Same-sex marriage has engendered heated debate throughout the country. Many states have passed statutes or constitutional amendments that prohibit same-sex couples from marrying, and that deny recognition of same-sex marriages that were legally formed in other states. These same-sex marriage bans may impact gay individuals' rights and claims to state and federal benefits. For example, they may affect tax liabilities and entitlements to Social Security benefits. Until recently, state same-sex marriage bans were seemingly insulated from Fourteenth Amendment equal protection and due process challenges to their validity because of a 1972 Supreme Court case, Baker v. Nelson . There, the Supreme Court dismissed equal protection and due process challenges to a state statute that defined marriage in terms of a man and a woman, finding that the issues involved in the case did not present a substantial federal question. Then, it discusses key cases that led to the existing circuit split on the constitutionality of state same-sex marriage bans. However, the Fifth Amendment applies to action by the federal government, whereas the Fourteenth Amendment applies to state action. The circuit courts have split regarding whether state same-sex marriage bans violate the Fourteenth Amendment's guarantees, and in doing so, they have interpreted Supreme Court precedent in differing ways. Conversely, the U.S. Courts of Appeals for the Fourth, Seventh, Ninth, and Tenth Circuits have all held that doctrinal developments since Baker —more specifically, the Supreme Court's decisions in Romer v. Evans , Lawrence v. Texas , and United States v. Windsor —indicate that the Court now views the issues summarily decided in Baker as raising substantial federal questions. These courts have also considered the appropriate level of scrutiny for classifications based on sexual orientation required under the Constitution's equal protection principles, and whether the fundamental right to marry under the Constitution's due process principles incorporates same-sex marriage. In doing so, they have each determined that doctrinal developments subsequent to Baker render that decision non-binding. On the one hand, the Fourth, Ninth, and Tenth Circuits have all subjected state same-sex marriage bans to heightened levels of scrutiny after finding that such bans infringe upon fundamental rights or create suspect classifications. The Seventh Circuit held that state same-sex marriage bans cannot survive rational basis review as "[t]he discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny...." The Seventh Circuit observed that because such bans cannot pass constitutional muster under equal protection principles, it had no reason to reach the question of whether or not the fundamental right to marriage includes the right to same-sex marriage for purposes of the due process clause. As an initial matter, the Sixth Circuit considered whether Baker prevented it from determining whether state same-sex marriage bans violate the Fourteenth Amendment. Supreme Court Appears Poised to Resolve the Circuit Split

On January 16, 2015, the Supreme Court announced that it was consolidating and granting review of the four state same-sex marriage ban cases that the Sixth Circuit decided in DeBoer v. Snyder . Oral arguments are scheduled for April 28, 2015. If the Court were to reach this conclusion, it could arguably do so by finding that state same-sex marriage bans neither create suspect or quasi-suspect classifications, nor infringe upon fundamental rights, and thus are not subject to heightened scrutiny under the Fourteenth Amendment's equal protection and due process guarantees, just as the Sixth Circuit did in DeBoer . On the other hand, if the Court were to find that state same-sex marriage bans are unconstitutional, it would seemingly broaden the rights of gay individuals by permitting same-sex marriages in all states.
Same-sex marriage has engendered heated debate throughout the country. There is no federal same-sex marriage prohibition after the Supreme Court's decision in United States v. Windsor, which struck down the portion of the Defense of Marriage Act that defined marriage as a union between a man and a woman. However, many states have passed statutes or constitutional amendments that prohibit same-sex couples from marrying, and that deny recognition of same-sex marriages that were legally formed in other states. These state same-sex marriage bans may impact gay individuals' rights and claims to state and federal benefits. For example, such restrictions may affect tax liabilities and entitlements to Social Security.
Until recently, state same-sex marriage bans were seemingly insulated from Fourteenth Amendment challenges in federal courts because of a 1972 Supreme Court decision, Baker v. Nelson, wherein the Court summarily dismissed such a challenge for lack of a substantial federal question. However, in recent years, some courts have held that Supreme Court decisions subsequent to Baker—namely, Romer v. Evans, Lawrence v. Texas, and Windsor—have rendered Baker non-binding. These courts have thus considered whether state same-sex marriage bans violate the Fourteenth Amendment.
Under the Fourteenth Amendment's Equal Protection Clause, state action that classifies groups of individuals may be subject to heightened levels of judicial scrutiny, depending on the type of classification involved. State same-sex marriage bans have faced equal protection challenges because they classify individuals based on sexual orientation. Additionally, under the Fourteenth Amendment's substantive due process guarantees, state action that infringes upon a fundamental right—such as the right to marry—is subject to a high level of judicial scrutiny. State same-sex marriage bans have been challenged on the basis that they infringe upon the fundamental right to marry, which, it has been argued, incorporates the right to same-sex marriage.
Circuit courts are currently split regarding whether Baker precludes them from considering the constitutionality of state same-sex marriage bans, and whether such bans violate the Fourteenth Amendment. The Fourth, Seventh, Ninth, and Tenth Circuits have struck down state same-sex marriage bans after finding that Supreme Court decisions subsequent to Baker render that decision non-binding. In doing so, they have generally, though not uniformly, subjected state same-sex marriage bans to heightened levels of judicial scrutiny after finding that governmental classifications based on sexual orientation warrant increased scrutiny or finding that the fundamental right to marry includes the right to same-sex marriage.
The Sixth Circuit, on the other hand, held that Baker remains binding precedent that precluded its review of Fourteenth Amendment challenges to state same-sex marriage bans. The Sixth Circuit then went on to find that even if it could consider the constitutionality of such bans, it would subject them to the lowest level of judicial scrutiny and uphold them as constitutional. On January 16, 2015, the Supreme Court granted review of cases from the Sixth Circuit involving Fourteenth Amendment challenges to state same-sex marriage bans, with oral arguments scheduled for April 28, 2015. The Court seems poised not only to resolve the existing circuit split, but also to settle key questions about rights for gay people.