourage responsible procreation, and that access to marriage should therefore only be granted where it will serve as a deterrent to reproducing accidentally outside of marriage. Marriage is only for straight people, the argument goes, because only straight people produce kids the old fashioned way, and the best way to raise kids that were produced the old fashioned way in the context of a marital relationship.
This argument is inadequate in that it provides no explanation for why kids that were not produced on accident are not also best raised in the context of a martial relationship. Many gay couples do, very purposefully, create and raise kids, and if kids are best raised by married couples, then it is pretty damned spiteful to order that those kids should be denied the benefit of married parents just so that straight couples who get pregnant are more likely to have a shotgun wedding.
Beyond being spiteful, prior Supreme Court decisions have repeatedly indicated that the objective itself is impermissible. In Trimble v. Gordon, 430 U.S. 762 (1977), the Supreme Court rejected the argument that a law prohibiting intestate succession of bastards was constitutionally permissible, because
[i]n a case like this, the Equal Protection Clause requires more than the mere incantation of a proper state purpose. No one disputes the appropriateness of Illinois’ concern with the family unit, perhaps the most fundamental social institution of our society. The flaw in the analysis lies elsewhere. As we said in Lucas, the constitutionality of this law “depends upon the character of the discrimination and its relation to legitimate legislative aims.” 427 U.S. at 504. The court below did not address the relation between § 12 and the promotion of legitimate family relationships, thus leaving the constitutional analysis incomplete. The same observation can be made about this Court’s decision in Labine, but that case does not stand alone. In subsequent decisions, we have expressly considered and rejected the argument that a State may attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate relationships.
Likewise in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972), the Supreme Court refused to accept the argument that it is permissible to discriminate between legitimate and illegitimate children as a means of encouraging people to “shun illicit relations because the offspring [of those relationships] may not one day reap the benefits of workmen’s compensation.” 406 U.S. at 173. The Court found that the State’s interest in protecting “legitimate family relationships” may have been itself a legitimate objective, but it was not an end that could be promoted by inflicting hardship on those who happened to not be part of a traditional nuclear family arrangement:
[t]he status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth, and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent.
Almost all of the Supreme Court’s past opinions on distinctions based upon illegitimacy contain language that would be equally at home in the decision issued today by the 9th Circuit in Perry v. Brown. Gay couples are not responsible for the fact that straight people sometimes get knocked up — so why are they punished, and their kids forced to be illegitimate, on the chance that there could be a straight couple out there that would refuse to enter into any relationship that gay people were also allowed to enter? Punishing gay couples, and their children, by prohibiting them from entering into the contractual arrangement that the state has deemed the best for children to be raised in, does exactly what the Weber Court prohibited: it imposes disabilities on those who are not engaging in irresponsible procreation as a means of encouraging better behavior from those who are not being similarly responsible.
-Susan
The View From LL2 
Isn’t there a distinction between saying (1) a child should not suffer some disability because of his illegitimate status; and (2) a child should not suffer the “disability” of illegitimacy because of his status as the child of a same-sex relationship? At bottom, the cases involving illegitimacy strike me as an attempt to legitimize illegitimacy as a status. That effort would be undermined by labeling illegitimacy itself a “disability” (as you seem to do in arguing that children of couples in non-marital same-sex relationships are “punished” by their illegitimate status).
Also, your characterization of the “procreation” argument is a bit of a straw man. The argument was not that gay marriage should be barred because of “the chance that there could be a straight couple out there that would refuse to enter into any relationship that gay people were also allowed to enter.” Rather, Prop 8 proponents argued that (1) marriage was created to incentivize a stable relationship to avoid irresponsible procreation; and (2) marriage was unnecessary for same-sex couples, as they needed no incentive to avoid irresponsible procreation “as a matter of biology.” See Perry, slip. op at 56, 59. To be clear, I don’t find this argument especially convincing, but I think it’s important to address it squarely.
This is actually a reply to your second comment. Because WordPress is stupid.
Okay, I see what you’re arguing now. But do you think a single prop 8 supporter is acrtually going to claim that marriage itself is irrelevant, it’s just a way of tricking straight couples into staying together? “Children do better when raised by a married couple” is an argument that is thrown about all over the place, and featured prominently in the pro-Prop 8 briefs and amici.
In their appellate brief, for instance, the proponents state that CA adoption laws allow “any otherwise qualified single adult or two adults, married or not” to adopt, because kids that need to be adopted already lost their shot at the “optimal environment” of a two-parent married household, and so adopted kids might as well go live with sub-optimal unmarried parents. Proponents state that this is no way an argument that unmarried parents are just as good for kids, because “[i]t is simply implausible that by recognizing and providing for the practical reality that the ideal will not be achieved in all cases, a State somehow abandons its interests in promoting and increasing the likelihood of that ideal.” The ideal being…. married parents, presumably, as opposed to a single parent or two unmarried parents.
Even if the argument is made the way you phrased it, it basically amounts to a claim that marriage is just a cookie that the State gives to straight people if they stop being irresponsible floozies. You didn’t leave the mother of your child today? What a good little straight person you are, have a marriage cookie!
But if marriage is just a cookie the state gives to couples that agree to stay together for the kids, what exactly is so desirable about it? Why are straight people going to stop being floozies in order to get this cookie? … the tax breaks? They aren’t that great.
