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.
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.