ACLU | Ari Ezra Waldman | DOMA | Lambda Legal | Supreme Court

Why Is This DOMA Case Different From All Others?


Three cases. Three courts. One result.

Whether it was Judge Jeffrey White of the Northern District of California, Judge Barbara Jones of the Southern District of New York, or Judge Joseph Tauro of the District of Massachusetts (or, of course, a unanimous three-judge panel of the First Circuit Court of Appeal), the result was essentially the same: the Defense of Marriage Act (DOMA) is unconstitutional.

Edith_Windsor_insert_cMichael_KeyThe Department of Justice (DOJ) has asked the Supreme Court to hear the DOMA cases out of the First Circuit and the Northern District of California, bypassing the Ninth Circuit. Earlier this week, the American Civil Liberties Union (ACLU), which represents Edith Windsor (right) in the New York case, asked the Supreme Court to bypass the Second Circuit and take Ms. Windsor's case, as well. Skipping over the intermediate appellate courts is rare, but not impossible, especially when the case is so obviously headed for an ultimate decision at One First Street.

Still, each of these cases -- Golinski v. Office of Personnel Management, Massachusetts v. Department of Health and Human Services, and Windsor v. United States -- is slightly different. In Golinski, the court preferred to use heightened scrutiny to invalidate DOMA; in Massachusetts, the First Circuit used so-called "rational basis plus," or a more searching form of rational basis review; and, in Windsor, the court rejected DOMA under simple rational basis. A win is a win when it comes to equality and access to the federal marriage benefits, but a Supreme Court decision to hear Windsor, in particular, could bring the scrutiny issue front and center.

In the end, while DOMA will likely die at the Supreme Court next term, the level of scrutiny for sexual orientation discrimination will probably continue its muddled trajectory.

The issue exists at all because the appellate court precedent on scrutiny is old, the Obama Administration has changed the government's long-standing opposition to heightened scrutiny, and, most importantly, no one is entirely sure how the Supreme Court approach scrutiny of antigay discriminatory laws in Lawrence v. Texas.

Scrutiny standards are the lenses through which the judiciary reviews the constitutionality of state action. They come up in all sorts of contexts: Laws trying to restrict freedom of speech get strict scrutiny; laws regulating commerce generally get the lowest form of rational basis review (as should have been the case in the recent health care case). Rational basis review requires that a law or state action be rationally related to some legitimate government objective. Heightened scrutiny, sometimes applied to cases involving gender discrimination, requires that a law be substantially related to an important government objective. A "legitimate" government objective can be anything from conserving resources to protecting the American farm industry; "important" government objectives span a narrower bandwith, reaching only historically essential values of democracy and equality and eschewing simple administrative or financial interests. And, of course, it is easier for a law to simply be "rationally" connected to a legitimate goal than "substantially" connected to one: Lots of things are rational, fewer things are substantially important.

The Windsor case is special because it asks the Court and the DOJ to dive into the heart of this legal controversy. Last year, when Attorney General Holder informed the world (and Speaker Boehner) that President Obama believes that state actions that discriminate on the basis of sexual orientation deserve heightened scrutiny and that under that standard, DOMA is unconstitutional, the Government maintained that its previous position that DOMA could be upheld under rational basis review was still a reasonable (though not its preferred) interpretation of current law. The rational basis fall back was a footnote in Attorney General Holder's letter, but it seemed like the Government's position until oral argument at the First Circuit in Gill. When pressed by the judges, Acting Assistant Attorney General for the Civil Division and former WilmerHale partner Stuart Delery said that the Government "is not here to defend [DOMA] on any standard" and took no position on DOMA under rational basis. So, if Windsor reaches the Supreme Court, the Government may be forced to clarify its DOMA-under-rational-basis position.

In context, this is more than just fodder for ivory tower classroom discussion. 

