The Court of Appeals has ruled that the Defense of Marriage Act is unconstitutional, applying intermediate scrutiny in holding that the law cannot be applied against a lesbian who wanted a spousal deduction for her federal estate taxes after the death of her partner. This case makes it harder for the government to justify laws that discriminate against gays and lesbians.
The case is Windsor v. United States, decided on October 18. This is an important case. Anytime a federal court overturns a federal statute as unconstitutional, it's news. When the court applies heightened review in analyzing discrimination against same-sex couples, it's even bigger news because the court is staking out new ground. And when the judge writing the decision is one of the most conservative jurists on the court, well, that's big news also.
Enacted in 1996, the Defense of Marriage Act (DOMA) defines marriage as one-man/one-woman. This means that same-sex couples do not gain the same financial benefits as male-female marriages. For the plaintiff in this case, that meant that, after her partner died, she was denied the benefit of the spousal deduction for federal estate taxes in the amount of $363,000. The question is whether DOMA violates the Equal Protection Clause. It does, and DOMA is struck down.
Here is how equal protection claims work. Most federal laws do not violate the Equal Protection Clause so long as the legislature had any reasonable basis to pass the law, even if it distinguishes between different classes of people. All laws favor someone or something over something else, so "rational basis" review means that the legislature can do whatever it wants. Except that it cannot discriminate against women. Distinctions on the basis of gender are reviewed under "intermediate scrutiny," requiring the government to show that the male-female distinction is substantially related to an important governmental interest. Many laws fail under intermediate scrutiny, but that standard of review does give the government some leeway in favoring men over women (or vice versa) is there is a strong reason for doing so. Distinctions on the basis of race or national origin are reviewed under "strict scrutiny," which requires the government to justify the racial distinction through a compelling reason. Almost nothing survives strict scrutiny.
What's the standard of review for discrimination against gays and lesbians? The Supreme Court has never taken on that issue. The Second Circuit has, in this case for the first time. It applies intermediate scrutiny. True, as Judge Jacobs notes, "the law was passed by overwhelming bipartisan majorities in both houses of Congress; it has varying impact on more than a thousand federal laws; and the definition of marriage it affirms has been long-supported and encouraged." But that does not matter under heightened judicial review.
The Second Circuit summarizes the multi-part test for determining whether a class of people are entitled to heightened judicial review when they claim discrimination under the Equal Protection Clause: "The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically 'subjected to discrimination'; B) whether the class has a defining characteristic that 'frequently bears [a] relation to ability to perform or contribute to society'; C)
whether the class exhibits 'obvious, immutable, or distinguishing characteristics that define them as a
discrete group'; and D) whether the class is 'a minority or politically powerless.' Immutability and lack of political power are not strictly necessary factors to identify a suspect class.”
By the way, if you are a non-lawyer trying to understand how this all works, this is what it's like to be in law school. Anyway, gays and lesbians satisfy this test and are quasi-suspect classes in the Second Circuit, which means that discrimination against gays and lesbians are easier to challenge in court. The Court of Appeals concludes, "In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority."
The first factor is not a close call: "It is easy to conclude that homosexuals have suffered a history of discrimination. ... Perhaps the most telling proof of animus and discrimination against homosexuals in this country is that, for many years and in many states, homosexual conduct was criminal." In addition, under the second factor, "homosexuality bears no relation to any ability to perform or contribute to society. "There are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual's ability to contribute to society, at least in some respect. But homosexuality is not one of them. The aversion homosexuals experience has nothing to do with aptitude or performance." Under the third factor, the Court finds that "homosexuality is a sufficiently discernible characteristic to define a discrete minority
class." In other words, "The class affected by Section 3 of DOMA is composed entirely of persons of the same sex who have married each other. Such persons constitute a subset of the larger category of homosexuals; but ... there is nothing amorphous, capricious, or tentative about their sexual orientation." Finally, under the fourth factor, gays and lesbians do not have the political power to insulate themselves from discrimination. "It is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private--which, for our purposes, amounts to much the same thing. Moreover, the same considerations can be expected to suppress some degree of political activity by inhibiting the kind of open association that advances political agendas."
Now that the Court of Appeals has decided that discrimination against same-sex couples is reviewed under heightened judicial scrutiny, the reasons offered by those defending the spousal-benefits law are not good enough to save the statute. These reasons include (1) the need to maintain a uniform definition of marriage; (2) protecting the public fisc and (3) preserving the traditional definition of marriage. As to the third factor, "tradition is hard to justify as meeting the more demanding test of having a substantial relation to an important
government interest. Similar appeals to tradition were made and rejected in litigation concerning anti-sodomy laws." The Court also says that it's no justification to say that Congress wanted to encourage responsible procreation. "DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.” Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before."
Judge Straub (a Clinton appointee) dissents, stating that "The majority holds DOMA unconstitutional, a federal law which formalizes the understanding of marriage in the federal context extant in the Congress, the Presidency, and the Judiciary at the time of DOMA’s enactment and, I daresay, throughout our nation’s history. If this understanding is to be changed, I believe it is for the American people to do so."