Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review
With recent narrow decisions in two federal lawsuits challenging state constitutional bans on same-sex marriage, federal judges in Ohio and Kentucky have propelled the Sixth Circuit to the vanguard of interpreting the Supreme Court’s recent decision in United States v. Windsor. The two district court judges not only utilized the constitutional momentum generated by Windsor to chip away at and severely curtail those amendments prohibiting same-sex marriage, but also essentially invited the Sixth Circuit to review their respective decisions and to reexamine its own jurisprudence on sexual orientation in light of Windsor. In one respect, the results in these lawsuits mirror many federal courts’ recent decisions in similar cases. More importantly, however, these cases illustrate the struggle to wade through Windsor’s unclear standard of review, the intricate legal hoops through which district courts are jumping in post-Windsor lawsuits, and the building bottoms-up pressure for the Federal Courts of Appeals to assist in Windsor’s interpretation and application.
Kentucky: Marriage Rights Mandate Equal Protection
In the case of Bourke v. Beshear, four same-sex couples challenged a Kentucky constitutional amendment that bars recognition of same-sex marriages in Kentucky.  The district court found that this state constitutional provision violates the Equal Protection Clause of the United States Constitution insofar as it discriminates against same-sex couples lawfully married in other jurisdictions, and so ordered the Commonwealth of Kentucky to recognize valid same-sex marriages performed outside Kentucky. The order in Bourke did not go so far as to require Kentucky officials to begin marrying same-sex couples who wish to do so, but it was a crucial step for same-sex couples seeking marriage equality in Kentucky.
Although the plaintiffs presented various constitutional challenges to Kentucky’s law, the most important challenge and dispositive factor in the case was the plaintiffs’ Equal Protection challenge. Justice Kennedy’s majority opinion in Windsor featured prominently in the Kentucky district court’s order, and the court simply reproduced many passages from Windsor, substituting “Kentucky” for “United States” to drive Bourke to the same conclusion as Windsor. The district court, however, acknowledged that Windsor announcedno clear standard of review under which to analyze equal protection challenges to legal classifications based on sexual orientation. The court proceeded to apply rational basis review and held that because the state’s purported interest in “preserving the traditional definition of marriage” and mere tradition are not “rational bases” for upholding a law the classifies persons based on sexual orientation, the Kentucky prohibition on recognizing lawfully-performed same-sex marriages violated the Equal Protection Clause. 
Ohio: The Belt-and-Suspenders Approach to Marriage Rights
In the case of Obergefell v. Wymyslo, while the impetus for the suit grew partly out of the plaintiffs’ desire to be buried next to each other in a family cemetery plot that limited burial to “spouses,” the district court noted that numerous other rights and interests were at stake in a case involving two crucial moments in life – marriage and death. However, the Ohio district court had a much narrower question to decide than the court in Kentucky, namely whether Ohio could refuse to recognize a same-sex couple’s marriage (as “spouses”) on an Ohio death certificate in accordance with its constitutional ban on same-sex marriage. Nevertheless, the court proceeded to use a more thorough (and perhaps excessive) constitutional analysis, possibly in order to preserve the holding in case of an appeal.
The court in Obergefell analyzed the plaintiff’s case under two different methods of constitutional reasoning. At issue first was the plaintiffs’ right to remain married and the resulting right to Due Process recognition of their legal marriage. Finding that the right to remain married and not have one’s marriage invalidated merely by moving to a different state was a “fundamental liberty interest” under the Fourteenth Amendment to the United States Constitution, the court approached analysis of this right under a “balancing approach” of intermediate scrutiny. Consequently, the court held that because the state interests advanced were “vague, speculative, and unsubstantiated,” it could not use those interests to justify the harms imposed on the plaintiffs.
The second issue, similar to that in Bourke, was the plaintiffs’ right not to be discriminated against under the Equal Protection Clause. Here, the court found that “in derogation of [the Equal Protection Clause, Ohio law] has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states.” For the court, this “lack of equal protection of law [was] fatal” because it impermissibly singled out a group for disparate and inferior treatment without a rational basis. The court acknowledged that Ohio had offered reasons for this disparate treatment – such as protecting traditional marriage and families – but held that those purposes either (1) were not rationally related to or served by the Ohio ban on same sex-marriage, or (2) manifested animus towards gays and lesbians.
The Continuing Struggle With Windsor: Rights Revealed at the Interstices of Due Process and Equal Protection
A close comparison of these cases reveals not only that they reach essentially the same result for similar reasons, but also that the challenges presented by Windsor and the courts’ continuing struggle to adapt and interpret this momentous precedent. The court in Obergefell hung its ruling on the dual legal hooks of Due Process and Equal Protection. In the case of Due Process, the court reasoned that the line of cases from Roe v. Wade to Lawrence v. Texas mandated a “balancing approach” of intermediate scrutiny to the issues presented by same-sex marriage cases and the “fundamental rights” they implicate. Thus, without explicitly saying so, the court fell in line with Windsor’s “not-quite-rational-basis” pronouncements and seemed to naturally extend Windsor’s coverage.