First, even without Windsor, the DOMA cases will give the Court the opportunity to clarify or remuddle the scrutiny standard. The Supreme Court has never explicitly stated a scrutiny standard for antigay laws. Some appellate courts -- notably, the Ninth Circuit, in High Tech Gays (1990), and the First Circuit, in Cooke v. Gates (2008) -- have said that rational basis review is appropriate for sexual orientation discrimination, but High Tech Gays was decided in a hostile Bowers v. Hardwick (1986) world and Cooke explicitly relied on the Supreme Court's decision in Lawrence v. Texas. Unfortunately, no one is sure what the Court said in Lawrence. At times, Justice Kennedy appeared to refer to fundamental rights, which would trigger heightened scrutiny; at other times, he rejected the idea of intimacy rights as fundamental. Suffice it to say, there is evidence in the Lawrence opinion for both sides of the heightened scrutiny-rational basis divide. And, although Lawrence was decided pursuant to the due process clause and the DOMA cases implicate Equal Protection concerns, federal courts tend to learn from one another when similar issues -- namely, antigay discrimination -- come up. 

Second, the DOMA cases could produce a series of fractured opinions from the Court, even if a supermajority invalidates the law. As I have argued before, these cases offer the Court a rare chance at unity across the liberal-conservative divide. DOMA is anathematic to conservatives who despise federal intrusion into states' rights and odious to liberals who despise the obvious unequal treatment of legally married gay couples. Intellectually honest conservatives should put aside any distaste they have for same-sex marriage as an institution to strike down an obviously unconstitutional law. But, within that, the Court may disagree about the level of scrutiny. In Lawrence, the majority avoided this disagreement by muddling the language and never attacking the scrutiny issue head on. There is even some evidence in Dale Carpenter's new book about Lawrence, Flagrant Conduct, that the seemingly confusing language was meant to gloss over internal disagreements about scrutiny. I am not sure how much I buy that; Lawrence was decided in 2003, some years before lower courts started flouting old and outdated precedent to use heightened scrutiny on antigay state action.

Third, we are having this scrutiny discussion because the President favors heightened scrutiny, the adoption of which would revolutionize gay rights law. Undoubtedly, the organizations representing the DOMA plaintiffs, including Lambda Legal, the ACLU, and the Gay and Lesbian Advocates and Defenders (GLAD), would have made the heightened scrutiny arguments themselves. But, the Government carries more weight in the federal courts and the Obama Administration's position gave Judge White and others the political and legal cover to defy higher court precedent covering their jurisdictions that appeared to foreclose anything other than rational basis review. Historians may look back at the President's boldness in this area of law as one of his signature, lasting, and greatest actions on behalf of gay and lesbian Americans. If Governor Romney wins the next election and puts the DOJ on the wrong side of DOMA, the Supreme Court -- where the case will surely be at the time -- will have political reasons for upholding the law.

The Supreme Court may take all, some, or none of the DOMA cases, but the last option is the least likely. There is already an appellate court case declaring an act of Congress unconstitutional, and that decision is buttressed by a handful of lower court decisions and the Government's bold litigation actions. With briefing due next month, the decision to hear the case shortly thereafter, and oral argument in the Winter of 2012 (after the election), we can expect a decision in the Spring of 2013. And, regardless of whether than decision includes clarity on scrutiny, it should be a great victory for the gay community and our quest for marriage recognition.


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.


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  1. The SJC using heightened scrutiny would be the most important achievement in the gay rights movement. That precedent could be used to eradicate ever piece of anti-gay legislation, including all those state constitutional amendments that ban gay marriage.

    Posted by: cindy | Jul 19, 2012 1:04:24 PM

  2. @Ari - Another great post. Both educational and well written. Every one of your posts reminds me that Mr. Bumble was correct: 'The law is an ass - an idiot.' Please keep up the great work - and I will look forward to learning something from every post.

    Posted by: MikeBoston | Jul 19, 2012 1:16:05 PM

  3. As she has stated there is a fabulous documentary called 'Edie & Thea A Very Long Engagement 'made in 2009 that puts real faces and a tremendous amount of heart to their story.There love is laid out on a silver platter for all to see and then dare deny. Those who have not really must see the film.
    Good like Edie you are an inspiration!

