Paul Smith is a Partner in the DC office of Jenner & Block.
So at long last the day has arrived. The Supreme Court has issued its rulings on the Defense of Marriage Act and Proposition 8. And they opted for an incremental approach, addressing DOMA using a rationale that will not pre-determine the outcome in future marriage cases (though it will certainly be influential), while avoiding the merits in Perry. That is not surprising. To the contrary, it is consistent with how Justice Kennedy, Justice Ginsburg and likely others believe the Court should address controversial and divisive issues. They know the Court must be willing to decide those questions at times if it is to play its proper role in our governmental structure, but they do not want the Court to get too far out ahead of the country.
Many had hoped that the Court would determine, once and for all, whether some form of heightened equal protection scrutiny applies to laws that discriminate on the basis of sexual orientation. In two prior cases, Romer v. Evans and Lawrence v. Texas, the Court had not addressed that question, concluding that the unconstitutionality of the laws at issue was clear regardless of the level of scrutiny. And the same proved to be true today. Once a majority of the Court decided that the right thing to do at this moment of history was to vacate the Ninth Circuit’s Perry decision on standing grounds, there was no need for the Court to address the question of the right level of scrutiny for discrimination based on sexual orientation. With the issue narrowed to the constitutionality of DOMA, the more muscular form of rational basis scrutiny applied in cases like Department of Agriculture v. Moreno, Cleburne v. Cleburne Living Center, and Romer was fully sufficient to the task.
This was true for two reasons. First, DOMA fits the paradigm of a law that raises major concerns that it was the product of animus. The legislative record makes this clear. It is chock full of statements reflecting the fact that the primary motivation of the law was a desire not to treat same-sex married couples equally because of disapproval of their marriages and, indeed, disapproval of their sexual and family choices. That does not mean that every member of Congress who voted for DOMA, or the President who signed it, was homophobic. But it does mean that there was enough animus swirling around to demand, under Romer, Cleburne and Moreno, a more convincing showing of an actual legitimate federal interest underlying the law than is usually demanded in rational basis cases.
Second, when one tries to come up with some such rational justification for DOMA’s discrimination against same-sex marriages by the federal government, it is extremely difficult to do so. Contrary to Justice Scalia’s claims in his dissent, it is simply not true that there are “many perfectly valid – indeed downright boring – justifying rationales for this legislation.”
Consider the two examples he gives. The first involves the choice of law issues that arise when a same-sex couple, lawfully married in one state, moves to another that does not recognize that marriage. Are they married for federal purposes? No doubt, that can be a complicated question, although the answer will come law by law based on rules developed years before same-sex couples began to marry. What matters for present purposes is that this choice of law concern does not begin to make DOMA rational because the Act is vastly overbroad to accomplish the asserted rationale. DOMA is a blunderbuss solution to a problem that arises only with respect to a small percentage of married same-sex couples who choose to move to non-recognition states. This rationale does not come close to justifying non-recognition of the marriages of the large majority of married same-sex couples who choose to live where their marriage is state-recognized. Put differently, there are a variety of potential solutions to this non-recognition problem that do not include a flat refusal to recognize all marriages of same-sex couples. One solution would be to pass a law saying that the federal government will recognize for all purposes a marriage validly performed in any of the 50 states. That is what the proposed Respect for Marriage Act would do. Alternatively, a law could say that the controlling factor in all cases is the law of the couple’s current state of residence. That would be a less desirable outcome to be sure, but far better than a rule of non-recognition for everyone. The fact that the choice of law problem is readily solvable without imposing massive hardships on same-sex couples nationwide undercuts the plausibility of this supposed interest.
Justice Scalia’s other proposed rationale was “preserv[ing] the intended effects of prior legislation against then-unforeseen changes in circumstance.” In other words, the claim is that when Congress passed laws referring to marital status (such as the marital exception to the estate tax), it may not have anticipated that states might someday marry same-sex couples. According to Justice Scalia, the interest served by DOMA is to prevent federal law from recognizing those unforeseen marriages. That is no rationale at all. The choice to exclude married same-sex couples from rights and benefits under federal law must be justified, whether that choice was made explicitly by the Congress that enacted DOMA or implicitly by an the earlier Congresses that enacted the federal programs that DOMA amends. Simply stating that the 1996 Congress was deferring to or preserving the judgments of earlier Congresses is not enough to exempt those earlier judgments from constitutional scrutiny.
The fact that Justice Scalia chose these two unconvincing rationales is reflective of the absence of better one. Paul Clement, in his valiant effort to find a way to defend this law, went even further – suggesting at times that non-recognition of marriages of same-sex couples serves the purpose of protecting the children of heterosexual couples, because those couples are more likely to marry when an unexpected pregnancy occurs if the institution of marriage is not extended to gay men and lesbians. Now that is a creative justification of a law that withholds important federal protections from actual married couples, with actual children, who just happen to be same-sex couples, while readily providing them to heterosexual couples who do not or cannot have children.
What this discussion also shows is that if the Court had applied any form of intermediate or strict scrutiny, the outcome would have been clear. Even the defenders of DOMA suggested only in the most half-hearted way that it could withstand that level of scrutiny. Clearly the Windsor majority did not want to reach that issue, because the arguments for heightened scrutiny are compelling and because deciding that heightened scrutiny applies would have effectively ended the entire marriage debate nationwide. But they knew that the issue could not be avoided except through a decision like the one Justice Kennedy produced – applying “heightened” rational basis scrutiny. We filed an amicus brief in the case for Lambda Legal and the Gay & Lesbian Advocates and Defenders making clear that DOMA could be invalidated through application of such a standard.
Turning to Perry, what should one make of the decision to avoid the merits altogether? This was one of the options the Court had for taking an incremental approach to that case as well. The alternatives would have been to dismiss the writ of certiorari or to reach the merits but decide the case on grounds narrowly relevant just to California or to a handful of states. I think the majority chose this approach primarily because the argument against standing was pretty strong – as laid out in the Walter Dellinger amicus brief authored by Irv Gornstein. California could have given the proponents some sort of official status as its representatives. But it did not do that. The standing outcome also leaves very little law about marriage equality in place. The decision of the Ninth Circuit will be vacated and the Supreme Court will not have addressed anything about the question whether states have to marry same-sex couples. But that outcome still likely means that Proposition 8 is a dead letter and marriage equality will return to California – a huge victory in itself.
So it was a day for incrementalism. But also a day when the movement toward equality for LGBT citizens gained considerable momentum. We will now likely see a substantial increase in efforts to win marriage equality in lots of other states, both through political and through legal means. And we will see continued progress.