As I have argued before, there are at least three good reasons why it is probably better for the DOMA Cases to reach the Supreme Court before the Prop 8 case, if the latter ever does. First, the substantive law of the Ninth Circuit's decision in Perry v. Brown is suspect. Second, DOMA is a stark example of antigay discrimination that isn't laden with the moral questions of a direct challenge to a ban on same-sex marriage. Plus, DOMA is, on its face, about benefits, entitlements, and the tangible accouterments that go along with marriage. DOMA prevents legally married couples from staying in this country together when one spouse is a foreign national. It costs widows hundreds of thousands of dollars upon the passing of their spouse. It keeps spouses off health care plans and denies them Social Security benefits. These are things — the tangible "stuff" of government — that opposite-sex couples cannot do without. DOMA is not about marriage; in fact, it does nothing to state laws that recognize or refuse to recognize marriages for same-sex couples. And, third, if marriage recognition is our ultimate battle, creating positive precedent along the way can only help, much like Romer and Lawrence have created positive precedents for every gay rights victory to come.
But in the aftermath of the Supreme Court's curious decision in National Association of Independent Business v. Sebelius (the "Obamacare" case) and the Ninth Circuit's decision in Perry v. Brown, speedy and prompt resolution of the DOMA Cases takes on extra importance.
Golinski and Massachusetts are just two controversial cases that may be on the Court's docket next year. The justices will also consider the fate of affirmative action in college admissions, a policy blessed by the Court only because the now-retired moderate Justice Sandra Day O'Connor sided with the Court's liberal wing the last time around. Conservative and Tea Party politicians are also challenging the Voting Rights Act. So, the Court's conservatives have the opportunity to install a socially anachronistic regime on a wide swath of the culture and race wars now that, if some commentators are to be believed, Chief Justice Roberts's vote to uphold the ACA inoculates him and the Court from charges of bald partisanship and arch-conservatism.
Briefly, the argument goes like this: The Chief Justice allegedly switched his vote from rejecting the ACA to upholding it using the curious Taxing Power rationale after feeling the heat from the zeitgeist of the times. After Bush v. Gore and Citizens United, progressives were starting to see the Supreme Court as nothing more than a Republican rubber stamp, law be damned. Concerned about his legacy and the Court's reputation under his watch, the Chief Justice saved the President's signature legislative achievement in the narrowest, most conservative way possible to give the battle to the left, but win the longer war for the right. Not only did he use Sebelius to further restrict the reach of the Commerce Clause — a long standing crusade of the right — but he showed his ostensible independence. Now, if he demolishes the Voting Rights Act, ends affirmative action, and sides with Justice Scalia's blatant homophobia on the DOMA Cases, he can point to the ACA to show his evenhanded demeanor.
That argument makes a lot of sense to me, but I won't lose sleep over it. In the end, DOMA should be hated by at least 6 justices on the Court — small-government conservatives (Chief Justice Roberts, though a social conservative indeed, has shown a greater judicial proclivity to this camp), moderates, and liberals. And, a win is a win is a win, regardless of the noise that surrounds it.
The real question may end up being about the level of scrutiny the Court uses to strike down DOMA. There seem to be three options. First, the Court could listen to President Obama and use heightened scrutiny to evaluate any state action that discriminates on the basis of sexual orientation. There is every reason to do so, and the DOJ has argued the details in every brief since the President made his view known last year: sexual orientation is unchanging, gays have been historically discriminated against, and lack the political clout to eradicate discrimination at the ballot. Judge White of the Northern District of California used heightened scrutiny when he declared DOMA unconstitutional in Golinski (notably, he also found DOMA unconstitutional under an alternative rational basis holding).
Second, the Court could follow the First Circuit in Massachusetts and Gill v. OPM and use the so-called "rational basis plus," a more searching form of review somewhere above the most permissive form of judicial review and heightened scrutiny. This form of review finds support in Supreme Court majority opinions from Justices Kennedy and O'Connor and the conventional wisdom taught in law schools. DOMA is undoubtedly unconstitutional under this standard of review.
Third, the Court could make a mistake and assume that rational basis review for discriminatory social legislation is the same for economic legislation under the Commerce Clause. This was the central error of Justice Smith's dissent in the Ninth Circuit's decision in Perry. He argued that as long as the voters of California acted in good faith, it didn't matter that they voted to discriminate against gays based on fear, junk science, and lies, and without any rational connection between reality and the law they passed. That egregiously permissive standard makes a mockery of Lawrence v. Texas, which expressly rejected such a standard, and threatens to nullify the Supreme Court's and sister appellate courts' decisions on legislation that classifies persons on nothing more than sexual orientation status.
I have little faith in a majority of this Court agreeing to heightened scrutiny most notably because Justice Kennedy, the swing vote, declined to use that standard in his previous progay decisions. However, this time around, the Government has thrown its full weight behind heightened scrutiny, a factor that has swayed the Court in the past. And, yet, the Supreme Court has to make this decision. As we have seen from appellate court decisions in Perry (citing High Tech Gays) and Gill (citing the Don't Ask, Don't Tell case, Cooke v. Gates), the issue is unsettled in the lower courts, with District Judge White coming out in favor of heightened scrutiny regardless of what the Ninth Circuit said back in 1991.
What do you think? Do you think we need heightened scrutiny to win our upcoming civil rights battles? Would you prefer the victory regardless of the standard of review?
Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.