The U.S. Court of Appeals for the Second Circuit ruled today that sexual orientation classifications should be subject to heightened (intermediate) scrutiny under the Equal Protection Clause, and found that DoMA failed that test. In a highly unusual twist, plaintiffs had already filed a petition for certiorari in the case, even before the Court of Appeals ruled. Now this case – Windsor v. United States – is fully ready for consideration by the Supreme Court. It is likely that Justice Kagan would recuse herself from the first case to land at the Supreme Court’s door (from Massachusetts), but that is not the situation in Windsor. Thus Windsor‘s arrival essentially guarantees that DoMA’s constitutionality will be determined by all nine Justices.
In the Windsor case, plaintiff is challenging a $350,000 estate tax bill she had to pay because DoMA prohibited the federal government from recognizing her marriage. The panel of judges split two to one on DoMA’s constitutionality.
In its consideration of the standard of review, the court reviewed the reasoning behind elevated standards for a number of characteristics, and concluded that
…homosexual compose a class that is subject to heightened scrutiny. We further conclude that the class is quasi-suspect (rather than suspect) based on the weigh of the factors and on analogy to the classifications recognized as suspect and quasi-suspect. While homosexuals have been the target of significant and long-standing discrimination in public and private spheres, this mistreatment “is not sufficient to require ‘our most exacting scrutiny.’”
In other words, the majority of judges concluded that the standard applied to sex-based (and other) classifications is more appropriate than the highest standard, applied to race-based (and other) classifications. In the Massachusetts case, the First Circuit held that DoMA was subject to the lowest standard – rational basis – but that it was unconstitutional even by that measure. U.S. District Courts (the trial level) have applied all three standards in the various cases now wending their way through the appeals process. No court has upheld DoMA as constitutional, regardless of the standard used.
Judge Straub in dissent would have applied the rational basis test and found DoMA to be constitutional under that standard. He credited all the justifications for enactment of DoMA that were offered by lawyers hired by House Republicans to defend it, and had little trouble finding the law rational.