However, the Obergefell court also analyzed the four factors that qualify a class as “suspect” under the Equal Protection Clause. Although the Supreme Court’s decision in Windsor declined to address this four-factor test, the court in Obergefell applied the test to the case before it and found that homosexuals likely met the criteria for a “suspect class” deserving of a higher level of scrutiny. Perhaps the court in Obergefell applied the test precisely because the Court in Windsor did not; or, perhaps the court in Obergefell saw application of the test as the natural next step from Windsor.
Regardless of the reason, while the application and outcome of the test declaring homosexuals a “suspect class” may ultimately be “correct,” it also may be taking Windsor a step (or four) too far, because Windsor reasoned, in part, that the applicability of federal mandates to state constitutions is limited. The district court itself hedged on this issue: even though it found that gays and lesbians are a suspect class and that Ohio’s justifications were insufficient under strict scrutiny analysis, the court proceeded to apply rational basis review to strike down the Ohio law as applied to the plaintiffs. Despite its best efforts to expand the reasoning of Windsor, the Obergefell court nonetheless settled for the “safe” reading of Windsor, invalidating the Ohio law without treading heavily into uncharted constitutional territory.
Bourke differed from Obergefell in that the court used only an Equal Protection analysis under a rational basis standard to require Kentucky to acknowledge same-sex marriages performed outside the state. Nonetheless, the court hinted that Windsor’s lack of pronouncement of an explicit standard of scrutiny under which to analyze classifications based on sexual orientation is open to a wide range of interpretations, and will possibly support a future ruling by a higher court that gays and lesbians are a “suspect class.” However, the court’s decision demonstrated that it felt more constrained by the Sixth Circuit’s precedent, which has analyzed classifications based on sexual orientation under a rational basis standard. For the court in Bourke, this was still enough to invalidate Kentucky’s marriage laws as applied to legally married, gay couples. The court did not see the need to engage in the same strenuous and “cover-all” line of reasoning as the Obergefell court did, merely noting that gays and lesbians “share many characteristics of other groups that are afforded heightened scrutiny.” The Bourke court thus also engaged in the “safe” reading of Windsor, but without adding the same aggressive reasoning and strict scrutiny analysis as the Obergefell court.
The Appellate Challenge and Pressing Need to Define a Standard
Both courts in Obergefell and Bourke applied simple rational basis scrutiny to invalidate similar laws but also hinted at a higher standard of review for laws that classify persons based on sexual orientation. Although Bourke perhaps applied Windsor more emphatically, it nevertheless reasoned that the lack of a clear pronouncement of a “scrutiny standard” in Windsor did not replace the Sixth Circuit’s precedent mandating a simple rational basis analysis. However, whereas the Bourke court found an “absence” of animus in Kentucky’s law, the Obergefell court explicitly reasoned that with the “primary purpose and practical effect” of “disparage[ing] and demean[ing] the dignity of same-sex couples,” the marriage ban in question evidenced “irrational prejudice” and hence constitutionally impermissible animus.
In discussing this panoply of constitutional topics, including “irrational prejudice,” “unusual discrimination,” “animus,” and “fundamental liberty interests,” both courts accurately followed the lead of Windsor: purport to analyze classifications by sexual orientation under one (heightened) standard, but also invalidate them under a more settled, “surer” standard. In light of Windsor’s unclear reasoning that possibly applies something more than rational basis review but which no one can quite enunciate for sure, not much more could be expected of federal district courts. But both Obergefell and Bourke evince the nebulous cloud over the judicial system created by the Supreme Court’s Windsor decision. In the post-Windsor world, courts have the ability to expand and manipulate the “not-quite-rational-basis” standard of Windsor, but at the same time are clearly constrained by circuit precedent and unable to make a stand-alone “heightened scrutiny” argument that is certain to withstand appeal. Rational basis scrutiny, or “rational basis with a bite,” seems to function as an acceptable manner of invalidating same-sex marriage bans for now. But it has two downfalls: not only does it weave a tangled web of judicial uncertainty, but it also leaves open the possibility of upholding classifications based on sexual orientation in courts that might not apply rational basis with the same “bite” as the courts in Bourke and, more emphatically, in Obergefell.
Within the Sixth Circuit itself, courts currently are conflicted as to the prevailing level of scrutiny for classifications based on sexual orientation. The court in Bourke cited a case to support the proposition that in the Sixth Circuit “sexual orientation is not a suspect classification and thus is not subject to heightened scrutiny,” and so toed the judicial line on this point. Yet the court in Obergefell cited Sixth Circuit case law to emphasize that the rational basis review that it applied was not “toothless” in any way and to intimate that Sixth Circuit precedent on this issue demands a more searching review. This reasoning, as well as the entirety of the courts’ opinions, demonstrates the need for appellate-level clarification of Windsor. In fact, both the Obergefell court and the Bourke court essentially invited the Sixth Circuit to do just that. In light of recent federal appellate level precedent preventing gays and lesbians from being bumped from juries on account of their sexual orientation, the extension of Windsor’s potentially-heightened-scrutiny standard in the Sixth Circuit is plausible. What remains to be seen is whether the Sixth Circuit will actually do so in the state’s appeal in Bourke.
