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Oct 19 2012

Appeals Court Applies Heightened Scrutiny in DOMA Case

The 2nd Circuit Court of Appeals has upheld a district court ruling that declared the Defense of Marriage Act to be unconstitutional, but most importantly the ruling explicitly applies heightened scrutiny to the law, something that other courts have so far declined to do. You can read the full ruling here.

The level of scrutiny applied by the courts is extremely important in deciding the outcome of a case because it determines how high the bar must be for the state to establish the constitutionality of the law being challenged. There are three basic levels: Strict scrutiny, heightened or intermediate scrutiny, and the rational basis test. If the court applies the rational basis test, the bar is very low; the state must only establish that the law being challenged is “rationally related” to a legitimate state interest. If the court applies the strict scrutiny test, then the state must show that the law being challenged is the “least restrictive means” of achieving a “compelling state interest,” which is much more difficult to do. Heightened or intermediate scrutiny falls somewhere in between, requiring the state to show that the law being challenged “furthers an important government interest in a way that is substantially related to that interest” (there also may be a technical distinction between heightened scrutiny and intermediate scrutiny, but that’s probably too much detail for the purposes of this post).

So how does a court decide which level of scrutiny to apply? The default is the rational basis test, but intermediate or strict scrutiny can be triggered if the plaintiff in the case is a member of a suspect or quasi-suspect class or when it involves a “fundamental right” (as opposed to a “mere liberty interest” — all of these are legal terms of art) or a specifically enumerated right. A suspect or quasi-suspect class is, in essence, one that has been historically discriminated against. You can see the court’s reasoning here in this passage from the ruling:

[W]e conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,”; B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and D) whether the class is “a minority or politically powerless.” Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

Why is this important? Because the Supreme Court has never declared sexual orientation to be a suspect class that warrants either intermediate (heightened) or strict scrutiny. Even in the cases where the Supreme Court has come down strongly on the side of gay rights, like Lawrence v Texas (overturned state sodomy laws) and Romer v Evans (overturned a law banning anti-discrimination laws based on sexual orientation), they have only applied the rational basis test. But sexual orientation clearly does fit the criteria the court has laid out for considering it to be a suspect class, as the appeals court above notes.

The question is, will the Supreme Court uphold this ruling, which is certain to be appealed and likely to be heard by the court? There are four clear votes to do so and four clear votes against it, with Justice Kennedy, as usual, in the middle. He was the author of both of the decisions mentioned above, so he has a strong record on equal rights for LGBT people. But in both of those cases, he stopped short of declaring them a suspect class and applying a higher level of scrutiny. There are three basic options for him:

1. Uphold the constitutionality of DOMA.
2. Declare sexual orientation to be a suspect class, apply heightened review and strike down DOMA.
3. Apply rational basis review but still strike down DOMA.

The third one is the option he took in the two previous cases, though he hinted at the 2nd possibility while stopping short of actually doing so. Option 3 would be a good result; option 2 would be a great result, because it would require lower courts to always apply heightened review in cases involving laws that impact on the LGBT community. And that would likely lead to a lot of important gay rights rulings in other cases in the future.

Currently, Supreme Court precedent requires strict scrutiny in cases involving race, skin color, ethnicity, religion or national origin, and requires heightened or intermediate scrutiny in cases involving gender and illegitimacy (and free speech, but that’s a different type of legal question). All of this is based on the infamous Carolene footnote (footnote 4 from a 1938 case called United States v Carolene Products). And this has been your con law geek post of the day.

13 comments

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  1. 1
    Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    Awesome, Ed. This is a great description of what was going on in the decision and why it was important.

    Geek out all you want, I’ll always read it.

  2. 2
    Michael Heath

    What’s so frustrating when reading this sort of post is how frickin’ obvious it is that LGBT meet the criteria which requires the court to at least apply heightened scrutiny.

