By Kate Paine, Esq.
Unlike with race and gender, the United States Supreme Court has never explicitly stated whether “sexual orientation” is a suspect/quasi-suspect class. Because the Supreme Court has not decided the issue, individual courts must determine, based on the four factors mentioned in previous posts, whether sexual orientation is a suspect/quasi-suspect class, such that heightened scrutiny applies when assessing the constitutionality of Section 3 of DOMA. Until recently, most, if not all, courts reviewing the issue applied rational basis review. Most of these courts upheld Section 3’s constitutionality under rational basis review on the basis that limiting the definition of “marriage” to opposite-sex marriages was rationally related to achieving several legitimate government interests. Notably, however, a few did find that, even under rational basis scrutiny, Section 3 unconstitutionally discriminates against lawfully-married same-sex couples.
As mentioned, President Obama’s view is that Section 3 of DOMA is unconstitutional. Even more importantly, the President has determined that laws that base different treatment on sexual orientation are subject to heightened scrutiny, not rational basis review. Although he did not explicitly say that sexual orientation is a suspect or quasi-suspect class, he implied as much by finding that: 1) there exists a significant history of purposeful discrimination against gays and lesbians, by both governmental and private entities; 2) there is a growing scientific consensus that sexual orientation is a characteristic that is not capable or susceptible to change; 3) the group has limited political power and ability to attract the favorable attention of lawmakers; and 4) there is a growing acknowledgement that one’s sexual orientation bears absolutely no relation to his or her ability to perform in or contribute to society. Because, according to the President, Section 3 cannot survive heightened scrutiny, it is unconstitutional as applied to legally-married same-sex couples. As a result, the Attorney General made the highly unusual announcement that the Department of Justice (whose job it is to defend the constitutionality of federal laws in lawsuits) would no longer defend Section 3.
Nevertheless, the House of Representatives’ Bipartisan Legal Advisory Group (which is Republican-led) has been permitted to intervene to defend the constitutionality of DOMA. The President’s determination, as expressed in the Attorney General’s letter, is thus crucial in that it provides courts a framework (and, possibly, an incentive) to analyze the issue under heightened scrutiny, rather than under rational basis review. Indeed, after the Attorney General’s pronouncement, at least a few courts, quoting from the letter, have agreed with the President that laws that discriminate based on sexual orientation, like Section 3 of DOMA, are subject to heightened scrutiny, and that, under heightened scrutiny, Section 3 is unconstitutional. Still, because no court is bound by the President’s determination, some courts will likely continue using rational basis review to find Section 3 constitutional, unless and until the United States Supreme Court definitively sets the level of scrutiny for assessing the constitutionality of laws that discriminate based on sexual orientation.
Now that you (hopefully) understand the basics of how a court determines whether a discriminatory law is constitutional, many of you are probably still wondering what legitimate governmental interests could possibly be served by limiting the federal definition of marriage to only those between one man and one woman. The answer to that question deserves a post all its own, so stay tuned!
As always, please feel free to leave a comment with any thoughts, questions, or suggestions you had while reading this post.