Of course, the ultimate arc of these cases leads to the Supreme Court in one form or another, whether through these particular cases, or one of the other numerous same-sex legal battles being waged around the country in the wake of Windsor. As the court in Bourke predicted, “at least one other Supreme Court opinion will likely complete this judicial journey [of Romer, Lawrence, and Windsor] in the next few years.” In the meantime, it is imperative that federal appellate courts provide guidance on the interpretation of Windsor, especially in the Sixth Circuit.
Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013); Bourke v. Beshear, 2014 U.S. Dist. LEXIS 17457 (W.D. Ky. Feb. 12, 2014).
 United States v. Windsor, 133 S.Ct. 2675 (2013).
 For a brief summary of these cases, see Bourke, 2014 U.S. Dist. LEXIS 17457at *33-35.
 Id. at *8-9.
 Id.at *32.
 Id. at *12-13.
 See, e.g., id.at *23, 26, and 27.
 Id. at *16.
 Id.at *20, 32. The court noted that a higher level of scrutiny would produce the same result, and that since Kentucky’s prohibition on same-sex marriage lacked a “clear showing of animus,” the court still sought a rational basis for the law. Id. at *28.
Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 979 (S.D. Ohio 2013) (noting that “bank accounts, inheritance rights . . . and other [legal] rights associated with marriage” are implicated by the death of one spouse).
 Id. at 972-73. See also Ohio Const. art. 15, § 11.
Obergefell, 962 F. Supp. 2d 968, 978-79 (basing its analysis in part on Lawrence v. Texas, 539 U.S. 558 (2003) and Zablocki v. Redhail, 434 U.S. 374 (1978)).
 Id. at 981. The court summarized the state’s proffered interests as “the right to define marriage through the democratic process,” “approaching social change with “deliberation and due care,” safeguard[ing] the religious rights and beliefs of others,” and “[p]reserving the traditional definition of marriage.” Id. at 980-81.
 Id. at 985.
 Animus can never justify a disparate treatment law. See, e.g., id. at 992-93, and the cases discussed therein.
 Roe v. Wade, 410 U.S. 113 (1973).
 Lawrence v. Texas, 539 U.S. 558 (2003).
Obergefell, 962 F. Supp. 2d at 978-79.
 United States v. Windsor, 133 S.Ct. 2675, 2693-95 (2013) (discussing the “purpose and effects” of DOMA without explicitly applying a known standard of Due Process review). Notably, however, the court in Obergefell refused to settle whether marriage itself and the ability to marry a person of the same sex are fundamental rights protected by the Fourteenth Amendment, because that issue was not presented by the case before it. However, the court did note that a “substantial logical and jurisprudential basis exists” for that conclusion. Obergefell, 962 F. Supp. 2d at 982.
 Obergefell, 962 F. Supp. 2d at 987 (listing the factors as (1) historical discrimination, (2) “whether the class has a defining characteristic that frequently bears [a] relation to ability to perform or contribute to society,” (3) “obvious, immutable, or distinguishing characteristics” of the class, and (4) “whether the class is a minority or politically powerless.”) (quoting Windsor v. United States, 699 F.3d 169, 181 (2nd Cir. 2012) (internal quotation marks omitted)).
 Windsor, 133 S.Ct. at 2693.
 Obergefell, 962 F. Supp. 2d at 991-92. The court was thus able to split its reasoning between heightened scrutiny, intermediate scrutiny, and rational basis in an attempt to analyze same-sex marriage laws along the gamut of equal protection review, while also securing its ruling against attack on appeal.
 Bourke v. Beshear, 2014 U.S. Dist. LEXIS 17457, *16-17 (W.D. Ky. Feb. 12, 2014).
 Id. at *16-17.
 The court thus seemed to take seriously the passages of Windsor that note the power of the states to regulate marriage. See Windsor, 133 S.Ct. at 2692-93.
 Bourke, 2014 U.S. Dist. LEXIS 17457at *18 (noting these factors as historical discrimination, immutable characteristics, discreteness, and relative political powerlessness). See also Obergefell, 962 F. Supp. 2d at 987.
 Bourke, 2014 U.S. Dist. LEXIS 17457 at *16-17.
 Obergefell, 962 F. Supp. 2d at 995.
 Bourke, 2014 U.S. Dist. LEXIS 17457at *16-17 (citing Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012)).
 Obergefell, 962 F. Supp. 2d at 991 (quoting Peoples Rights Org. v. City of Columbus, 152 F.3d 522, 532 (6th Cir. 1998)).
 SmithKline Beecham Corp. v. Abbott Labs., 730 F.3d 471 (2014) (extending the protections of Batson v. Kentucky to peremptory challenges based on sexual orientation).
 The governor of Kentucky has announced his decision to appeal the order in Bourke. Brett Barrouquer, Kentucky’s Top Democrats Divided by Gay Marriage,Associated Press, March 4, 2014, available at http://abcnews.go.com/US/wireStory/ag-kentucky-appeal-order-gay-marriage-22766746.
 Bourke, 2014 U.S. Dist. LEXIS 17457at *41.