Plus, refusing to give gay people this fantastic cookie — a cookie that the Supreme Court has recognized on several occasions to be a “basic civil right of man” and “fundamental to our very existence and survival” — still impermissibly punishes the responsible actors, just so that irresponsible actors will (somehow) keep on desiring that cookie.
And going back to your prior comment, at point 2, the dissenting opinion specifically considers the argument that there is a “rational basis” in prohibiting SSM because allowing SSM could cause straight couples to be disinclined to want the arrangement on the grounds that gay couples are also allowed to have it. And then he finds that such a legislative scheme is a-okay. The proponents are definitely arguing that gay couples aren’t allowed to have a marriage cookie, because if gay people get marriage cookies, then straight people won’t want them as much.
Marriage cookies probably taste like thin mints, if I had to guess.
If having kids outside of marriage is not a bad thing — not a “disability” — then the state’s primary argument for why it can strip away same-sex marriage disappears entirely. The state has already declared that its purpose with Prop 8 is to encourage that children be raised by married parents, because being raised by married parents is better than being raised by not-married parents. So the state has an outcome (married parents) that it believes to be superior, but it is specifically denying that outcome to a very precise class, i.e., children of same-sex unions.
But what’s worse is that the state is deliberately prohibiting Class A (existing kids of same sex parents) from having married parents … as a means of carrying out the state’s goal of giving Class B (hypothetical future kids of opposite sex parents) a theoretically slightly higher chance of receiving the exact same benefit that the state is prohibiting Class A from having.
It’s the very definition of irrational and arbitrary. The state’s method of enacting its purported objective — the objective of encouraging children to be raised by married couples — is by preventing children from having married parents.
And it gets worse still: the state’s justification for this inequity is that Class B has parents who are likely to be irresponsible and accidentally reproduce, while Class A has parents that are more likely to carefully prepare and plan for a child. Such a scheme plainly violates “the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.”
Illegitimacy jurisprudence could be precedent for invoking intermediate scrutiny in reviewing same sex marriage prohibitions, because doing so would further precisely the same purposes that recognizing illegitimacy as a quasi-suspect class provided.
In short, what I’m proposing is that it be recognized that it is not illegitimacy, per se, that is the quasi-suspect class, but rather that it is members of all non-traditional family arrangements that are part of a quasi-suspect class. In the 1970s, it was illegitimate children that were the members of this class most frequently targeted by bias-based legislation — and because of this heightened risk of constitutionally improper legislation, the courts were granted a higher level of scrutiny in examining legislation that intentionally burdened illegitimate kids. Now, it is members of families headed by same-sex parents that are the most frequent target of laws denying them benefits that members of “traditional” families enjoy — and because laws that promote “traditional” family arrangements by placing burdens non-traditional families are of a heightened likelihood to be motivated by animus against non-traditional-families, heightened scrutiny by the courts is likewise warranted.
This is a due process/fundamental right claim as much as it is an EPC argument. Whether it be a ‘traditional’ family or not, the Court has consistently held that “the privacy of familial relationships [is] to be entitled to procedural due process protections from disruption by the State.” This is because the Court “has long recognized that freedom of personal choice in matters of… family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”
Yes, the state is allowed to encourage its citizens to enter into domestic living patterns that the state has deemed to be “ideal family units” — which is apparently a middle class man and woman who get married, and then at around ages 27-33 proceed to have 2.4 children. But the state is not allowed to do so by punishing family units that do not meet its criteria for ideal-ness.
And although legislatures may legitimately enact laws “based on morals and general welfare because [the laws] discourage[] bringing children into the world out of wedlock”, when the State does assert such a purpose as a justification for a law, the Court is permitted “to determine whether the means used to achieve these ends are constitutionally defensible,” and to look behind the curtain of the purported objective and examine whether it actually carries out the the asserted objective. “In a case like this,” — where the state’s asserted goal is “the promotion of [legitimate] family relationships” — “the Equal Protection Clause requires more than the mere incantation of a proper state purpose.” This heightened scrutiny for laws that punish the quasi-suspect class of non-traditional families applies the same, whether the target of the law is illegitimate kids or same sex marriages.
“If having kids outside of marriage is not a bad thing — not a “disability” — then the state’s primary argument for why it can strip away same-sex marriage disappears entirely. The state has already declared that its purpose with Prop 8 is to encourage that children be raised by married parents, because being raised by married parents is better than being raised by not-married parents. So the state has an outcome (married parents) that it believes to be superior, but it is specifically denying that outcome to a very precise class, i.e., children of same-sex unions.”
See, this is where you and I see the Prop 8 proponents’ arguments differently. At least as presented in the opinion, they were not arguing that child-rearing by married people was the benefit to be achieved. The benefit was child-rearing within the context of a stable relationship; “marriage” was merely the incentive to enter such a relationship. Because same-sex relationships cannot biologically beget children, there is no need (say the Prop 8 folk) to provide the incentive to enter a relationship.
Again, this argument seems to fudge the issue a bit (as it seems to ignore the possibility of adoption or other means for same-sex couples to raise children), but I think it’s important to be accurate.
Discrimination against nonmarital children is extremely persistant. A lot of children are killed because of it. That still happens quite a bit. Ask any big city EMT about the babies found in Dumpsters. Or do a Google search on “baby farming”. Now, babies are sold to rich couples, often they are overseas. The US has laws that directly target children and it is one of the worst places to be a nonmarital child in the developed world. Thats why many American families are disintegrating.
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