Tag Archives: gay marriage

Scrutinizing the Conversion of Scrutiny Applied to Conversion Therapy: A Ninth and Third Circuit Split

Author: Stephen Doyle, Associate Member, University of Cincinnati Law Review

For four decades, homosexuality has not been considered a mental disease or defect.[1] Nonetheless, many parents attempt to subject their children to sexual orientation change efforts (SOCE) to ensure their maturation in a heteronormative lifestyle despite the many negative physical and mental health effects SOCE can have on an individual. Both California[2] and New Jersey[3] passed laws banning the practice of SOCE on minors by licensed mental health providers. Both of these laws were challenged and upheld in Pickup v. Brown[4] and King v. Governor of New Jersey,[5] respectively. Although the Ninth and Third Circuits upheld the laws, the level of scrutiny each court applied to the laws differed. The Ninth Circuit’s rational basis analysis ultimately favors opponents of SOCE, but the Third Circuit’s more practical and precise intermediate scrutiny analysis is the better of the two.

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Obergefell, Bourke, and “Fundamental Rights”: Gradually Bringing Same-Sex Marriage to Ohio and Kentucky

­Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review

With recent narrow decisions in two federal lawsuits[1] 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.[2] 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.[3] 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.

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Where Due Process and Equal Protection Meet: Articulating the “Fundamental Right” of Marriage

Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review

Since the Supreme Court’s decision in United States v. Windsor[1] last summer, two questions have been on many court watchers’ minds. First, after Windsor articulated a lengthy reasoning for its decision to strike down the Defense of Marriage Act, under what standard of review will courts evaluate laws that discriminate against same-sex couples? Second, can the standard for invalidating the federal Defense of Marriage Act (DOMA) under the Fifth Amendment be applied to States through the Fourteenth Amendment, or even be enunciated in a meaningful way? The Supreme Court’s current line of jurisprudence on constitutional problems that implicate same-sex issues necessitates that these two questions be considered and answered together,[2] as the United States District Court in Utah did in Kitchen v. Herbert.[3] Ultimately, the Kitchen case shows that the reasoning used in Windsor might not have been the soundest way to analyze the issues presented, and that there are alternative lines of reasoning that better support same-sex couples’ efforts to overturn state bans on gay marriage.

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Cracking Windsor’s Code: The Unusual Judicial Review Standard of United States v. Windsor and Its Potential Impact on Future Plaintiffs

Author: Colin P. Pool, Publications Editor, University of Cincinnati Law Review

The Supreme Court’s opinion in U.S. v. Windsor, [1] which struck down Section 3 of the Defense of Marriage Act (DOMA), has been criticized by many for a perceived “lack of clarity,”[2] or a lack of “parameters, . . . objective analysis, [or] guidance as to how to apply [it].”[3] These shortsighted characterizations misread Windsor. In fact, the Court’s analysis is based on long-established, if somewhat antiquated, equal protection jurisprudence: “careful consideration” triggered by the “unusual character” of a statute. With this standard’s reemergence, the possibility arises that future equal protection plaintiffs may be able to take advantage of it.

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