DOMA Series, Part 3: What Does “Equal Protection” Mean?

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.

DOMA Series, Part 2: Obama Spoke, Now What?

By Kate Paine, Esq.

It was an exciting moment for those seeking marriage equality for same-sex couples when, on May 9, 2012, President Barack Obama announced that he believes same-sex couples should be able to marry. Although the President’s evolved stance on same-sex marriage is indeed an extraordinary symbolic victory for marriage equality, at the moment, his views unfortunately have no direct legal effect on the issue of same-sex marriage (apart from essentially guaranteeing that the President will sign a congressional bill repealing DOMA, should one make its way to his desk).

The President’s statement came only one day after North Carolina voters approved a state constitutional amendment banning same-sex marriage. This highlights the fact that, even if Congress were to enact (and the President to sign into law) a bill repealing Section 3 of the federal Defense of Marriage Act (the provision limiting marriage for federal purposes to those unions between one man and one woman), this would serve only to afford same-sex couples legally married in a state or in another country equal treatment under federal laws that condition rights and responsibilities on marital status; it would have no effect on a state’s ability to define marriage for its own citizens. And, in fact, the large majority of states have enacted their own version of DOMA or passed a constitutional amendment banning same-sex marriage. As was the case with marriage between blacks and whites forty-five years ago, only a declaration by the United States Supreme Court that laws and constitutional amendments forbidding same-sex marriage violates the United States Constitution will ensure that every person can legally marry an individual of the same sex and have that marriage recognized by both the federal government and other state governments.

For this reason, more significant than the President openly supporting same-sex marriage is the fact that, last February, the United States Attorney General (the chief lawyer for the U.S. government) sent a letter to the members of Congress informing them President Obama had determined that Section 3 of DOMA violates the equal protection component of the Fifth Amendment, as applied to legally married same-sex couples. (Read the letter here.) What this means, exactly, is precisely where tomorrow’s post will pick up.