    It would require fierce denialism to argue they don’t meet such criteria. Therefore the reasonable person begins to consider what motivations are in play for the justices to deny the suffering LGBTs suffer within our culture and who drives those motivations and why. I think this forum’s readers already know the answer to these rhetorical ponderings.

  3. 3
    AsqJames

    Good news with the potential for better to come from it.

    Mind if I ask for some clarification on one point?

    requires heightened or intermediate scrutiny in cases involving (…) illegitimacy

    Illegitimacy as in “born out of wedlock”? Surely that word means something else in this context, but if it doesn’t, how did the court satisfy condition C: whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;”

    I couldn’t tell a bastard from an orphan from a test-tube baby.

  4. 4
    AsqJames

    Ah, did I fail to consider the mother? Is it about being able to discriminate against women getting pregnant outside of marriage?

  5. 5
    gshelley

    Has Roberts ever said anything on the subject, or voted in a case that could be related? I can see there are three judges who will grasp any excuse to hold laws advocating anti-gay bigotry, but I am not convinced Roberts is a fourth.

  6. 6
    Ed Brayton

    AsqJames wrote:

    Illegitimacy as in “born out of wedlock”?

    Yes, exactly that. It was a particular case in which the court applied heightened scrutiny in a law affecting illegitimate children. It isn’t particularly relevant anymore, it was just one case a long time ago.

  7. 7
    thalwen

    Courts generally don’t like to apply a heightened standard if they don’t have to because there’s added controversy and a higher risk of reversal. While it is clearly appropriate to apply a heightened standard to LGBT cases, it might not happen with DOMA because DOMA is so clearly unconstitutional on a rational basis level.

  8. 8
    AsqJames

    Thanks Ed.

    To my mind that makes it even more incomprehensible that the courts have not previously recognised the criteria apply at least as well to LGBT people.

  9. 9
    eric

    Hrm, maybe I’m missing something, but I’d think the most likely SCOTUS option will be:

    4 – decline to hear the case, and so uphold it without actually saying anything about it.

  10. 10
    subbie

    When reading the opinion, I got the strong impression that part of the reason they used intermediate scrutiny was to avoid the holding in Baker v. Minnesota. They were able to get around Baker by pointing out that intermediate scrutiny wasn’t part of the Court’s lexicon back in 1971, so Baker was distinguishable.

  11. 11
    John Pieret

    Late to the party but …

    I love it that the dissent begins “Forty years ago, the United States Supreme Court was presented with the essentially identical challenge we have here.” The dissenter goes on to talk about a DOMA-like state law that was appealed to SCOTUS, which refused to hear it. A more relevant precedent was 45 years ago: Loving v. Virginia, where SCOTUS said:

    Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

    What could be a more unsupportable basis to deny marriage than who it is that you happen to love?

  12. 12
    thomwatson

    @subbie #10

    When reading the opinion, I got the strong impression that part of the reason they used intermediate scrutiny was to avoid the holding in Baker v. Minnesota. They were able to get around Baker by pointing out that intermediate scrutiny wasn’t part of the Court’s lexicon back in 1971, so Baker was distinguishable.

    I had a very different take-away from the opinion regarding the applicability of Baker. My sense was that the Second Circuit (and other courts that have addressed Baker in this same context) felt that Baker can easily be dismissed as a controlling case even without having to resort to intermediate scrutiny since Baker dealt with a different issue, i.e., whether there is a right to same-sex marriage. Section 3 of DOMA — which is all that is being challenged — does not ask whether a state has to recognize a same-sex marriage; it is predicated, in fact, on the recognition that states have the right to grant same-sex marriage rights or not, and deals with the separate issue — not addressed in Baker — of whether the federal government may choose to ignore marriages validly recognized by a state. I think it’s a reasonable distinction to suggest that an opinion regarding what a state is required to do is not binding when determining what the federal government is permitted to do.

  13. 13
    thomwatson

    Sorry about not closing the blockquote in the previous comment. Only the first paragraph is quoted; the second is my response.

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