DOMA Update: Why Two Courts Found Section 3 Unconstitutional

By Kate Paine, Esq.

Since writing my last post, two more courts  have had to determine which standard of review to apply in deciding a challenge to Section 3’s constitutionality (the First Circuit Court of Appeals and the District Court for the Southern District of New York).

As I predicted, neither court viewed as authoritative President Obama’s determination that sexual orientation is a suspect class. Consequently, instead of applying heightened scrutiny, they used rational basis review, albeit “a more searching form of rational basis review,” sometimes referred to as “rational basis review with bite.” Essentially, this is when, although the court does not apply heightened scrutiny – because the law does not affect a class that has been deemed “suspect” – the court does take a closer look at the potential justifications because the law discriminates against a historically disadvantaged/politically unpopular group.

Applying rational basis “with bite,” the courts determined that Section 3 is unconstitutional because no legitimate Congressional interest – whether documented or hypothetical – can actually be served by excluding same-sex couples who are legally married from receiving the same federal benefits as opposite-sex married couples.

In reaching this determination, the courts chiefly evaluated four “governmental interests”: 

  1. defending and nurturing the institution of traditional, heterosexual marriage
  2. promoting the “ideal” family structure for having and raising children
  3. defending traditional notions of morality
  4. preserving scarce government resources

With respect to the first and second interests, the courts determined that, whetherDOMA, Same Sex Marriage, Laws legitimate interests or not, excluding same-sex couples who are already married from receiving federal benefits in no way defends heterosexual marriage or promotes parenting by married, opposite-sex couples. Regarding the second rationale, the courts noted that, although defending morality may once have been viewed as a legitimate interest, cases decided in the past twenty years have established that moral disapproval, on its own, is not a sufficient ground for discriminating.

The courts disposed of the third rationale, preserving scarce government resources, on the basis that Section 3 does not serve this interest, as recent studies show that DOMA is more likely to actually deprive the government of revenue.

Clearly, the result reached in these cases was positive: Section 3 was declared unconstitutional. When it has the opportunity, hopefully the United States Supreme Court will reach the same result. However the true victory in the battle against laws that discriminate based on sexual orientation will be a simultaneous determination by the Supreme Court that sexual orientation is a suspect class afforded extra protection against discriminatory laws.