How does the modern Supreme Court analyze claims of discrimination based on sexual orientation?

0:04It's important to remember that LGBTQ rights under the Constitution, the Supreme Court has decided those rights, has resolved issues involving those rights, not under the Equal Protection Clause, which is the modern equality guarantee. That's the clause of the Constitution that gets us Brown v. Board of Education, Loving v. Virginia, no race discrimination. It's the clause of the Constitution that gets us no sex discrimination.

0:31But the LGBTQ cases were decided under the concept of substantive due process. Remember, earlier on, you learned about substantive due process, this idea that the due process clause guarantees certain unenumerated, unwritten rights against state interference. Well, what are those rights? Remember, there's this issue of, does substantive due process just let judges make up whatever rights they think are good, that they think are important? Obergefell v. Hodges held that the right to marry is a fundamental right. This has been held to be true before, as well, therefore, because it's a fundamental right, the Court strictly scrutinizes limitations on the right to marry, so it's strict scrutiny but under substantive due process. Because marriage is so fundamental,

1:21we will strictly scrutinize restrictions on that right. This has come under a lot of criticism because the conservative majority on the Supreme Court, again, they don't reject substantive due process. They just ask, if we're going to limit substantive due process in order to limit judicial discretion, well, then we should narrowly define the right, and we should look to a long history and tradition of that right.

1:44Well, under that understanding, Obergefell v. Hodges, the right to same sex marriage is clearly wrong because there was no long standing history or tradition of same sex marriage in the United States, so you cannot support the result in Obergefell v. Hodges under the more conservative version of substantive due process. Now, Obergefell v. Hodges could same sex marriage be justified under equality jurisprudence?

2:13Well, remember that the question is, what is a legitimate regulation of a right as opposed to what is an invidious discrimination or bad discrimination? The Court has certain heuristics, like race gets heightened scrutiny, sex gets intermediate scrutiny. Now, the Supreme Court has never said that sexual orientation gets a higher tier of scrutiny.

2:38But it's not implausible to think that should be the case, because again, sexual orientation is innate, and if that's true, that raises red flags, if you're trying to distinguish people on the basis of characteristics that they can't control. Ultimately, I think the question boils down to whether it is a reasonable regulation to limit marriage to an institution between one man and one woman, or if it's unreasonable to do so, and therefore, arguably just an invidious, bad discrimination. That's a hard question. People are going to disagree over that. Obviously, sexual orientation has something to do with marriage and the purposes of marriage are procreation and child rearing. But marriage has other purposes, too, like love and belonging. It's a health and welfare institution.

3:29When you go up to the altar, you save in sickness or in health, for richer or poorer. Obviously, gay Americans can participate in those purposes. They can also participate in procreation and child rearing almost equally, if not equally to heterosexual couples, to opposite sex couples. This is a very difficult question.

3:47I think under the original meaning and under the modern doctrine, I happen to think that Obergefell v. Hodges is within or the result, I should say, of Obergefell v. Hodges is within the range of plausibly correct original meanings, that it should not be overturned on the basis of the conservative justice view of precedent.