Now that same sex marriage is legal in all 50 states, I was wondering what the impact of this decision would be on laws that limit the abilities of same-sex couples to adopt children and other benefits.

Additionally, the U.S. Supreme Court did not set out the level of scrutiny to be used in determining discrimination against same-sex couples. How would the courts determine the level of scrutiny when deciding cases where same-sex couples are discriminated against? (e.g. the wedding cake issues?)

  • All law is an opinion of what will happen except in extreme cases, and even then it is not definite. That is how law is different than most other areas. In CS there is a quantifiable 'fastest' approach or in EE a specific circuit that gives a result. But in Law, nothing is set in stone. It is transitory; thus, always an opinion. The only other questions that could be asked are "what is the law in [state] regarding [topic]" in which case a simple google search would suffice.
    – Andrew
    Commented Jun 26, 2015 at 16:38
  • Level of scrutiny is about discrimination by the government; private discrimination is legal under the Constitution, so restrictions on it depend on statutes.
    – cpast
    Commented Jun 26, 2015 at 16:43
  • @cpast of course. But discrimination on adoptions would be by the State, so would other "benefits." I know the wedding cake issue might be a bit different, but a law that specifically allows it would be an act by the State. Private discrimination is legal, and has been held so many times; however, the wedding cake example would not be private, that is a corporation (presumably), consider entwinement / entanglement. But can you get a good enough class status from this case to raise the level of scrutiny.
    – Andrew
    Commented Jun 26, 2015 at 16:51
  • Corporations are still private; discrimination by companies on the basis of sexual orientation is private discrimination unless those companies are acting as state actors (i.e. they're behaving like quasi-governmental entities). A wedding cake maker is not a state actor, and can discriminate unless a statute says otherwise.
    – cpast
    Commented Jun 26, 2015 at 23:24
  • @cpast as I stated before, you have to consider entwinement, entanglement. Corporations can easily be made into State actors by more than just quasi-governmental entities. For instance, Burton v. Wilmington Parking Authority (a 'private' coffeehouse operating out of a building built partially with State funds). - i just re-read my last comment and realized I left a few words out... haha
    – Andrew
    Commented Jun 26, 2015 at 23:44

1 Answer 1


Chief Justice Roberts, dissenting, says (at p. 24):

The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits.

That indicates to me that there is probably a majority on the court that thinks same-sex couples should have the same adoption rights and other tangible benefits as opposite-sex couples, but that would have to be tested in court.

Regarding level-of-scrutiny, this opinion says nothing on the issue. But, given that Justice Kennedy follows a fundamental rights analysis, it could be argued that it is likely strict scrutiny, or at least a level of scrutiny higher than rational basis.

Vacco v. Quill, 521 U.S. 793 (1997), citing Romer v. Evans, 517 U. S. 620, 631 (1996) (emphasis added, internal punctuation removed):

If a legislative classification or distinction neither burdens a fundamental right nor targets a suspect class, we will uphold it so long as it bears a rational relation to some legitimate end.

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