By Karl Laird

In an important judgment, Windsor v United States the Court of Appeals for the Second Circuit considered whether section 3 of the Defence of Marriage Act 1996 (‘DOMA’) violates the Fifth Amendment’s guarantee of equal protection. 

Section 3 of DOMA states:

“[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

A majority of the Court struck down s.3 in an analysis that proceeded in two stages.  Firstly the Court considered whether s. 3 of DOMA was subject to heightened scrutiny for the purposes of the equal protection clause or whether it was merely subject to rational basis review.  Then the Court examined whether s.3 survived the requisite level of scrutiny.

Writing for the majority, Chief Judge George held that s.3 was subject to heightened scrutiny.  It was noted that the Supreme Court utilises certain factors to determine whether a new classification qualifies as a quasi – suspect class.  The factors that were listed to decide whether a new classification so qualifies were listed as follows;

1. whether the class has been historically subjected to discrimination;
2. whether the class has a defining characteristic that frequently bears a relation to 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 is politically powerless.

The Chief Judge examined these four factors and concluded that each was present in the case of gays and lesbians as a class and thus review of s.3 of DOMA required heightened scrutiny.

In the next stage of the analysis the Court considered whether s.3 of DOMA survived intermediate scrutiny review.  To withstand intermediate scrutiny, a classification must be ‘substantially related to an important governmental interest’.  Two primary arguments were advanced as to why Congress enacted DOMA.  The first was that there was an interest in maintaining a consistent federal definition of marriage and by so doing preserving government resources by limiting the beneficiaries of government marital benefits and also preserving a traditional understanding of marriage.  The second was the encouragement of ‘responsible procreation’.  The Chief Judge gave short shrift to each of these justifications and indeed counsel for the defendant conceded in the course of the proceedings that s.3 of DOMA would be unlikely to withstand heightened scrutiny.

The dissent of Judge Straub is valuable in that it highlights why this case is of such importance.  Judge Straub did not agree with the majority that sexual orientation is a quasi – suspect class and as such in his view s.3 of DOMA merely had to withstand rational basis review.  This it easily did.  In his judgment, Judge Straub made the point that DOMA has never been held by the Supreme Court or any other Circuit Court to involve a suspect or quasi – suspect classification.  Indeed at every opportunity it has had to do so, the Supreme Court has avoiding having to determine whether gays and lesbians are a suspect class, first in Romer v Evans and then in Lawrence v Texas.  So in this sense Windsor marks a significant departure from existing authority in that sexual orientation was held to constitute a quasi-suspect class.

The case does not necessarily end there however, as the defendants have appealed to the Supreme Court.  At last count there were ten cases concerning same sex marriage before the Court and the Justices will consider all ten petitions at their private Conference on November 30.  Windsor is unique however in two senses.  Firstly, it struck down s.3 in the widest possible terms and secondly the Solicitor General has urged the Court to hear Windsor as the Government’s preferred case for reviewing the constitutionality of DOMA.  It remains to be seen whether the Supreme Court will grant the petition in Windsor or alternatively in one of the other pending cases.  Even if Windsor is not heard by the Supreme Court, it remains significant for its novel determination that gays and lesbians constitute a quasi – suspect classification for the purposes of the equal protection clause.

Karl is a Lecturer in Law at Pembroke College, Oxford.