Is it Time for the US Supreme Court to Come Out of the Closet?

Karl Laird 24th July 2013

In a follow-up post to his previous analysis of Windsor v. United States, Karl Laird examines which constitutional provisions were invoked in the US Supreme Court decision.

Now that a few weeks have passed since the US Supreme Court delivered judgment in Windsor v United States, it seems appropriate to attempt to ascertain what exactly the majority decided. While we know that the Court invalidated section 3 of DOMA, what constitutional provisions were invoked?

In an earlier post, I said it was unfortunate that the majority did not articulate the standard of review DOMA was subjected to. This, however, presupposes that DOMA was invalidated for violating the right to equality in the Fifth Amendment. Was this the rationale invoked by the majority and if so, why did they avoid the question of what standard of scrutiny they applied?

Answering the former question first, Justice Kennedy says DOMA injures a class of individuals that those states in which same sex marriage is lawful sought to protect. He cites his earlier judgment in Romer v Evans and says  the state cannot enact legislation disadvantaging a particular group solely on the basis of animus and /or moral disapproval. It appears that Justice Kennedy is invalidating section 3 DOMA for failing even rational basis review. This might indicate that he does not think gays and lesbians constitute a quasi-suspect class. However, Justice Kennedy seems to contradict this supposition when he later says DOMA requires ‘careful consideration’, which could indicate a more rigorous standard of scrutiny.

The judgment also references the ‘liberty of the person’, protected by the Due Process Clause of the Fifth Amendment. Justice Kennedy states DOMA causes same sex couples injury and indignity, which constitutes a deprivation of their right to liberty. So, the majority seems to invalidate DOMA on the basis that it is contrary to the Constitution’s guarantees of the right to equality and liberty. This is not so unusual. In discussing Justice Kennedy’s earlier judgment in Lawrence v Texas,Larry Tribe argued that the two rights coexist in a ‘legal double helix’. Even if the majority in Windsor based their decision partly on the right to liberty, it is evident substantial weight was placed upon an equal protection analysis.

So why the obfuscation over the standard of scrutiny? The majority was faced with two options, neither of which might have been thought entirely satisfactory. Firstly, they could have held that DOMA failed even rational basis review. This would have enabled the majority to avoid the controversial issue of whether gays and lesbians constitute a quasi-suspect class. When a measure is subject to rational basis review the question is whether the enactment is rationally related to a legitimate governmental interest. However, ‘legitimate reason’ does not refer to the actual reason proffered by Congress for the enactment of the measure. Rather, it asks whether there is, ‘any conceivable state of factsthat could provide a rational basis for the classification.’ This would mean that it was not entirely appropriate for the majority to rely upon observations made by Congressmen who supported DOMA to demonstrate that they were motivated by animus towards gays and lesbians in enacting it. The question for the justices would be whether they could think of any rational basis for DOMA. It could be argued that DOMA is so pernicious that it fails to cross this low threshold, although perhaps some legitimate interest could be thought of that section 3 is rationally related to.

The second option was to explicitly hold that gays and lesbians constitute a quasi-suspect class. This would have meant subjecting DOMA to heightened scrutiny, under which actual legislative intent would have mattered. This is what the majority should have done, as it would have given clear guidance to lower courts and would have made for a conceptually and doctrinally more satisfying decision. However, the Court for some time has refused to add new groups to the list of quasi-suspect classifications. Even if it was willing to do so here, there is difficulty in ascertaining what characteristics a group needs to have to be added to the list.

In Windsor,the majority should have held that measures aimed at gays and lesbians ought to be subject to heightened scrutiny. This would have explicitly recognized that gays and lesbians have suffered from a history of discrimination and require the benefit, in equal protection terms, that heightened scrutiny affords. A brief perusal of LGBT youth suicide rates demonstrates discrimination is not a thing of the past. While Windsor’s place in the pantheon of great Supreme Court decisions seems assured, this will be because of its immediate practical impact, rather than because it has brought clarity to an area of the law fraught with difficulty.

Karl Laird is a Lecturer at Pembroke College, Oxford and a regular contributor to the OxHRH Blog.

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