Brenner v. Scott: Will the Eleventh Circuit Rule for Marriage Equality or Not?

BY ALIX COHEN — On August 21, 2014, the U.S. District Court for the Northern District of Florida declared Florida’s same-sex marriage ban unconstitutional in Brenner v. Scott. Now, three Florida officials are appealing the case to the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit should affirm Brenner’s holding because Florida’s prohibition on same-sex marriage violates both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. While the district court focused predominantly on how the ban violated substantive due process, the appellate court could also find the ban unconstitutional on equal protection grounds—as the state’s marriage provisions clearly infringe upon both equal protection and substantive due process rights.

Substantive Due Process:

In Brenner, the court rightly found that Florida’s marriage provisions violate substantive due process. The Due Process Clause of the Fourteenth Amendment protects a narrow set of unenumerated but fundamental rights from state government interference. Because the right to marry is fundamental, the court reasoned that the law should be subject to strict scrutiny, which requires the law be narrowly tailored to serve a compelling state interest. Because there was no compelling government interest in prohibiting same-sex marriage, the provisions failed strict scrutiny and were found unconstitutional.

The defendants argued, and likely will continue to argue on appeal, that the right at issue here is not the right to marry, but a more narrow right to marry someone of the same-sex. Appellants contend that this is not a fundamental right that should be subject to heightened scrutiny because it is not deeply rooted in this nation’s history or traditions. But framing the right so narrowly misconstrues the fundamental rights analysis and our precedent (i.e. in Loving v. Virginia, the right was framed broadly as the right to marry—not as the right to inter-racial marriage). Yet, even when framed so narrowly, same-sex marriage is arguably still a fundamental right if we look at modern history: all nineteen federal courts that have ruled on-same sex marriage bans since U.S. v. Windsor have found them unconstitutional, and 26 states plus Washington, D.C. recognize the freedom to marry for same-sex couples.

Nevertheless, even if the Eleventh Circuit accepts Appellants’ flawed assertion that a fundamental right is not at stake, the same-sex marriage ban is still unconstitutional under the Equal Protection Clause.

Equal Protection:

While the district court opinion held that the ban also violated equal protection under a fundamental rights analysis of the clause, it did not conduct a thorough suspect class analysis. Under the Equal Protection Clause, laws that rely on suspect classifications are subject to heightened scrutiny, while laws that rely on non-suspect classes are subject only to rational basis review.

The district court did not conduct a suspect class analysis because in Lofton v. Secretary of the Department of Children and Family Services, the Eleventh Circuit held that sexual orientation was not a suspect classification and applied only rational basis scrutiny to a challenge to Florida’s same-sex adoption ban. However, this decision should not preclude the Eleventh Circuit from now finding that sexual orientation is a suspect class because an intervening Supreme Court case—Windsor—casts doubt on Lofton’s holding. Moreover, even without finding that classifications based on sexual orientation warrant heightened scrutiny, the same-sex marriage prohibition is nevertheless unconstitutional because it fails rational basis scrutiny.

In Lofton, the only reason the Court provided for its finding that classifications based on sexual orientation were not suspect was: “all of our sister circuits that have considered the question have declined to treat homosexuals as a suspect class.” However, this is no longer true today. In SmithKline Beecham Corporation v. Abbott Laboratories, which challenged the practice of discrimination based on sexual orientation in jury selection, the U.S. Court of Appeals for the Ninth Circuit held that sexual orientation classifications are subject to heightened scrutiny. In making this determination, the court reasoned that Windsor implicitly requires a level of scrutiny for sexual orientation classifications that is “unquestionably higher than rational basis review.” Although the Supreme Court in Windsor did not explicitly state what level of review it applied, by looking into the “actual purposes of the [Defense of Marriage Act],” rather than accepting the government’s claims at face value, it conducted the kind of searching review associated with heightened scrutiny. Thus, if the Eleventh Circuit follows its sister circuit’s analysis of Windsor, it should find that Lofton’s statement that sexual orientation is not a suspect class is effectively overruled, and that laws based on sexual orientation trigger heightened scrutiny.

Even if the Eleventh Circuit declines to follow the Ninth Circuit’s interpretation of Windsor, the law is still unconstitutional under rational basis review. While rational basis merely requires the state to employ reasonably related means to achieve a legitimate government interest, there is no legitimate interest for this prohibition. Florida asserts its goal is “the promotion of family continuity and stability”—essentially the same goal asserted by Indiana and Wisconsin in Baskin v. Bogan. In Baskin, Judge Posner described this goal as “so full of holes that it cannot be taken seriously,” and the U.S. Court of Appeals for the Seventh Circuit struck down these states’ same-sex marriage bans.

When the Supreme Court has suspected that a law was truly motivated by animus, it has looked at states’ asserted interests more closely, even under rational basis review. For instance, in Cleburne v. Cleburne Living Center, the Court struck down a zoning ordinance requiring special use permits to operate group homes for the mentally disabled under rational basis review. Finding the state’s asserted interests were a pretext, the Court found the true goal was bare desire to harm—which was not even a legitimate state interest. Similarly, Windsor explicitly stated that bare desire to exclude was not a “legitimate purpose”—suggesting the law would fail even under rational basis review. Furthermore, in Lawrence v. Texas, the Court declared moral disapproval was not a legitimate interest either. In each of these cases, the state provided a goal that might otherwise be legitimate, if it were not being used to mask animus—yet the Supreme Court found the true interest to be an illegitimate desire to exclude.

Thus, Florida cannot use “protection of the family” as a mask to cloak disapproval, animosity, or mere desire to exclude. Even under rational basis review, these are precisely the goals that the Equal Protection Clause of the Fourteenth Amendment is designed to protect against.

One thought on “Brenner v. Scott: Will the Eleventh Circuit Rule for Marriage Equality or Not?

  1. James Brenner

    Well done, very well written – the state has dropped its appeal at this point based on the decisiion of SCOTUS. But it is good to know that there are folks that agree with our argument.


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