During oral arguments in Hollingsworth v. Perry, No. 12-144 (U.S. Sup. Ct., June 26, 2013) (.pdf file), the case attacking California’s Proposition 8, Justice Antonin Scalia asked a sarcastic question:
I’m curious. When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted? When did the law become this?
Wednesday, a majority of the Court provided at least a partial answer to that question in United States v. Windsor, No. 12-307 (U.S. Sup. Ct., June 26, 2013) (.pdf), which struck down Section 3 of the federal Defense of Marriage Act.
Windsor dealt with the Fifth Amendment’s Due Process Clause, as opposed to the Equal Protection Clause of the Fourteenth Amendment, but the Court long ago acknowledged that Fifth Amendment due process includes an “equal protection component” applicable to the federal government. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954). So, in Windsor, the Court relied on equal protection analysis when it reached this conclusion with regard to Section 3 of DOMA:
The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.
Windsor, slip op. at 25-26.
In other words, the Court is saying that no rational basis exists for the federal government to deny benefits to same-sex couples lawfully married under state law, and therefore Section 3 of DOMA violated the equal protection component of the Fifth Amendment’s Due Process Clause. In so doing, the Court essentially answered Justice Scalia’s question with regard to “when [it became] unconstitutional to exclude homosexual couples from marriage.”
Let me explain. A lot of people – including, apparently, Justice Scalia – seem to labor under the misapprehension that the concept of “equal protection under the law” embodied in both the Fifth and the Fourteenth Amendments prohibits government discrimination only on the basis of “suspect” classifications like race or gender, and, as yet, the Court hasn’t declared sexual orientation to be a suspect classification. In fact, though, the Equal Protection Clause itself makes no reference to race, gender, or any other classification at all. What is says is:
No State shall … deny to any person within its jurisdiction the equal protection of the laws.
So the Equal Protection Clause, on its face, is a more general prohibition against the government engaging in discriminatory treatment of similarly situated people or groups of people. The Supreme Court has traditionally subjected government discrimination on the basis of, say, race or gender, to a higher level of judicial scrutiny than other forms of discrimination, but that does not mean that discrimination on bases other than race, gender, and the like, will necessarily pass equal protection muster.
As the Court explained in City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976):
Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.
Stated differently, any form of discrimination that’s not “rationally related to a legitimate state interest” will violate equal protection, even if it’s not based upon a suspect classification. More directly, in Roemer v. Evans, 517 U.S. 620 (1996), the Court said, “[b]y requiring that [a non-suspect] classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.”
So, when the Court said in Windsor that Section 3 of DOMA is “invalid” because “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” slip. op. at 25-26, the Court is saying that Section 3 failed under the “rational basis” test. Now, the Court also said, “[t]his opinion and its holding are confined to those lawful marriages” (id. at 26) – i.e., marriages between same sex partners that are legal under state law – in an apparent attempt to limit the effect of its ruling. But it’s hard to see how the rationale of Windsor wouldn’t apply equally to laws prohibiting gay and lesbian couples from entering into marriage on the same terms as heterosexual marriages.
Circling back, then, to Justice Scalia’s question about the Fourteenth Amendment: Equal protection has always banned irrational discrimination in the law; and if there’s no rational basis to discriminate against gay and lesbian couples in marriage laws … well, there’s your answer.
It’s unfortunate, though, that the Court in Windsor didn’t adopt the Obama Administration’s position with regard to marriage equality. As the Court noted:
While the [underlying] suit was pending, the Attorney General of the United States notified the Speaker of the House of Representatives, pursuant to 28 U. S. C. §530D, that the Department of Justice would no longer defend the constitutionality of DOMA’s §3. Noting that “the Department has previously defended DOMA against . . . challenges involving legally married same-sex couples,” App. 184, the Attorney General informed Congress that “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny.” Id., at 191.
Windsor, slip op. at 3 (emphasis supplied).
Indeed, he did. You can read the Attorney General’s letter to Speaker Boehner here. In it, the Attorney General explains:
The Supreme Court has … rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).
Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation.
It’s well worth taking the time to read the entire letter.
In any event, because DOMA’s Section 3 could not even pass the rational basis test, Windsor was not the case to determine whether anti-gay discrimination should be subject to heightened scrutiny like discrimination on the basis of race and sex, and so that remains an open question. It’s nice to know, though, that our President thinks it should.