united-states us-supreme-court marriage first-impression
Obergefell and its implications on other family rights
<p>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.</p>

<p>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?)</p>

<p>Chief Justice Roberts, dissenting, says (<a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf" rel="nofollow">at p. 24</a>):</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>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.</p>

<p>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.</p>

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

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