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Will DoMA case change the constitutional standard for sex/o discrimination? | Hunter of Justice

Will DoMA case change the constitutional standard for sex/o discrimination?

by on November 23, 2009  •  In Constitutional law, DoMA

    The issues are now joined in Gill v. OPM, the GLAD case challenging the constitutionality of DoMA.  Unlike the Perry case in California, the decision in Gill will have no effect on state marriage laws.  The plaintiffs are same-sex couples or surviving spouses in Massachusetts, and are arguing that the denial of federal benefits due them is unconstitutional.

    The most important legal issue in the case is the standard of review, the question of how stringently a court will examine the reasonableness of a law that distinguishes between persons based on, in this case, sexual orientation. There is no federal court decision on the books that adopts a heightened level of scrutiny in an Equal Protection Clause analysis of sex/o classifications.  The plaintiffs are also arguing that the denial of federal benefits also infringes their due process/liberty-based right to maintain family relationships.

    In its brief filed two months ago, the Obama Justice Department made its third attempt to defend DoMA without setting off a firestorm of protest from lgbt groups.  The most significant aspects of the latest DoJ brief are what isn't there: the pieces of argument made in an earlier brief filed in a California case. Noxious arguments that discouraging same-sex marriage promoted the interests of children (which DoJ has now specifically disavowed) and that DoMA is justified by the government's interest in preserving scarce resources (ie benefits) and in not using tax funds raised in states that don't recognize same-sex marriages for same-sex couple benefits — these three assertions have fallen by the wayside.

    What DoJ was not willing to do, however, was to change its argument about the correct standard of review. DoJ asserts that the traditional, highly deferential form of rational basis review applies to sex/o classifications. Under this standard, the challenged law is entitled to a strong presumption of constitutionality; there can be a very loose, inexact fit between the purpose of the law and the means used to achieve it; the court may hypothesize possible purposes that Congress may have had; and the law will be upheld if any conceivable set of facts can provide a rational basis for it.

    What everyone knows but DoJ does not acknowledge is that the Supreme Court did not use this traditional approach to rational basis review in either Romer or Lawrence.  If it had, it would not have reached the results that it did. Unfortunately, the Court also did not identify which standard it was using, leaving lower courts open to essentially limiting the impact of those two decisions to only cases with close-to-identical facts, which will arise only rarely.

    The plaintiffs' brief in Gill argues for heightened scrutiny or, alternatively, that DoMA fails to satisfy even the most deferential form of rational basis review. I don't know what the district court will do, but I think there is an excellent chance that plaintiffs will win before the Court of Appeals for the 1st Circuit, possibly using the standard proposed by Justice O'Connor in her concurrence in Lawrence, which is basically heightened rational basis when there are signs that the challenged law was based on animus toward a group.  DoMA certainly fits the bill.

    Whoever wins on appeal, the other side will seek review in the Supreme Court. Timing is completely impossible to predict, but it seems likely that this case will reach the Supreme Court around 2011 or 2012. And of course there is no way to know exactly who will be on the Court at that time.  But it sure looks possible that this case, too, will effectively be decided by Justice Kennedy.

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