LGBT in OT 2012: Will SCOTUS use “rational basis” or “intermediate scrutiny” on DOMA?

November 28, 2012

Supreme Court LGBT(Editor’s note: With the reelection of President Barack Obama and the legalization of same-sex marriage in three states during the same night, 2012 is shaping up to be a significant year for LGBT rights.  With many cases involving such rights seeking review before the Supreme Court, it may also be a significant term at the Court.  Throughout the month of November, Westlaw Insider will be looking at these cases, and how a Supreme Court ruling could impact the nation.)

Week 1: The impact of a Supreme Court decision in Windsor v. U.S (part 1)

Week 2: The impact of a Supreme Court decision in Windsor v. U.S (part 2)

Week 3: Will California’s Prop 8 make it to the Supreme Court?

The first two posts in this month’s series dealt with the implications of the Supreme Court hearing and ruling on Windsor v. U.S.

The ruling struck down Section 3 of the federal Defense of Marriage Act (DOMA), and it did so through holding that laws that discriminate on the basis of sexual orientation are subject to intermediate scrutiny.

Windsor is not the only DOMA ruling seeking an audience with the Supreme Court, however.

For instance, Golinski v. U.S. Office of Personnel Management is a case currently awaiting a decision in the Ninth Circuit Court of appeals after oral arguments were heard in September.

The district court, however, struck down DOMA based on “heightened scrutiny,” which is often used interchangeably with “intermediate scrutiny,” the same level of review used in Windsor to strike down DOMA by the Second Circuit.

Considering that Golinski is still awaiting an appellate decision, it seems highly unlikely that the Supreme Court would hear this case over Windsor.

Another case seeking SCOTUS review is Pedersen v. U.S. Office of Personnel Management

Like Golinski, Pedersen is currently awaiting a decision from the court of appeals (but this one is out of the Second Circuit).

Unlike Golinski, however, the Pedersen district court decision struck down DOMA’s Section 3 using the rational basis standard, instead of the higher intermediate scrutiny standard.

Massachusetts v. U.S. Department of Health and Human Services, a ruling from the First Circuit Court of Appeals, declined to adhere to either the “classic” rational basis standard or the intermediate scrutiny standard, but rather used the standard found in 1996’s Romer v. Evans.

The First Circuit in Massachusetts actually used the same logic as the Pedersen court, but just differentiated between “classic” rational basis and the “rational basis with teeth” used in Romer.

Effectively, then, where Windsor and Golinski are in the “intermediate scrutiny” camp, Pedersen and Massachusetts are in the “rational basis” camp.

Having previously considered the possible implications of a Supreme Court decision striking down DOMA using intermediate scrutiny (see the first two posts in this series), we are left with the following question:

“What are the implications of the Supreme Court striking down DOMA using a rational basis review?”

Assuming that the Court would make such a decision by using Massachusetts as the vehicle (since Pedersen is still awaiting an appellate decision), the exact consequences would be hard to pin down concretely.

Almost certainly, though, a Massachusetts Supreme Court decision would do far less for the advancement of LGBT rights than a Windsor decision, and here’s why:

The Massachusetts decision concluded that the reason it needed to do something stronger than “classic” rational basis review was because of both the discriminatory impact of the law and because of the federal encroachment on “state interests in regulating marriage.”

This is a fairly unique position that was seemingly cobbled together in an effort to strike down DOMA’s Section 3 while limiting the potential impact of such a decision as much as possible (i.e. ensuring that states can retain their same-sex marriage bans).

For example, the Massachusetts opinion cited to “the right of states to define marriage as they see fit” and stated that DOMA’s Section 3 was subject to a higher level of equal protection review because it encroached on that right.

Implicit in this rationale is that it cannot be used again at the state level to challenge the constitutional validity of a ban on same-sex marriage.

Of course, the most conspicuous example of the Massachusetts court’s effort to limit the impact of its decision is the fact that it chose to not classify same-sex relationships as quasi-suspect because “such a classification could overturn marriage laws in a huge majority of individual states” (which the opinion’s author unequivocally classifies as a very bad thing).

If the Supreme Court affirmed such a ruling, LGBT rights advocates would have something to celebrate – the destruction of DOMA’s Section 3 – but such an opinion would not be quite the landmark LGBT rights case as would be found in a Supreme Court affirmation of Windsor.

Although I could be wrong, I believe that it is more likely that the Supreme Court will hear Windsor over Massachusetts (or, perhaps even more likely, both cases will be heard together) for the simple reason that the Supreme Court will want to address the issue of sexual orientation as a suspect classification, and would much prefer to do so with a case that is directly on point.

Luckily, since the Supreme Court is scheduled to consider all of the DOMA challenges on November 30, we won’t have to speculate for much longer as to which cases SCOTUS will hear.