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There is more than one way to end DOMA

Cert petitions have been submitted to the Supreme Court in three separate cases that call into question the constitutionality of the Defense of Marriage Act (DOMA), a law that denies economic and other benefits to same-sex couples even in states where same-sex marriage is legal.  If the Court decides to hear one or more of them, its ruling could both determine the constitutionality of DOMA and could set a standard for how courts evaluate laws that discriminate against people on the basis of sexual orientation.

Several federal courts have also found DOMA to be unconstitutional, including the U.S. District Court for the Northern District of California and the U.S. Court of Appeals for the First Circuit.  Each of these courts has applied a different level of review to determine whether the law can stand. 

The California decision applied the strictest “heightened scrutiny” test to the statute.  Heightened scrutiny is applied to laws impacting a protected class of people; presuming such laws may have a discriminatory effect, it only allows such laws to stand when they are found to be narrowly tailored in the least restrictive manner to serve a compelling governmental interest.  By applying this test, the court held that sexual orientation constitutes a protected class deserving of special protection. 

The First Circuit applied what the three-judge panel called “closer than usual” review of the law’s discriminatory effects, presuming that there could be some discrimination inherent in the law but balancing that against the interest of the government in passing it. The First Circuit ruling on DOMA’s constitutionality is – so far – the only one by a federal appeals court. 

In New York, Edie Windsor won her legal challenge to the discriminatory statute when she sought to recover hundreds of thousands of dollars in inheritance taxes that she would not have had to pay if the federal government recognized her rights as a spouse. Because Section 3 of DOMA defines marriage as being between one man and one woman, Windsor’s inheritance was subject to estate taxes not levied on heterosexual couples.

In finding DOMA unconstitutional under a rational basis review, the Southern District of New York indicated that no rational reason exists for a law denying same-sex couples the right to marry.  Rather than finding LGBTQ persons are a class in need of special protection by the courts, Windsor holds that DOMA defies common sense and must, therefore, be struck down.

The ACLU, which represented Windsor in court, has petitioned the Supreme Court to bypass the appeal made to the Second Circuit and decide the case themselves.

Windsor is the only case where DOMA failed under the rational basis test.  Rational basis review generally allows a law to stand if there is any possible, conceivable reason that a legislature might have thought a rational reason exists to pass a law. It is a very broad standard; when applied to statutes, they almost always pass scrutiny by the Court. 

The Supreme Court has yet to decide which form of scrutiny applies to discrimination based on sexual orientation.   That the Court will hear at least one of these cases seems almost inevitable.  In addition to the fate of DOMA itself, the Supreme Court’s choice of which case to take could establish a standard for review of laws impacting sexual orientation.