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Same-sex marriage I: The constitutional standard

This is the first article in a four-part series explaining the constitutional controversy, now awaiting the Supreme Court’s attention, over same-sex marriage.   At its private Conference on Friday, the Court is scheduled to consider ten separate petitions seeking review of lower court decisions on that issue.  Eight of the petitions deal with the constitutionality of a 1996 federal law, the Defense of Marriage Act, as it applies to gays and lesbians who are already legally married under state law.  One petition deals with a similar state law adopted in 2009 in Arizona for state employees.  And the tenth involves the constitutionality of California’s “Proposition 8,” a voter-approved ban on same-sex marriage in that state.  Today’s first article in the series deals with the choice of a constitutional “standard of review” — that is, the test to be used to judge the validity of any of these laws.  Later articles in the series will deal with the legal arguments for and against same-sex marriage, and with the options the Justices have as they consider the ten petitions.


Over the years, and particularly in the last quarter-century, the Supreme Court has issued a number of significant rulings on gay rights, focusing on laws that were challenged as discriminating against individuals because of their sexual identity as gays or lesbians.   In none of those decisions, however, has the Court settled on a specific constitutional standard to be used in gay rights cases; it managed to decide all of them without spelling out what government must prove to justify a law that treats homosexuals differently, and less favorably.

It is possible, of course, that the Court may decide one or more of the currently pending same-sex marriage cases without adopting a binding standard this time, either.  But that issue is energetically debated by all sides in the cases, so it will not be easy for the Justices to leave it entirely untouched.  Because the cases all involve a variation of arguments about constitutional equality or inequality, the Court is likely in considering a review standard to turn to that branch of constitutional law — “equal protection” guarantees under the Fifth Amendment, for federal laws, and under the Fourteenth Amendment, for state or local laws.

There are now three distinctive standards of review under equal protection analysis, and some decisions have relied upon a fourth standard, not very clear-cut but supposedly workable.

Here are the three most explicit standards:

** Rational basis review:  This is clearly the most tolerant of the equal protection standards.   In order to satisfy that test, a law or regulation need only have a “reasonable” link between what the law declares and a “legitimate” government interest.   Such a law can be understood to have such a “rational basis” even if the legislature that enacted it did not spell out such a reason.  If a court can think up a rational basis for a law that allegedly classifies people in differing ways, that is good enough: the law survives.  The courts most often use this test when judging a law that seeks to regulate commercial activity.

** Heightened scrutiny (sometimes labeled “intermediate scrutiny”):  This is the next step up from “rational basis,” and it is, therefore, a more difficult standard to satisfy when a law classifies people based on some asserted difference between them.  In order to meet this test, the government’s interest must be “important,” and not just “legitimate,” and the link between what the law declares and that government interest must be a “substantial” one, not just “reasonable.”  This is the standard that the Supreme Court has specified for laws that treat women differently than men, based on their gender.  It is sometimes spoken of as the test to be used when a law declares a “quasi-suspect classification.”   (“Suspect” in this sense does not mean suspicious; it means a social grouping that has a distinctive identity, whose identity does not affect its capacity to contribute to society, that has suffered a history of discrimination, and that has a comparative lack of political power so that it cannot easily obtain protective laws.)

** Strict scrutiny: This is the top-tier standard.  A law that must satisfy this test is not necessarily always doomed to be struck down, but it must come close to being truly necessary to achieve a government policy goal of the highest order, if the law at issue is to survive.  The government interest at stake must be “compelling,” and not just “substantial,” and the method chosen to serve that interest must be “narrowly tailored” to do so.  It is used when a law creates a “suspect classification.”  It is the test that is used to protect individual rights that are considered “fundamental” to society; it has long been used to judge laws that treat people differently and less favorably on the basis of their race, country of birth, country of citizenship, and religion.  The Supreme Court over the years has issued conflicting decisions on whether poverty is to be in this category; the more recent decisions discount this.

