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.

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