The U.S. Court of Appeals for the Second Circuit in New York City declared unconstitutional the Defense of Marriage Act (DOMA), a U.S. federal statute that, for purposes of federal law, defines marriage as the legal union of one man and one woman. Willis v. United States, No. 12-2335-cv (2d Cir. Oct. 18, 2012). Just three weeks after hearing oral argument in the case, two judges on a three-judge panel of the appellate court ruled that Section 3 of DOMA, 1 U.S.C. § 7, violates the equal protection principle embodied in the Due Process Clause of the Fifth Amendment of the U.S. Constitution.
EQUAL PROTECTION UNDER THE U.S. CONSTITUTION. In contemporary equal protection analysis, when there is a challenge to a laws or policy that makes distinctions between persons or situations, the court generally will apply one of the following three levels of “scrutiny” to the measure in question.
- Rational Basis. The least rigorous level of scrutiny is the so-called “rational basis” test, under which the law will be upheld if there the distinction is “rationally related” to a “legitimate” government interest.
- Strict Scrutiny. At the other end of the scale is the “strict scrutiny” test, which courts have employed in assessing government justifications for restrictions on fundamental constitutional rights and distinctions among persons based on “suspect classifications” such as race or national origin. To pass strict scrutiny, the law or policy must satisfy three criteria: (1) it must be justified by a compelling governmental interest; (2) must be narrowly tailored to achieve that goal or interest; and (3) it must be the least restrictive means for achieving that interest.
- Intermediate Scrutiny. Between the rational basis and strict scrutiny tests is an “intermediate” level of review, which courts have applied to sex-based classifications and legal distinctions based on legitimacy of birth. To pass intermediate scrutiny, the law or policy under review must further an important government interest in a way that is substantially related to that interest.
CHALLENGES TO DOMA. Currently, a minority of states in the United States recognize the legal validity of same-sex marriages performed within their territory. Multiple court challenges to DOMA are based not only on equal protection principles (the argument that DOMA unlawfully treats similarly situated persons unequally) but also on the principle of federalism (the argument that DOMA’s denial of federal government recognition to same-sex marriages performed in accordance with applicable state law represents an intrusion into a matter traditionally within the exclusive province of state law). Those defending DOMA (a bipartisan coalition of federal lawmakers) have advanced several justifications for the law, including: a federal interest in establishing uniform eligibility criteria for federal marital benefits; a desire to save government resources by limiting beneficiaries for government marital benefits; an interest in preserving a traditional understanding of marriage; and the aim of preserving “responsible procreation.”
THE FIRST CIRCUIT’S DOMA DECISION. On May 31, 2012, in Massachusetts v. U.S. Dept. of Health and Human Services, 682 F. 3d 1 (1st Cir. 2012), the U.S. Court of Appeals for the First Circuit found DOMA unconstitutional. A central issue was which level of scrutiny to apply to the federal law. The First Circuit did not find strict scrutiny appropriate and concluded that, based upon Supreme Court precedent, “extending intermediate scrutiny to sexual preference classifications is not a step open to us.” The court also acknowledged that DOMA would pass the rational basis test. However, it reasoned that “because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.” Therefore, the First Circuit concluded that the case “require[d] a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.” After applying this “closer than usual review,” the court concluded “that the rationales offered do not provide adequate support for section 3 of DOMA.”
THE SECOND CIRCUIT’S DOMA DECISION. In today’s decision, the Second Circuit held that the federal policy of disregarding same-sex marriage should be subject to intermediate scrutiny because —
A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
The Second Circuit examined all of the justifications advanced in support of DOMA but found that none of them justified the federal policy embodied in the Act. The court concluded with the following remarks:
Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status–however fundamental–and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.
NEXT STEPS. A petition for certiorari review by the U.S. Supreme Court is currently pending in the First Circuit’s Massachusetts case. Leading observers suggest that the Court is likely to accept the case and, potentially, settle the matter in a definitive manner.