The Stronger Argument against DOMA

Today, the Second Circuit Court of Appeals struck down a major part of the Defense of Marriage Act (DOMA). Since DOMA had already been held unconstitutional by the First Circuit, on one level this doesn't change anything, since the case was almost certainly headed to the Supreme Court anyway. But today's opinion is important because the theory underlying the court's holding goes much further than the First Circuit did.

The Supreme Court has developed a three-pronged approach to applying the equal protection clause of the Fourteenth Amendment. Under this framework, racial classifications have been held to require "strict scrutiny," under which the classification is constitutional only if necessary to achieve a compelling state objective. Most classifications require merely "rational basis" scrutiny—that is, the state only has to show that a classification bears any plausible rational relationship to a legitimate state interest. In practice, laws rarely survive strict scrutiny and rarely fail to survive rational basis analysis. Gender classifications are subjected to an intermediate level of heightened scrutiny that requires more justification than rational basis but less than strict scrutiny.

As of now, sexual orientation is, at least nominally, a "rational basis" category, and the First Circuit opinion found that DOMA was unconstitutional under that standard. Today's opinion, conversely, holds that sexual orientation is properly subject to intermediate scrutiny. Based on the logic of a key Supreme Court case rejecting a claim that classifications based on mental retardation should be subject to heightened scrutiny, the opinion written by Judge Dennis Jacobs found that sexual orientation met the standards for heightened scrutiny established by the Supreme Court's own precedents. Jacobs found that all four factors typically used by the Court "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.

On the merits, I believe that Jacobs in right, and his argument on behalf of holding sexual orientation classifications to heightened scrutiny is powerful and persuasive. Whether this means that the Supreme Court will accept his reasoning is less clear. Jacobs is correct that when the Supreme Court claimed that it was merely applying rational basis in striking down a Colorado anti-LBGT constitutional amendment in 1996, it was being somewhat disingenuous.  Jacobs makes a good case that holding DOMA to intermediate scrutiny is not inconsistent with the Supreme Court's precedents. On the other hand, Justice Kennedy—who wrote the 1996 opinion—remains the swing vote, and is therefore likely to be more responsive to the logic of the First Circuit.

Section three of DOMA will probably be struck down by the Supreme Court no matter what standards are used. Like two of the First Circuit judges who ruled against DOMA, Jacobs is a conservative Republican, showing again how hard it is to make a constitutional argument in favor of that discredited statute.

The Second Circuit has provided a well-written opinion inviting the Supreme Court to give gays and lesbians the constitutional protections they deserve. It will be interesting to see if a majority of the Court accepts the invitation.

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