The Flaw in the Republicans’ DOMA Argument

The first brief has been filed in United States v. Windsor, the Supreme Court case that will decide whether the Defense of Marriage Act, is constitutional! I know you are all as excited as I am. The brief can be found here. The brief was filed by a legal team set up by the US House of Representatives, and argues that DOMA should be upheld.

As you may recall, my last post described the argument made in favor of upholding Proposition 8. The House’s DOMA brief takes essentially the same side as the previous brief: they both oppose same-sex marriage (don’t worry, the briefs on the other side are coming).

The argument that there is no constitutional right to same-sex marriage begins with the premise that all the Supreme Court needs to find is that the law is a rational means of serving a legitimate end. That is a very low standard, and DOMA can probably meet that standard.[1] So, the brief in support of DOMA spends more time discussing whether the rational basis test is the correct standard to start with.

The Court does have an alternative. It could examine the cases using intermediate scrutiny. If it does, in order to uphold laws defining marriage as between one man and one woman, the government would have to demonstrate that those laws further an important governmental interest in a way that is substantially related to that interest. If the Court applies the intermediate scrutiny standard, the result will almost certainly be a constitutional right to same-sex marriage in all 50 states.

The Court decides which level of scrutiny to use based on the nature of the group of people being discriminated against. The highest form of scrutiny is basically reserved for divisions based on race (which makes sense because the 14th Amendment was adopted right after the Civil War).

But intermediate scrutiny, which applies to laws that draw distinctions based on gender or legitimacy of birth, might be applied to distinctions based on sexual orientation. The Court looks to four factors in order to determine whether laws discriminating against a certain group of people should be reviewed under heightened scrutiny.

The House’s brief examines each of these four factors, but they place the most emphasis on the first one. For that reason, I will also focus on the first one, and save my discussion of the remaining three for a later date.

The first factor is whether the group in question (here, the LGBTQ community) is politically unpopular. The House’s brief argues that the LGBTQ community has a lot of political clout, so they should not receive special treatment by the courts. As evidence, the brief points to the fact that there are now nine states that recognize same-sex marriage. The LGBTQ community is well funded, relatively politically popular (the brief sites a statistic that 53% of adults now support same-sex marriage) and has a large, organized lobbying structure.

Here is the problem with that argument: a similar argument could have been made about racial and ethnic minorities in 1867 (when the 14th Amendment was adopted) or about women now. In 1867, the North had just fought a war at least partially to abolish slavery. Supporters of equal rights were popular nationally and held extremely important positions, including several cabinet positions, as well as the position of Chief Justice. And even if racial and ethnic minorities did not have influence then, they certainly do now. Take Jews and Latinos as examples. AIPAC is one of, if not the, most well-funded and powerful lobby groups in the country. The Latino vote just turned what would have been a close election into a fairly sizable victory for President Obama, forcing Republicans to address how to obtain their votes by considering a pathway to citizenship.

Similarly, women constitute an outright majority of the American population. If only men voted in 2012, Mitt Romney would be President.

Of course, none of this is to say that discrimination against these groups doesn’t exist. It is just to say that these groups have substantial political influence.

So, why are racial and gender distinctions treated with heightened forms of judicial scrutiny? Because while those groups have substantial national political influence, they are still subject to discrimination. In 1867, a black man in Massachusetts may have been protected by something close to equal treatment under the law. But he would not have had the same protection in Mississippi. Today, a woman might receive equal treatment when a promotion comes available in the Department of State, but perhaps not in the Department of Defense.

So, yes, the LGBTQ community has some political influence, but that factor alone shouldn’t disqualify that group from heightened scrutiny under the Equal Protection Clause. Just like that black man in 1867, a gay man may receive equal protection under the law in Massachusetts today, but I doubt he would in Mississippi.

[1] More on this in a future post.

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