Ari Ezra Waldman | DOMA | Gay Marriage | Law - Gay, LGBT | News | Proposition 8 | Supreme Court

Supreme Court Preview: Equal Protection in the DOMA and Prop 8 Cases


Highcourt3_51On Tuesday and Wednesday, March 26 and 27, the Supreme Court will hear more than 3 hours of arguments in the challenges to the constitutionality of California's Proposition 8 (Hollingsworth v. Perry) and the Defense of Marriage Act (Windsor v. United States). In a series of short posts, I will preview and summarize the legal issues that will be raised. Today, the constitutionality of Prop 8 and DOMA.

We've discussed the preliminary jurisdictional question of standing, without which, the Supreme Court cannot hear the Prop 8 and DOMA cases. We've also discussed the first substantive question of scrutiny, which the Court may not even fully answer. Now, we can discuss the underlying question: Assuming standing and given a particular level of scrutiny, are Prop 8 and DOMA unconstitutional?

The Court could answer these questions any way it wants. DOMA is especially subject to a federalism critique -- namely, marriage law is the exclusive realm of the States and a federal definition of marriage is a gross expansion of federal power. Notably, Massachusetts District Court Judge Joseph Tauro and the First Circuit Court of Appeals referenced federalism concerns in both of their decisions striking down DOMA in Gill v. OPM. The Court could also follow Judge Vaughn Walker and use the operative Due Process Clauses to find that a broad fundamental right to marry applies to gay persons just like it applies to everyone else.

Let's keep it simple, though, and focus on equal protection. The standard rule is that the Constitution does not countenance treating similar citizens differently without a good reason. Disparate treatment is especially odious when the discriminated citizens are part of a traditionally disadvantaged group and it is most likely to fail the higher the level of scrutiny.

I think Prop 8 and DOMA fail under any level of scrutiny, even the low rational basis, because the proponents' justifications for both laws are completely divorced from the effects of those laws. A law that simply takes away the word "marriage" from gay couples who have every other right to raise children and create a family and a law that simply denies federal benefits to already married gay couples can have no rational connection to the government's interest in encouraging heterosexuals to marry. The very irrationality of these laws may hearten us as we look forward to favorable pro-equality decisions in June, but may also put a heightened scrutiny determination out of reach.

Let's discuss AFTER THE JUMP...

If the level of scrutiny is the height of the hurdle on the track, equal protection is why we're running the race. Even though the Constitution guarantees equal protection, no right is absolute. We allow for certain kinds of discrimination and classifications among populations that we don't think are so bad; for example, there are really good reasons to discriminate on the basis of age when it comes to voting. At a minimum, we don't look at age discrimination as carefully as we do racial discrimination because of this country's history of bigotry and the lack of any rational reason to discriminate among races.

So, every equal protection case asks the same question: Is there a good enough reason for this particular deviation from full equality? In the DOMA and Prop 8 cases, the answer is no.

During the course of the Prop 8 and DOMA cases, proponents of those laws have offered a whole host of reasons for upholding those laws.


The Argument: Gay marriage has to be banned because we have an interest in protecting traditional notions of morality and traditional marriage. 

The Response: Even if we accept that the government has an interest in upholding traditional morality, the Supreme Court has said -- in Romer v. Evans and Lawrence v. Texas -- that morality alone, especially morality-based disapproval of a particular group, can never be enough to justify discrimination against that group.


The Argument: Prop 8 and DOMA are ok because the government has the right to allocate scarce government resources however it sees fit. Edie Windsor wants more than $350,000 back and gay marriage would cost California money. We can't afford that.

The Response: This argument is almost silly. Assuming you can make decisions like this based on dollars and cents, not only is the freedom to marry a financial boon, but the Supreme Court has said that administrative concerns could never, without more, justify discrimination against traditionally disfavored persons.

Status Quo and Uniformity.

The Argument: DOMA was necessary to maintain the status quo while the states work out the freedom to marry on their own, and to maintain uniformity in federal marriage law.

The Response: DOMA did nothing of the sort. The states would be working out the freedom to marry with or without federal benefits being given to already married gay couples. More importantly, DOMA actually changed the status quo: Before DOMA, the federal government accepted as married whomever the states said were married. And, DOMA actually made "federal marriage law" less uniform. It left intact variations among the states about the age at which you can marry and what kinds of familial relations (first or second cousins, for example) could marry. It singled out gay people and nothing more.

Pediatricians-gay-marriageChildren and Family.

