Supreme Court Preview: ‘Scrutiny’ in the DOMA and Prop 8 Cases

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.

Ap_justice_anthony_kennedy_ll_111128_mnIs the scrutiny question going to cut along ideological lines?

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.

Previously in this series…
The question of 'standing' in the Prop 8 case [tlrd]
The question of 'standing' in the DOMA case [tlrd]

Make sure not to miss a Towleroad headline by following @TLRD on Twitter.


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.


  1. says

    Thanks Ari;

    Does the issue amount to “rational basis ” scrutiny as opposed to “heightened scrutiny”…… that the distinction I learn from your analysis ?
    And is “heightened scrutiny” only applied when considering the constitutionality of a law ?
    ( or have I even grasped the meaning of your article ?)

    And what precisely is the precedent for the application of different levels of scrutiny ? in different legal issues… ,not a statutory basis I’m sure.

  2. Chris says

    I know that this is off topic, but what’s the best and worst case outcome from all of this? Besides SCOTUS deciding that DOMA and prop 8 are not unconstitutional. Could there be a nation wide legalization of marriage equality from these cases?

  3. Jonathan says

    I’d be interested if the six Catholic Justices think that since the majority of the Supreme Court of the United States of America is comprised of Catholics that laws designed to disadvantage Catholics only need to meet a rational basis level.

    Just as an aside, has anyone noticed there are only Jews and Catholics on the Supreme Court?

  4. Jonathan says

    @Chris, if Prop 8 is declared unconstitutional in the broadest sense, most likely coupled with a ruling that puts the issue under strict scrutiny, every law against gay marriage in the country would likely be overturned by the ruling. I do not believe there is an outcome for the DOMA case that automatically guarantees country-wide gay marriage, mostly because the case itself is focused on the federal implications rather than state. However, strict scrutiny here would also be an indicator of unconstitutionality of gay marriage bans.

    Ultimately, it is very unlikely that the cases will be decided with differing levels of scrutiny.

  5. Anthony says

    Maybe Kennedy will “get there” in the next 3 months. Having us fight all these battles while we should be getting heightened scrutiny is an injustice. Here’s to hoping.

  6. nonapologies says

    I keep missing whether anyone ever explains why the scrutiny level matters outside of marriage equality? May be you covered it, and I simply am missing it.

    The main reason is that it affects all areas of which gays face discrimination based on their sexual orientation. Housing. Employment. Sports. Education. Etc.

    While the higher scrutiny will not always per se prevent these things, if governments have a harder time doing so, this will have an impact on the private sector ability to do so even in areas where the rule is not per se. Eg employment. There are some areas where I can see it having a huge impact almost immediately like education.

    In other words, if your goal is just marriage equality, you may not care what standard, but if your goal is gay rights, in general, you care.

  7. nonapologies says

    Here’s one example of where I think it would matter:

    “Lesbian, gay, bisexual, and transgender youth should have the freedom to be open (or not) about their identity and ideas in schools and government facilities. The ACLU LGBT Project strives to protect their right to be safe and visible, and to have their identity embraced rather than belittled or erased.

    We help students protect their right to free expression, to establish gay-straight alliance clubs, and to be taught in an environment respectful of their sexual orientation and gender identity. Students should always feel free to contact us with legal concerns.”

    The actions of the schools would then have to be defended under heightened scrutiny more so than if it were not because they could always have a more “rational” argument that the real issue is disruption caused by them being LGBT rather than whether the kids feel comfortable to be who they are.

  8. says

    @nonapologies: thank you for your question. the scrutiny question is like this: what level of scrutiny should we give STATE ACTION that discriminates on the basis of sexual orientation? its raised in this case because its the one at the Court, but if the Court thinks that antigay discrimination gets heightened scrutiny, heightened scrutiny is applied to every case of antigay discrimination by the state. this is true for any state action that discriminates on the basis of race.

  9. nonapologies says

    Thanks Ari, I am aware of that, but I don’t think a lot of people outside of the practice of law understands the point.

    As my law professor would say, “the law is a dance, and you have to learn the moves and what they mean to understand the next steps in the dance that you are about to see.”

    His point is that many don’t understand the moves and what they mean. While its important to point out to people why the higher scrutiny may help in the case before the court, I think for a lot of gay people who aren’t going to get married, its important to understand why this case matters to them.

    This doesn’t mean marriage equality isn’t important. It means that more people will be affected at this point by discrimination in employment, education and housing, than marriage equality, and its important for us to as a group to understand what will maximize our ability to affect change for all of us.

    A victory where marriage is validated would be great for those getting married. A victory where gays as a class are subject to higher scrutiny would be a victory for everyone- whether one is getting married or not.

  10. disgusted american says

    the part of all this thats gets me is: Our neighbor to the North has had Marriage equality and REAL Equality in ALL Aspects of Canadian Life for ALL its citizens….and what’s thier CREED? AINT “Liberty & Justice for All” ??..and this dammed country can’t GET itself OUT of this BLATANT Hypocracy…and Just DO WHAT’S RIGHT!!!!! Pathetic MeriKKKA – PATHETIC!!!

  11. Lymis says

    “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.”

    Doesn’t this fall down immediately as an argument? If you try to compare same sex couples with all straight couples, it does in fact blur the question.

    But straight couples who cannot procreate – due to age, medical reasons, or injury, for example – are still free to marry, while same sex couples with identical issues cannot, purely because of their gender and orientation.

    So the claim that gay couples are not discriminated against, because they simply can’t procreate is false on its face. Unless all mutually infertile couples are banned from marriage, the discrimination is transparently clear.

    Explain why two gay men or two lesbians cannot narry when a man who has had his testicles removed can marry a woman who has had a hysterectomy, and we can start talking about the fact that the discrimination is based purely on procreative ability.

  12. Jim Tideman says

    @Ari, is the level of scrutiny decided at the time of the arguments or is it deliberated afterward? Thanks and great analysis.

  13. David says

    Scrutiny is the level of review that laws face.

    Rational basis is an easy one and what most laws have to face. The courts simply ask if Congress had a legitimate rational basis for creating this law.

    Strict scrutiny is a much more difficult standard. They don’t ask what Congress was thinking, they ask how this impacts the public. Strict scrutiny for gays would be great because it could be used to strike down essentially all anti-gay laws because they so greatly and negatively impact gays.

    There has to be special circumstances as to why laws are reviewed using strict scrutiny — that is what Ari has outlined with the “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.”

  14. BobN says

    It’s evidence of how far the right has succeeded in framing the debate that anyone even wonders if gay people meet the qualifications for strict scrutiny. By the explanations our opponents give for why we don’t, NO ONE qualifies anymore.

  15. Reality says

    If gay marriage passes it will lift all classes. The mantle of lowest will be bestowed on gays.