an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Windsor v. United States: The Second Circuit Strikes Down DOMA and Says Intermediate Scrutiny is Proper Test
On October 18, 2012, in Windsor v. United States, the United States Court of Appeals for the Second Circuit became the second federal court of appeals to strike down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. However, it was the first federal appellate court to do so using a heightened standard of review, in an opinion authored by Chief Judge Dennis Jacobs, appointed to the bench by Republican president George H.W. Bush. Experts on the United States Supreme Court are busy sorting out what will happen next and which DOMA case the Court will likely take up for review, now that petitions for certioriari are pending in several cases. However, the Second Circuit opinion deserves attention even apart from how it will fare in those sweepstakes.
In concluding that heightened scrutiny is the proper standard of review when considering DOMA because homosexuals are a quasi-suspect classification, the Second Circuit took the step that the Department of Justice urged back in February 2011, when Eric Holder informed Congress that the DOJ would not defend Section 3 of DOMA in Windsor. Holder observed that the Second Circuit had not yet resolved the relevant standard of review for classifications involving homosexuality, that the DOJ had concluded intermediate scrutiny was proper, and that Section 3 could not survive that test.
On June 15, 2012, the federal district court in Windsor declined to follow that route, observing that (as I wrote about in a prior blog) "eleven Courts of Appeals" had "applied the rational basis test to legislation that classifies on the basis of sexual orientation." The court's ruling took cues from the First Circuit’s DOMA ruling, applying rational basis review as informed by the "pattern" evident in the Equal Protection trio of Romer v. Evans,City of Cleburne v. Cleburne, and U.S. Department of Agriculture v. Moreno. That pattern, the First Circuit observed, was to apply more careful or "intensified" scrutiny when laws exhibit a "desire to harm a politically unpopular group." Section 3 of DOMA, the Windsor district court similarly concluded, could not survive that test. A key plank in the First Circuit’s analysis was that Romer and Lawrence v. Texas (2003) signaled that the Supreme Court would likely apply more than deferential rational basis if it took up DOMA’s constitutionality.
The Second Circuit acknowledged the First Circuit’s reasoning for not adopting heightened scrutiny, but declined to follow it. It did not read Romer as implying the Court’s "refusal to recognize homosexuals as a quasi-suspect class," since litigants did not press that issue before the Supreme Court. Instead, it concludes, like the DOJ, that, henceforth, classifications based on sexual orientation should be subjected to intermediate scrutiny: they must be "substantially related to an important governmental interest." What’s more, the Second Circuit draws on two famous sex-based discrimination cases to explain that "substantially related" means that government’s explanation must be "exceedingly persuasive" (citing U.S. v. Virginia (1996) and Mississippi University for Women v. Hogan (1982)).
The Second Circuit bypassed the question of whether Section 3 of DOMA survived rational basis review (one judge argued in dissent that it did). Instead, it applied the four factors that the Supreme Court has used to decide whether a new classification qualifies as suspect or quasi-suspect. It readily found that sexual orientation qualified. On history of discrimination, the first factor, it noted that Lawrence recounted how criminal laws punishing homosexual conduct "demeaned" homosexuals’ existence and controlled their destiny. On the second, relation to ability (to contribute), it utilized Frontiero v. Richardson, a sex-based discrimination case, for the point that the characteristic singled out in the legislation "frequently bears no relation to ability to perform or contribute to society."
The Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) argued that the third characteristic, that the group have a distinguishing characteristic, sometimes couched as "immutability," did not apply because sexual orientation is "not necessarily fixed," but can "range along a continuum." (Who knew members of Congress read Adrienne Rich!) However, the Second Court explained that the critical point was "whether the characteristic of the class calls down discrimination when it is manifest." In this case, that occurs "when a surviving spouse of a same-sex marriage [Windsor] seeks the benefit of the [federal] spousal deduction." In other words, married same-sex couples experience discrimination under Section 3 of DOMA when the federal government refuses to recognize their marriages.
Finally, on the fourth factor, political powerlessness, the Second Circuit invokes Frontiero to conclude that even if a group (like women) wins some political victories, it does not mean they may not be powerless for purposes of heightened protection, especially if they are under- represented in positions of power and authority. Noting the risks to gay men and lesbians from identifying their sexual preference publicly, the court concluded that "homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public."
Applying the intermediate scrutiny test, the Second Court finds that the arguments offered by BLAG for Section 3 of DOMA fail. Indeed, Chief Judge Jacobs observes that "at argument, BLAG’s counsel all but conceded that these reasons for enacting DOMA may not withstand intermediate scrutiny." First, BLAG argued there was a "unique federal interest" in maintaining a "consistent federal definition of marriage." However, the court properly concluded that this emphasis on uniformity was "suspicious" and deserved a "cold eye" cast upon it given the historical and continuing deference by Congress and the Supreme Court to "state domestic relations laws, irrespective of variations." The court finds support in a friend of the court brief filed by family law professors explaining that DOMA "left standing all other inconsistences in the laws of the states, such as minimum age, consanguinity, divorce, and paternity." The court invokes Romer in scrutinizing this uniformity claim: "discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." Section 3's "unprecedented breach" of deference to federalism when it comes to state marriage law fails the "exceedingly persuasive justification" test.
BLAG’s other rationales also failed the intermediate scrutiny test. For example, "preserving traditional marriage as an institution" cannot suffice. Lawrence, striking down a sodomy law but analogizing to antimiscegenation laws, explained that appeals to history or tradition alone can’t save a law. But even if preserving marriage were an "important goal," Section 3 does not do so since it leaves it to states to define who may marry. Finally, the Second Circuit rejected two arguments that are staples in BLAG’s briefs: DOMA advances responsible procreation and provides an optimal parenting setting. The court concluded that promoting procreation may be important, but DOMA is not substantially related to that goal. Like the First Circuit, it concluded that DOMA does not provide any "incentives for heterosexual couples" – any "incremental reason" for them to engage in "responsible procreation."
Whether the First or Second Circuit has a better read on what the Supreme Court would likely conclude about the proper standard of review for DOMA, in light of Romer,Lawrence, and legal and social developments in the last few decades, is a topic for another day. The ACLU, representing Edith Windsor, released a statement praising the Second Circuit’s reasoning, noting that, if the Supreme Court also adopts a heightened scrutiny standard, it will "revolutionize" gay rights litigation. Meanwhile, Edith Windsor, at a press conference, said she was "thrilled" with the ruling, recounting that it was "so offensive" to her that the federal government regarded her deceased spouse, Thea Spyer – her life partner for 44 years – as a "stranger in my life."
Finally, worth mentioning – apart from its standard of review ruling – is the Second Circuit’s closing observation about the critical distinction between civil and religious marriage – a distinction I have argued is vital to the marriage equality issue: "Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status – however fundamental – and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door." (By the way, what religious institutions are performing marriages on Pearl Street?)
UPDATE: On Friday, October 26, the Solicitor General Donald Verrilli, Jr. filed a brief urging the Supreme Court that Windsor is the "most appropriate vehicle" for reviewing the constitutionality of Section 3 of DOMA. I have posted, on October 31, an analysis of that brief. Posted
by Linda McClain [link]