The Argument: The rest of the arguments have something to do with raising children and creating families, like fostering the creation of the "optimal parenting structure." The only remaining argument offered by the Prop 8 and DOMA proponents at the Supreme Court is that the government can ban gays from marrying and deny them marriage benefits because it has an interest in encouraging heterosexuals to marry so that children are not born out of wedlock. Opposite-sex couples can procreate accidentally, same-sex couples cannot. Therefore, we need to make sure those accidental pregnancies result in children being born inside a marriage.

The Response. There are many.

First, take note of the remarkable turnaround in how conservatives are arguing about gays and gay rights. It used to be that gays did not deserve the state's protection and our behavior could be criminalized because we were diseased, promiscuous, incapable of settling down and loving, and just interested in sex. The accidental pregnancy argument turns that around. Now, the state is worried that straight boys can't keep it in their pants and willy nilly impregnate their woman of the day (or, to be fair, the state may also be worried that straight women are too promiscuous themselves).

Second, although I agree that the state has an interest in encouraging people to marry, that legitimate state interest is not at all connected with banning gays from marrying or denying health care benefits to already married gay couples. If you want to encourage people to marry, eliminate the so-called marriage penalty tax. The only way that denying gay people the freedom to marry could encourage heterosexuals to marry is if we assume that opposite-sex couples only want to marry because gay people can't. That's bald hatred and just wrong.


DOMA and Prop 8 violate equal protection under any standard. Two decisions like that from the Supreme Court would be victories for our community. But, the utter irrationality of both laws may make a heightened scrutiny decision unnecessary. The rule of thumb at the federal courts is that judges should not decide any more than absolutely necessary to answer the question in front of them. Look for this axiom to particularly persuasive to the prototypical moderate on the bench, Justice Stephen Breyer. He has, in several cases, separated from his traditional liberal allies (Ginsburg, Stevens, Souter, Sotomayor, and Kagan) to make narrower holdings that they would have preferred. It is for this reason that I remain skeptical that the Court is willing to make an explicit pro-heightened scrutiny decision: I'm not even sure we'll get Justice Breyer, let alone one of the conservatives.

The question of 'standing' in the Prop 8 case [tlrd]
The question of 'standing' in the DOMA case [tlrd]
Supreme Court Preview: 'Scrutiny' in the DOMA and Prop 8 Cases [tlrd]

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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. You can follow him on Twitter at @ariezrawaldman.

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  1. Thank you for these articles!

    Could you write a column about what could happen in the state courts should the Supreme Court rule that the proponents of Prop 8 do not have standing? The California Supreme Court has imbued them with the ability to defend their ballot measure in state courts. Could we see a scenario where the proponents sue the Governor for ordering same-sex marriage fully re-instated, arguing that the District Court decision only applies to the two specific couples named in the suit? How would this be resolved and how long would it take?

    Posted by: Bill S. | Mar 25, 2013 1:08:11 PM

  2. Is there not an argument that DOMA fails under any level of scrutiny because it prohibits the Federal Govt. from honouring its obligations under Private International Law to recognize legitimate marriages contracted in foreign states ?

    It also fails under a level of scrutiny which obliges the Federal Govt. to live up to its obligations of "the comity of nations"....also part of Private International Law.

    And it puts the United States in the odious position of not recognizing foreign marriages when that very forgign state recognizes a valid US marriage for its Private International law obligations !....where's the reciprocity ?

    DOMA is tearing down the very fabric of Private International Law.

    Posted by: JackFknTwist | Mar 25, 2013 1:28:17 PM

  3. If Martha wants to marry Bob (and Bob agrees), they can marry. If John wants to marry Bob (and Bob agrees), John is prohibited from marrying Bob. So -because John is a male, he is prohibited from marrying Bob. Any female above the age of consent can marry Bob. This violates the equal protection clause. Because John and Martha are similarly situated (both want to marry Bob)... John is treated differently because of his gender. This is gender discrimination without question. And while gender discrimination does not have the highest level of scrutiny, it does have to pass at least a rational basis test. What is the "rational basis" that permits Martha to marry Bob and to deny John the right to marry Bob?

    Posted by: Dan Cobb | Mar 25, 2013 1:52:05 PM

  4. Ari, you say the rule of thumb is for the justices to decide as narrowly as possible only the question before them. But if, as is mostly expected, they breeze right by the standing issue - won't they have already gone way beyond the question before them? (Assuming, as I do, that the appealing parties are so far from standing, they are barely able to crawl.)

