This past Tuesday, October 16, the United States Court of Appeals for the 2nd Circuit held the Defense of Marriage Act (DOMA) unconstitutional. Windsor v. United States joins a growing number of federal court decisions invalidating DOMA on equal protection grounds. What separates Windsor from the streak of decisions striking down the law is this: it’s the first time a U.S. Court of Appeals has held that the proper standard of scrutiny for discrimination on the basis of sexual orientation is intermediate scrutiny rather than rational basis review.
A number of constitutional challenges to DOMA have made their way to the federal courts, including Pederson v. Office of Personnel Management, Gill v. Office of Personnel Management, and Golinski v. Office of Personnel Management. These cases, like Windsor, have challenged the constitutionality of Section 3 of DOMA, which provides that marriage is defined as “only a legal union between one man and one woman as husband and wife.” In these challenges, the federal courts have applied rational basis review, which provides that a law must have a rational relationship to a legitimate government interest. Rational basis is applied when the government’s classification does not involve fundamental rights or a suspect class. “Intermediate scrutiny” means that the law’s classification must be “substantially related to an important government interest.”
In Gill, the plaintiffs challenging DOMA argued that strict scrutiny ought to apply. While the U.S. District Court for the District of Massachusetts declined to find for plaintiffs under strict scrutiny, it found DOMA unconstitutional under rational basis review. On appeal, as Massachusetts v. U.S. Dept. of Health and Human Services, the U.S. Court of Appeals for the 1st Circuit affirmed the district court’s decision also on the basis of rational review. In Pederson, the U.S. District Court for the District of Connecticut held that classification on the basis of sexual orientation ought to receive heightened scrutiny, but that it is unnecessary since DOMA’s Section 3 cannot survive the less exacting standard of rational basis review. Similarly, the United States District Court for the Northern District of California used heightened scrutiny to invalidate DOMA in Golinski. But the court there made sure to include argument showing that DOMA also fails rational basis review.
In Windsor, the 2nd Circuit concluded that classification on the basis of sexual orientation is quasi-suspect because homosexuals have historically been subject to discrimination, sexual orientation has no bearing on ability to perform or contribute to society, sexual orientation is a distinguishing characteristic that leads to discrimination, and homosexuals, while continuing to make political gains, do not have sufficient power to protect themselves from wrongful discrimination. Having determined that heightened scrutiny is the appropriate standard, the court then found that Section 3 of DOMA failed this test of constitutionality.
The Supreme Court has yet to speak on the proper standard of review for classification based on sexual orientation. But that may soon change. The Pederson plaintiffs have petitioned the Supreme Court, and so has the government in both Gill and Golinski. The government may yet petition for certiorari in Windsor. Applying heightened scrutiny to sexual orientation discrimination claims is critical, and the implications of the Second Circuit’s holding might extend beyond DOMA, such as cases involving housing or employment discrimination.
For more information, see Gay & Lesbian Advocates & Defenders and the New York Times.