    Posted by: VDUFFORD | Jul 19, 2012 1:26:21 PM

  4. Do you know of any conservatives of prominence who think DOMA Sec. 3 is unconstitutional on Tenth Amendment grounds, but not equal protection grounds? It seems to me that it is nearly always liberals sympathetic to gay rights who think that argument will move conservatives. It would not be at all hard for conservative justices on the Supreme Court to argue that DOMA Sec. 3 merely pertains to the scope of federal programs, so it poses no federalism problems whatsoever.

    Posted by: Fodolodo | Jul 19, 2012 1:32:20 PM

  5. But there's really nothing different about these cases from SCOTUS point of view. Whichever of these cases the Supremes consider, the level of scruiny will be an open question and the history of the case they have in front of them won't matter squat. The briefs in any one of them will reference the decisions in the others as needed.

    That said, isn't time for predictions? I know we're still waiting for GLAD's cert petition, but...

    SCOTUS doesn't want to take all of these cases and have to hear from BLAG, GLAD, Lambda Legal, the ACLU, the DOJ, and I guess the Mass. Attorney General's office. I predict they take the Mass. cases only. More than enough fodder there. Asking SCOTUS to take the 2 cases still on appeal was just a way of underscoring the importance of Gill and Massachusetts in the first place.

    Worst scenario, SCOTUS accepts the two 1st Circuit cases and then doesn't schedule oral argument while it awaits the outcomes in Golinski and Windsor. That's the right's best hope, I'd say.

    Posted by: Bingo | Jul 19, 2012 1:35:46 PM

  6. Nan Hunter at Hunter of Justice and Claude Summers at have suggested that one reason for the multiple cert filings is because Justice Kagan will recuse herself from the Massachusetts cases. Since recusals have to do with particular cases not the particular issues, if the Court accepts more than one DOMA case will be able to vote on at least one of them. I don't think anyone wants a 4-4 result. In that case, the lower court decision would be upheld, but the ruling would not have precedential value, so DOMA would not be declared dead beyond the jurisdiction of the particular case.

    Posted by: Jay | Jul 19, 2012 2:41:33 PM

  7. "DOMA will likely die at the Supreme Court next term"

    I hope you're right. Maybe I've missed where you've written about this before, but why do you think this is likely?

    Posted by: bb | Jul 19, 2012 4:37:08 PM

  8. Let's remember that the Supreme Court is always more right wing than left. ALWAYS.

    Let's also remember the Supreme Court is NOT supposed to be political but most often it is.

    Let's remember the Supreme Court ruled it was OK for the Boy Scouts Group of American to ban gay kids and gay leaders.

    Let's remember not to get our hopes up that the Supreme Court is ever going to help us scrap DOMA or defend gay marriage.

    The whole system is broken and corrupt. We need to scrap the Supreme Court.

    Posted by: Icebloo | Jul 19, 2012 4:48:51 PM


    It doesn't matter. The conservative members of the SJC have boxed themselves into the corner with this one. They've struck down many laws recently claiming 10th amendment violations. Marriage has never been a federal issue and so for DOMA to appear magically out of no where impeding on state's rights? A state needs to be able to make their own laws and for others states and the federal government to respect that. DOMA bars against the freedom for states to make determination on an issue that has always been a state issue. They will have no credibility left if they uphold it.

    Posted by: cjt | Jul 19, 2012 5:32:28 PM

  10. Kagan will not recuse herself from this case since she didn't from the ACA case (which as Solicitor General she had MUCH more involvement in). Regardless, she was only involved in the Gill case, not the other one from Mass. Also, should she recuse herself, I expect it will still be at least a 5-3 decision, with Roberts siding with the majority.

    Posted by: Stefan | Jul 19, 2012 5:54:10 PM

  11. Another good reason to support and vote for Obama.

    Posted by: David R. | Jul 19, 2012 10:27:26 PM

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