    If that's the case, isn't it a bit "in for a penny, in for a pound" and sticking to a narrow ruling would be needlessly hypocritical after that horse has already come home?

    Not to say a narrow ruling avoiding scrutiny designation and indeed a broad 50-state ruling, wouldn't be politik - but I think once standing is ignored, the narrow question ship has sailed.

    And there, I'm done with quaint metaphor phrases. ;-)

    Posted by: Zlick | Mar 25, 2013 1:55:24 PM

  5. @DAN COBB :

    If John and Bob marry validly in Massachuttes and go to live in the Netherlands their marriage will be recognised in the Netherlands as valid because it was valid in the place of performance. ( Mass)

    If Andre and Kurt validly marry in the Netherlands ( with all the domicile/residence/formalities qualifications complied with) and come to live in USA will USA recognise that marriage as having the same validity as the USA one the Netherlands recognised ?

    Or does DOMA prevent such reciprocity of recognition ?
    This is what I have been railing about for quite some time.

    Posted by: JackFknTwist | Mar 25, 2013 2:19:30 PM

  6. @zlick. Thank you for your question. No, deciding that the parties do indeed have standing is not already more than the court had to decide. Standing is jurisdictional: if no standing, no case; if yes standing, then we have a case. Therefore, if yes standing, then the court has to go on and actually decide the case. Then the rule of thumb applies to actually deciding the case.

    Email by Ari, Typos by iPhone.

    Posted by: Ari Ezra Waldman | Mar 25, 2013 2:35:12 PM

  7. My take on it is that if standing is granted in either case (as I expect it will be in both), the justices have already twisted the law in enough pretzel shapes to suit their aim of hearing the cases. From everything I've gleaned on this issue, neither appealing party has proper standing to do so.

    So my point was that granting standing is already far ahead of typical judicial prudence. And if standing is granted, why hide behind such prudence at that point? Seems silly.

    If the level of scrutiny is not spelled out, it will be because of political considerations - and not judicial restraint. That restaint's already gone out the window if standing is granted.

    I have to admit I'm curious how SCOTUS is going to grant standing in these cases without setting up precedents that will come home to harmfully roost later on.

    Posted by: Zlick | Mar 25, 2013 3:06:36 PM

  8. Presumably the Court would explain why the appealing parties have standing, thereby negating your argument they do not. So from their perspective, they have simply resolved that jurisdictional issue, not enjoyed a delicious pretzel.

    As for JackFknTwist, the Supreme Court is ruling on the Constitutionality of the laws in front of it per our Constitution, not international law. If someone brought on appeal that this was a violation of international law, they would likely rule on that (or deny for lack of jurisdiction), but that isn't what is presented to the Court.

    Posted by: FancyPants | Mar 25, 2013 3:46:23 PM

  9. As I said, I'm eager to hear their rationale, because I've yet to read any legal scholar come up with one. Some say SCOTUS could bow to the same clap-trap the Ninth Circuit did in the Prop 8 case about civilian ballot proponents stepping in for the state.

    But, I've not read a single legal opinion that can shed light on how Congress, much less one House of Congress, much much less one committee of one House of Congress, has the right to step in for the executive branch administration in a matter that does not affect the prerogatives of Congress.

    Perhaps SCOTUS will just pull a Bush vs. Gore and rule it's because they said so, and their saying so this time is not to apply to any future case.

    Posted by: Zlick | Mar 25, 2013 6:10:01 PM

  10. I must admit, when Prop H8 first passed in my home state of California after my husband and I married, I was devastated and demoralized thinking every citizen of the state hated me and feared me so much that they purposefully voted in to the state's constitution the right to discriminate and diminish this, the most important relationship, of my life.

    Now, just a scant four years later, and everything seems to have gone the other direction. The very fact that the US Solicitor General has been given permission to argue before the court is monumental, and proves that the "State's Interest" in both California's Prop H8 and the federal level's DOMA is that there is no interest in creating two separate and unequal institutions. I have much hope, and regardless of outcome, feel that when we introduce ourselves to our family and show that our love is equal to their love, that truth and justice will always prevail.

    Oddly, I often think that these anti-gay amendments are the reason things have turned around so quickly, and in our favor. They allowed us to have a dialogue and a national platform, and to expose the misinformation and stereotypical hate speech directed at our community as what they were. . .lies. We are no longer the "love that dare not speak its name" and in fact, it's odd how people just can't seem to stop talking about it (and I mean that in the positive sense of the phrase).

    Posted by: Keith | Mar 25, 2013 6:18:48 PM

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