Monday, September 08, 2014

Beyond Levels of Scrutiny: Windsor and 'Bare Desire to Harm'

Andrew Koppelman

In United States v. Windsor, the Supreme Court left many people unsatisfied when it failed to identify the level of scrutiny to apply to laws that classify by sexual orientation. That question however was not even presented. The Defense of Marriage Act, which the Court invalidated in that case, makes no reference to sexual orientation, but it does speak of “man” and “woman.” It classifies on the basis of sex. Sex-based classifications are presumptively unconstitutional. The Court avoided this rationale for its result, probably because it did not want to reach the question of whether states could deny same-sex couples the right to marry.

The equal protection analysis upon which the Court did rely, the lesser-used “bare desire to harm” doctrine, had nothing to do with levels of scrutiny. It looked past that heuristic device to the underlying purposes of equal protection. This was a rare but appropriate response to an unusual kind of law, one that singles out a particular class and imposes an unprecedentedly broad disability upon it.

I elaborate on this argument in a paper forthcoming in Case Western Reserve Law Review, available on SSRN, here.

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