SCOTUS’s standard of review in Windsor will determine the future of same-sex marriage

January 2, 2013

Supreme Court LGBTBack in November, I wrote about how the Supreme Court’s choice of case challenging the federal Defense of Marriage Act (DOMA) would impact which standard SCOTUS would use to review the law: “rational basis” or “intermediate scrutiny.”

The Supreme Court chose the review the “intermediate scrutiny” one, U.S. v. Windsor; that doesn’t necessarily mean that the Court will use that standard when reviewing DOMA.

There are actually three possible outcomes from three possible standards: the earlier mentioned two, plus “heightened rational basis” (also known as “rational basis with teeth”).

First, a quick overview of all three:

“Intermediate scrutiny,” which is what the Second Circuit applied to DOMA, requires that the government must have an “important interest,” and that the discriminatory law furthers that interest in a “substantially related” way.

The garden variety strain of “rational basis” is fairly lenient – the government must have some “legitimate” reason for the law, and this reason must be “rationally related” to it;  courts often conjure up “legitimate” reasons of their own on behalf of the government, so it is extremely rare that a law is struck down under this standard.

The vast majority of circumstances that laws actually are struck down under a rational basis review is under the so-called “heightened rational basis.”

The most famous use of this is the Supreme Court’s 1996 decision Romer v. Evans, which held as unconstitutional a Colorado state constitutional amendment that forbade any governmental entities from prohibiting discrimination based on sexual orientation.

Justice Kennedy, writing for the majority, held that the challenged amendment could not withstand rational basis review because its sole purpose was to discriminate against individuals on the basis of their sexual orientation – an inappropriate “reason” for rational basis.

The reason that this is called “heightened” rational basis is because, technically, the law could have survived traditional rational basis scrutiny, but the Court wanted to strike the law down because it targeted a specific minority group for discrimination, but it did not want to extend intermediate level scrutiny protections to that same group.

Since Romer, heightened rational basis has been the standard level of review for laws discriminating on the basis of sexual orientation; will that change with Windsor?

I can say with some certainty that it will not change to traditional rational basis.

Since traditional rational basis is the only standard that could allow DOMA to survive, this means that the Court will almost certainly strike down Section 3 of DOMA.

So why does it matter which of the two remaining standards the Court uses? To determine the full extent of marriage rights to which same-sex couples are entitled.

If the Court uses heightened rational basis, its Windsor opinion could greatly resemble the First Circuit’s in Massachusetts v. U.S. Department of Health and Human Services, which, while it struck down Section 3 of DOMA, effectively insulated states from any legal challenges to their own bans on same-sex marriage.

Although heightened rational basis gives the Court a lot of room to work with, it’s unlikely that the Court could use this standard in Windsor without preserving state same-sex marriage bans; if it were to go that far, it would just switch to intermediate scrutiny.

Thus, if the Court wants to strike down Section 3 of DOMA without opening up any challenges to state same-sex marriage bans, it will use heightened rational basis.

If the Court uses intermediate scrutiny, however, same-sex marriage bans are headed for the dustbins of history, even if the Court makes no mention of them in Windsor or Perry (the Prop 8 challenge).

The reason for this is simply that the rationales behind DOMA’s Section 3 are nearly identical to any that would likely be used to defend any state same-sex marriage bans, and if none of them were sufficient to pass intermediate scrutiny in Windsor, they definitely won’t save any state bans from invalidation.

It’s possible, of course, that the Court would use intermediate scrutiny while explicitly insulating state bans from legal challenge, but I covered that prospect in a post a few months back; here’s the short version:

  1. Windsor opens up successful challenge to DOMA’s Section 2 (which allows states to refuse to recognize same-sex marriages from other states).
  2. Without Section 2, all states must recognize same-sex marriages from other states, even if the practice isn’t legally sanctioned in the recognizing state.
  3. The result: same-sex marriages are legal nationwide.

Although we won’t know for certain which standard the Court will use until the Windsor opinion is announced, we might see some hints at oral arguments (plus, I already have my own prediction that I will get into in a future post).

Whichever standard SCOTUS uses, however, will have a major impact on same-sex marriage rights.