Walter Dellinger has a good piece explaining concisely the legalese behind the standards of "heightened scrutiny" and "rational basis" and how it fits into the administration's decision to stop defending DOMA in court:
A few distinctions—notably race, religion, and gender—have been subject to heightened scrutiny by the courts. The reason for the courts treat such distinctions with skepticism is because they have each been (mis)used historically as a basis for legislation even though they are not good indicators of merit and have little relation to legitimate policy objectives. Such distinctions are often employed by legislatures because of bias or hostility against a group that has historically be subject to discrimination. Thus, judges are supposed to view these distinctions skeptically in order to identify instances in which such discriminations are based on bias rather than merit.
Jason Mazzone wrote shortly after the DOMA decision was announced that he thought the administration's argument for heightened scrutiny of laws regarding sexual orientation would fail, calling it a "gamble," because he didn't think there were five votes on the court for declaring a new "suspect class."
Rather than hew to the tiers-of-scrutiny framework and ask the courts to find a new suspect class, it is likely more fruitful to engage in an analysis of the government's interest in classifications based on sexual orientations and the burdens that result. As Judge Vaughn Walker's equal protection analysis in Perry v. Schwarzenegger (invalidating Prop 8) demonstrates, that sort of approach, basic to most constitutional litigation, can test the reasons for laws and governmental programs and shine light on prejudice that may have motivated them.
Law professors will remember the administration's legal arguments, but what most people will remember about this moment is that the administration aligned itself against the forces supporting discrimination against gays and lesbians. As Dellinger writes, Obama and Holder have "placed the executive branch of the government of the United States firmly behind the proposition that discrimination based on sexual orientation is wrong."
The real bet that the administration is making is that those opposing discrimination on the basis of sexual orientation are on the right side of history. That's hardly a gamble at all.
