By Kate Paine, Esq.
You’ll recall that the first and second DOMA blog posts ended with a question: under what circumstances may the government enact a law that discriminates against a particular group of people, given that, according to the Constitution, neither the federal nor state governments may “deny to any person within its jurisdiction the equal protection of the laws?”
Contrary to what may be a common assumption, “equal protection” does not mean that the government cannot create laws that discriminate against certain groups of people. Instead, the Supreme Court has interpreted this language as meaning that the government may discriminate, as long as it can sufficiently “justify” the different treatment. What constitutes “sufficient” justification in a particular situation depends on how deeply the court dissects (or “scrutinizes”) the government’s reason(s) for enacting a discriminatory law. In turn, whether the court will essentially take, at face value, the government’s rationale(s) for the different treatment, or whether the court will instead engage in a deeper analysis to determine if the government’s rationale is sufficiently important to justify discriminating against a certain group, depends on the identity of group treated differently. In legal speak, this concept is referred to as the “level of scrutiny” the court applies when assessing the constitutionality of a discriminatory law.
Although courts sometimes discuss three levels of scrutiny, in the DOMA context, courts have applied only two levels, known as “heightened scrutiny” and “rational basis review.” Generally speaking, heightened scrutiny applies when the class of people being discriminated against is deemed a “suspect” class (race is a suspect class) or a “quasi-suspect” class (sex is a quasi-suspect class). To determine whether a group of people with a common characteristic qualifies as suspect/quasi-suspect, a court considers four factors: 1) whether there is a history of discrimination against the group; 2) whether the characteristic that distinguishes the class indicates a typical class member’s ability to contribute to society; 3) whether the distinguishing character is “immutable” (beyond an individual’s control); and 4) the political power of the class. The court will weigh the degree of presence (or absence) of each of these factors in deciding whether heightened scrutiny, rather than rational basis review, applies.
If the court determines heightened scrutiny applies to the class of people against whom the law discriminates – for example, if the law treats people differently based on their race or sex – the law will be upheld as constitutional only if the reason for treating one group differently is substantially related to an important government interest. This means that the government not only needs at least one actual, on-the-record interest to justify enacting a law that treats people differently based on their race, sex, or other “protected” characteristic, that interest must also be deemed “important.” Furthermore, the differential treatment must be substantially related to actually achieving that important interest. For example, according to the Supreme Court, although increasing traffic safety by preventing drunk driving is indeed an important governmental interest, a law that sets the drinking age for men at twenty-one and for women at eighteen is not substantially related to achieving that interest, and thus does not survive heightened scrutiny.
On the other hand, if the class of people a law treats differently does not qualify as “suspect” or “quasi-suspect,” the court will instead use the deferential rational basis standard of review to determine if the law is constitutional. Under rational basis review, the law will be upheld so long as the discriminatory treatment is rationally (i.e. somehow) related to achieving a “legitimate” goal, even if that goal is hypothetical and conceived after the law was enacted. Although a law is not automatically upheld as constitutional under rational basis review, it is rare that a court finds no conceivable basis for the differential treatment, or finds that, even if there is a conceivable goal, treating people differently will not achieve that goal. Clearly, then, the level of scrutiny the court applies plays a crucial role in determining whether the statute violates the constitution.
Come back tomorrow to find out which level of scrutiny courts have applied when assessing laws that discriminate based on sexual orientation.