News outlets and activists have been trumpeting loudly over two recent court rulings against the constitutionality of provisions of the Defense of Marriage Act, making it appear to the casual reader as if the statute is on its last legs. But the truth is far more complicated.
The scope of both rulings is severely limited, with both conspicuously and deliberately avoid ruling on the constitutionality of section 2, the section granting states the right to ignore same sex marriages performed in other states. Both rulings take very similar routes to rule against the constitutionality of section 3, echoing each other in the precedents they draw upon and the judicial logic they employ.
In Windsor v. United States, Edie Windsor sued the federal government, claiming she had faced discrimination after her partner Thea Spyer died in 2009. Although the couple had married in Canada in 2007, Windsor was forced to pay federal estate taxes totaling $363,053. Under federal tax law, the surviving member of a marriage is granted an unlimited marital deduction on the estate of their partner, but DOMA denies this benefit to same sex couples by restricting the federal definition of marriage to a union between one man and one woman.
Windsor’s lawyers argued that since DOMA deals with the rights and freedoms of a “suspect class,” a group of people who have historically been the victims of discrimination, the law should be subject to strict scrutiny. Strict scrutiny requires that the law in question serve a “compelling government interest” and that it be “narrowly tailored” to that interest. Judge Barbara Jones disagreed, pointing out that there was no legal precedent at the Supreme Court level for using sexual orientation as the basis for a suspect class and that lower courts were reluctant to create new suspect classes on their own. On a gut level this seems like caution tipping towards cowardice, for a court to look at the criteria for suspect classification which include a history of discrimination, the immutability of the characteristic at hand, and the irrelevance of the characteristic on a class’s ability to perform within society and not see plainly that sexual orientation passes muster for all three.
Instead Jones invokes the “rational basis” standard, the lowest level of judicial scrutiny, which places the burden of proof for questions of a statute’s unconstitutionality on the party bringing it into question. Rational basis is highly deferential to the status quo and requires a law to be upheld if any rational justification can be found that upholds any legitimate government interest. Jones found that while DOMA’s defenders had put forth legitimate interests which the government had a stake in upholding, they hadn’t explained how the statute furthered these interests.
Promoting the ideal family structure for raising children is another reason Congress might have enacted DOMA. Again, the court does not disagree that promoting family values and responsible parenting are legitimate governmental goals. The court cannot, however, discern a logical relationship between DOMA and those goals. […] It does not follow from the exclusion of one group from federal benefits (same-sex married persons) that another group of people (opposite-sex married persons) will be incentivized to take any action, whether that is marriage or procreation.
This passage echoes the unanimous decision handed down from the First Circuit Court of Appeals last month. The First Circuit also ruled section 3 as unconstitutional under rational basis review, stating:
Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage.
The First Circuit, led by Judge Joseph Tauro, ruled on three separate cases challenging the constitutionality of DOMA. The decision handed down stated the case was made difficult because it combined “issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.” Like Jones, the court declines to define sexual orientation as a characteristic deserving of a suspect class, noting that the supreme court had opted not to do so sixteen years previous in Romer vs. Evans, a case handling the right of communities to pass anti-discrimination ordinances.
In both cases the rulings made use of “rational basis with bite,” a legal tradition which allows a court to apply higher scrutiny than traditional rational basis without blessing the group in question with suspect classification. Under traditional rational review, the government’s rationale need only be plausible, and need not be proven to advance the interests it claims to protect. In invoking their right to employ enhanced rational review both cases cite Department of Agriculture v. Moreno (1973), in which the plaintiffs argued that requiring every member of a household be related to one another to qualify for food stamps did nothing to prevent fraud and disqualified needy people from federal assistance for forming unconventional households out of financial necessity.
Both courts defended their use of heightened rational review by stating that DOMA intruded upon a right usually left to the states, the right to regulate and define marriage. From the First Circuit’s decision:
The denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws.
Federalism is a double-edged sword for proponents of marriage equality. It provides the basis for section three of DOMA to be struck down but it only strengthens section two, promising that the states that have amended their constitutions to ban marriage equality will remain free of it for as long as possible. “States’ Rights” are often a dog whistle in American politics, used to signal a politician’s willingness to protect bigotry and prejudice at the state level and advocate removing inequalities from the purview of the federal government. Such tactics force activists to fight several smaller, resource-draining battles in the individual states rather than seek redress on the national stage.
Closely reading both decisions I was struck with how poorly the system of American jurisprudence deals with redressing gaps in individual liberty and how much deference it gives to established, historical bigotry. In the almost sixteen years since the Defense of Marriage Act was passed it has become increasingly clear that people of differing sexual orientations are alike in most respects, certainly in all of the facets that this legislation finds them different in order to separate them. It is bizarre to read the speculations that flow from a court’s interpretation of what might have motivated the passage of DOMA when the animus behind the law practically throbs out at your from the page. DOMA could not have come into being without the will of the religious lobby and could not have survived this long without being draped in disingenuous language about legitimate state interests and “traditional marriage.” The legal tradition that has accreted around the law to make it appear to be secular in origin is flimsy and laughable in its transparency, but it has successfully migrated the conversation to stronger rhetorical ground for its proponents.
It is likely the Supreme Court will rule on one of these cases to avoid taking on Perry Vs. Brown, which has higher stakes for both sides of the issue. Perry vs. Brown is on much shakier legal ground than the cases challenging DOMA and has much more far-reaching implications. Losing it could be a major setback to the cause of marriage equality, winning it could make marriage equality the law of the land.
However the Supreme Court ends up ruling on the DOMA cases, it is clear that neither would provide the sort of overnight revolution that Lawrence vs. Texas did, where sodomy was decriminalized across the entire country in one legal decision. However, declaring sexual orientation to be an immutable characteristic deserving of a suspect class could make judicial challenges to inequality on the state and federal level easier and force those who seek to discriminate to bear the burden of defending their interest in doing so as “compelling.”