Intermediate Scrutiny - Sexual Orientation

Sexual Orientation

Courts have been reluctant to apply intermediate scrutiny to cases centered around sexual orientation. For instance, in Romer v. Evans 517 US 620 (1996), which struck down an amendment to the Colorado Constitution that invalidated legal protections based on sexual orientation, the United States Supreme Court held that the amendment violated the Equal Protection Clause because the amendment was motivated by a bare desire to harm a politically unpopular group, which is never a legitimate governmental interest. In a more recent case, Lawrence v. Texas, 539 US 558 (2003), the Court struck down anti-sodomy laws as unconstitutional, explicitly overturning its earlier Bowers v. Hardwick 478 U.S. 186 (1986) decision, but did not specify the level of scrutiny it applied. In Lofton v. Secretary of the Department of Children & Family Services, 358 F.3d 804 (11th Cir. 2004), the United States Court of Appeals for the Eleventh Circuit explicitly held that Lawrence did not apply strict scrutiny. However, in 2008, the California Supreme Court, In re Marriage Cases, held that statutes that discriminate on the basis of sexual orientation should be subject to strict scrutiny under state constitutional law (not federal law). On October 18, 2012, the Second Circuit Court of Appeals became the first federal appeals court, in Windsor v. United States, to hold that laws that classify people based on sexual orientation should be subject to intermediate scrutiny.