On Thursday, Oct. 18, the Second Circuit Court of Appeals ruled that the so-called Defense of Marriage Act (DOMA) is unconstitutional. The Second Circuit was not the first appeals court to strike down DOMA, however. The First Circuit Court of Appeals found DOMA unconstitutional in May. But the difference between the two legal opinions may mark the beginning of an important legal shift that holds extraordinary promise for the LGBT community.
The first decision evaluated DOMA under what is known as "rational basis review." This standard is very low. Typically, this level of judicial review is more or less a rubber stamp for legislation. When it comes to gay rights, courts have used this type of analysis to strike down some anti-gay laws. Using rational basis review, courts have said that disliking the LGBT community is not a rational justification for discriminating against sexual minorities. This is how the United States Supreme Court ruled in Lawrence v. Texas that anti-sodomy laws are unconstitutional, for example.
When it comes to marriage equality litigation, rational basis isn't ideal. Rational basis was used to invalidate Proposition 8 in California, but in Hawaii a federal judge said that Hawaii's same-sex marriage ban was rational, especially given Hawaii's civil union law. When state courts, like those in Iowa and California, have invalidated bans against same-sex marriage under state constitutions, they have used more intense forms of analysis, including the tougher "intermediate" and, tougher yet, "strict" scrutiny. Under these levels of scrutiny, it is much harder for the government to justify discriminatory laws, and as a result they are more easily invalidated by courts.
Not all groups can get the type of heightened protections under the Constitution that are already afforded to groups like racial minorities and women. Courts consider a number of factors to determine what groups get heightened scrutiny. Four factors are typically considered: 1) whether the class has been historically subjected to discrimination; 2) whether the class has a characteristic that bears a relation to its ability to perform or contribute to society; 3) whether the class exhibits obvious, immutable or distinguishing characteristics that define them as a discrete group; and 4) whether the class is a minority or politically powerless.
In comes the Second Circuit's recent DOMA decision. The Second Circuit held that all these factors apply to non-heterosexuals. As such, the court concluded that laws that are discriminatory on the basis of sexual orientation must meet the standards of "intermediate scrutiny." The justifications for those laws must be not just rational but "exceedingly persuasive." It was under this more intense level of judicial inquiry that they ruled that DOMA violated the Constitution.
This legal standard, if ultimately accepted by the Supreme Court, would dramatically raise the burden on state governments to defend the constitutionality of laws that discriminate on the basis of sexual orientation, like same-sex marriage prohibitions or adoption bans. Though nothing is set in stone until the Supreme Court makes a final determination on the constitutionality of DOMA and the level of review that applies to sexual orientation discrimination, this development is one that bodes well for the future of LGBT rights.