Are the scrutiny questions the same in both cases?
Most of us argue that both Prop 8 and DOMA raise the same scrutiny question: Does state action that discriminates on the basis of sexual orientation get rational basis or heightened scrutiny? Prop 8 denies the word "marriage" to people who are gay; DOMA denies some people the federal benefits of marriage just because they're gay.
But, some conservatives dredging the bottom of the barrel for some way around the reality that gays merit heightened scrutiny are suggesting that the discrimination has more to do with couples. Gay couples are different from heterosexual couples not because of their sexual orientation — the hook in my version of the scrutiny question — but because of the way they have children. There may be a history of discrimination against gays and maybe gays are victimized in the political sphere, but there is no history of discrimination on the basis of how people procreate. For these conservatives, the scrutiny question is whether discrimination on the basis of procreative ability merits heightened scrutiny.
I don't think this argument will gain much traction. The defining difference between those couples are their sexual orientations, so the two questions just offer different words for the same issue: discrimination against gays.
Does the Court have to decide the scrutiny question?
No, it doesn't. It could continue to muddle along without giving a clear statement of the level of scrutiny. The Court did this in Lawrence v. Texas, where Justice Kennedy seemed, at times, to talk about fundamental rights, but at other times, talked about rational basis.
Notably, the very obviousness of the hateful discrimination apparent in Prop 8 and DOMA may make a clear statement in favor of heightened scrutiny less likely. That is, because DOMA is so clearly unconstitutional, or because simply denying the word "marriage" to gays is so clearly irrational, the Court could strike down both laws by saying something like "under any standard" or "regardless of what level of scrutiny we use," the laws are unconstitutional.
Do gays really have to be politically powerless to win heightened scrutiny?
If the Court actually addresses the question, it will consider 4 factors: a history of discrimination, a defining characteristic that does not affect the group's ability to contribute to society, political power, and the nature of the group's defining characteristic.
The first two are uncontroversial. No one still thinks that gays haven't been discriminated against and no one thinks that being gay prevents you from being a good citizen. But, the latter two — political power and the group's defining characteristic — are still (amazingly) the subject of debate.
Conservatives, including House Republicans and ProtectMarriage, think that the operative factor is "political powerlessness," and they cite the number of openly gay representatives in Congress, recent gay rights victories at the polls, and President Obama's strong support for the gay community as evidence that gays are not politically powerless. Judge Randy Smith, the dissenter in the Ninth Circuit's Prop 8 decision, fell into this trap.
They're wrong. It's not powerlessness; rather, it is whether the group could ever realize its equal rights through the political process alone. The smallness of the gay minority, entrenched bigotry, the all-too-many constitutional amendments banning marriage equality in the states, and continued discrimination all mean that we need the courts much like women and African-Americans need the courts, too. And, they're also wrong when they argue that sexual orientation is not like race because you can't change your race. ProtectMarriage and House Republicans seem to still think being gay is changeable. Even if they were right, the legal standard is not "immutability," but whether the group has a defining, deeply held characteristic that binds it together and is the basis of discrimination. That is certainly the case with sexual orientation.
Most likely, but look for Justice Kennedy to be the swing. He's a conservative and was all too willing to leave scrutiny levels untouched in Romer and Lawrence. But, Kennedy, unlike his fellow conservatives, has a history of being willing to reflect the state of public opinion in his decisions. The public's views on marriage and anti-gay discrimination may sway him.
That said, I do not believe Justice Kennedy is there yet. He should be; the law is certainly on the side of heightened scrutiny. But, the master of incremental change may not be willing to call for heightened scrutiny because it can be used as a tool for revolutionary change.
Look for the scrutiny question to get a lot of attention at argument, but be left undecided by a majority of the Court. Four justices — Ginsburg, Breyer, Sotomayor, and Kagan — are probably on board with heightened scrutiny, but a few of them, especially the moderate Justice Breyer, may be very willing to see both Prop 8 and DOMA destroyed under any standard, even rational basis.
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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.