Balkinization  

Tuesday, March 01, 2011

DOMA: The Politics of Scrutiny

Jason Mazzone

As I have discussed in previous posts (here and here), the Obama administration takes the position (and will argue in the Second Circuit) that classifications based on sexual orientation should be subject to heightened or intermediate scrutiny, under which the government must establish that the classification is substantially related to an important government objective. The administration does not, then, take the position that strict scrutiny should apply, under which the government would have to establish that the classification is narrowly tailored to a compelling government interest. Why does the administration endorse intermediate but not strict scrutiny?

In his letter to Speaker Boehner explaining the administration's new position, Attorney General Holder discussed the history of prejudice against gays and lesbians, the immutability of sexual orientation, the irrelevance of sexual orientation to an individual's ability to contribute to society, and the relative powerless of gays and lesbians in the political arena. In putting forth these justifications for intermediate scrutiny, Holder drew upon Supreme Court decisions that "set forth the criteria that should inform . . . any . . . judgment as to whether heightened scrutiny applies." Holder cited in this respect two case. The first is Bowen v. Gillard (1987). Bowen, however, involved a discussion of factors relevant to both strict scrutiny and heightened scrutiny and the case on which Bowen itself relied in articulating the relevant considerations, Massachusetts Board of Retirement v. Murgia (1976), involved a question of strict scrutiny. Holder also cited in his letter City of Cleburne v. Cleburne Living Center (1985) but the Court's discussion in that case of at least two of the factors upon which Holder relies to justify intermediate scrutiny (prejudice and the failure of the political process) came in the context of the Court's explaining the reasons for adopting in certain circumstances strict (not intermediate) scrutiny. Despite Holder's discussion of these precedents, they do not provide clear guideposts for choosing between intermediate or strict scrutiny as the appropriate level of review with respect to sexual orientation.

Perhaps the administration concluded that it would be easier to persuade a court to go with intermediate rather than strict scrutiny for sexual orientation. That might be a reasonable guess. But it requires, inevitably, thinking about how sexual orientation classifications relate to gender classifications (the only status besides illegitimacy that is subject to intermediate scrutiny). Holder's letter does not address that issue.

And thus another explanation for the administration's choice seems unavoidable: the administration picked the level of scrutiny least likely to alienate Black voters. Numerous polls demonstrate that Blacks constitute the ethnic group least likely to support same-sex marriage and by a significant margin (though perhaps as Obama's thinking "evolves" on same-sex marriage, other Black voters might change their minds as well). For many years, (certain) Black commentators have expressed offense at any comparison between racial prejudice and discrimination on the basis of sexual orientation. In particular, comparisons between bans on same-sex marriage and anti-miscegenation laws have drawn sharp criticisms. It follows that Blacks will be the least likely group to accept the administration's argument for special constitutional protections for gays and lesbians--especially when it comes to same-sex marriage.

So the administration is playing to both sides: recognizing the need for stronger protections for gays and lesbians while leaving race as a special category that deserves the strongest judicial protections. In this way, the administration can avoid (or try to avoid) any need to argue that the prejudice underlying the historical bans on interracial marriage has a contemporary manifestation.

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