Is there a fourth standard?  The Supreme Court sometimes has hinted that there is, and some lower courts have occasionally applied what is called a “rational-plus” standard of review.   It is clearly fuzzier than any of the other three levels of review, and so it frequently comes in for criticism as unworkable in practice and unconvincing in theory.  This approach has been derided as “heightened scrutiny light.”  Logically, it falls somewhere between “rational basis” and “heightened scrutiny.”  Using that test, a court will look more skeptically at the claim that a law serves a “rational” government policy, and will demand a bit more proof that there is a link between the differing treatment imposed and the government objective.  A court’s use of such a standard can be confusing, especially when the court insists that it is, in fact, only judging by a “rational basis” test.

At this stage in the development of a “gay rights strategy,” to advance the cause of equality for gays and lesbians, there is no strong push to get the courts to adopt the top-tier standard, “strict scrutiny.”  Few legal analysts would argue that homosexual equality qualifies as a “fundamental” constitutional right, so it is thus hard to treat a law treating homosexuals less favorably as creating a “suspect classification.”

But the other three standards — “rational basis,” “heightened scrutiny,” and some variation of “rational-plus review” — are the competing standards that are now being debated before the Court in the same-sex marriage cases.  In fact, the lower courts whose decisions are now up for potential review have not agreed on a standard, and each of the three levels has been applied in one or more of the cases.   As the pending cases developed, though, each of those standards was used in decisions striking down the three laws at issue: the federal Defense of Marriage Act (DOMA, for short), Arizona’s similar “Section O” law on benefits for married state workers, and California’s “Proposition 8” banning same-sex marriage.

The Obama Administration’s views have undergone change, as it dealt with court challenges to DOMA.   Originally, it fully defended the constitutionality of  DOOMA under a “rational basis” test, and did not dispute precedents of Circuit Courts that had adopted that standard.  Anytime DOMA was challenged, the Administration went to bat for it.  But in February of last year, it switched: it notified Congress that it would no longer defend the constitutionality of the key provision of DOMA that has been under challenge: Section 3.  That section provides a federal definition of marriage, for all purposes, as the union only of one man and one woman.  More than one thousand provisions of federal law, including many that provide benefits based on marriage, do not now apply to same-sex couples even though they are legally married under a state law that permits it.

In switching, the Administration also embraced a “heightened scrutiny” standard.   Gays and lesbians, Congress was told, satisfy the criteria that justifies that standard: they have a history of discrimination, they have a characteristic that is part of their human profile and that they can’t change, they are both a minority and are relatively lacking in political power, and their group characteristic as homosexuals has no effect on their ability to contribute to society.   DOMA’s Section 3, the Administration now argues, cannot satisfy “heightened scrutiny,” and is thus unconstitutional.  In recent months, the government has been urging the Court to accept cases that will present the standard-of-review choice in a clear way.

With the federal government no longer willing to defend DOMA, the Republican leadership of the House of Representatives has taken up the defense in courts from coast to coast.   It argues that DOMA is to be judged by only a “rational basis” test, and that, in fact, numerous federal courts had applied that very test and upheld DOMA’s Section 3 in the early years after it had gone into effect and came under the initial round of constitutional challenges.  There is no basis, the House GOP’s chiefs have said in court papers, for ramping up the constitutional standard to any higher level.

Some gay rights advocates have been content to have DOMA judged under the “rational basis” standard, because they believe that discrimination based on sexual identity simply has no basis in reason and usually can be traced to hostility to gays and lesbians.  But they would certainly be elated if the Court were to embrace a more rigorous test, especially if that would help ensure the end of DOMA Section 3.

The Court has wide discretion to choose a constitutional standard of review, and might well be persuaded that, with the rising intensity of the national debate over gay rights, the time has come for the Court to settle on a definitive test to guide lower courts, and lawyers, from this point on.

Tomorrow: Part II, the legal arguments in favor of same-sex marriage.



Recommended Citation: Lyle Denniston, Same-sex marriage I: The constitutional standard, SCOTUSblog (Nov. 27, 2012, 12:02 AM),