When will the Supreme Court rule on marriage laws? While that question is debated, another brews beneath the surface. It may affect not just the outcome of any ruling, but how we think of support for marriage—and related policies—whatever the Court decides.
The question—which can determine who has the burden of proof in marriage cases—is whether laws defining marriage as a male-female union should be treated as forms of sex discrimination.
Some background first. Courts have created tests to enforce the constitutional right to equal protection of the laws. One asks if a policy involves a “suspect classification.” If so, it’s presumed unconstitutional, and the government has to show that it clears one of two bars.
Policies that classify by race or ethnicity, for example—like school segregation and interracial marriage bans—are struck down unless they’re narrowly tailored to serve compelling state interests. Those that classify based on sex get “intermediate scrutiny”: they have to be “substantially” related to an “important” state interest.
Other policies just have to have some conceivable rational basis—a very low bar that effectively shifts the burden of proof to the policies’ opponents.
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