On October 14, 2011, the Republican members of the US House of Representatives Bipartisan Legal Advisory Group filed a brief in Golinski v. US Office of Personnel Management defending the constitutionality of the federal Defense of Marriage Act (DOMA). The Golinski case is one of several pending actions by federal employees challenging the government's refusal to recognize same-sex marriages that are valid under the laws of the states in which the employees reside. In its brief, the group argued that (1) discrimination on the basis of sexual orientation is subject to the lowest level of constitutional scrutiny, or rational basis review; and (2) under rational basis review, DOMA passes muster. The group's defense of DOMA fails on both counts.
Courts should be presumptively suspicious of discrimination on the basis of sexual orientation, which in legal terms means that "heightened scrutiny," rather than rational basis review, should apply. Laws often draw distinctions between people, and the vast majority of the time those distinctions are fitting and proper. Drivers who exceed the speed limit, for example, are subject to traffic tickets and possible fines, whereas drivers who travel at or below the speed limit are not. In general, a court evaluating the constitutionality of a law considers only whether the law has some rational relationship to a legitimate governmental interest which, as a shorthand, is termed rational basis review. Virtually all laws pass rational basis review. In the speeding ticket example, the purpose of the law is to decrease traffic accidents, and ticketing speeders is a rational way to accomplish that legitimate end. The fact that many or most speeding drivers may not cause traffic accidents is not enough to make the law invalid.
Some types of distinctions, however, trigger heightened scrutiny. Laws or policies that categorize people on the basis of race or gender, for example, must be closely examined to determine whether there is a real and compelling need for the distinction, or whether there are other, less discriminatory ways to accomplish the legislative purpose. Thus, a warden's decision to separate inmates on the basis of race would not be constitutional if the aim was simply to
reduce the potential for conflict generally, but might be permitted in the hours immediately following a race-based riot at the prison.
Broadly speaking, the question of whether to apply heightened scrutiny to discrimination on the basis of sexual orientation depends on how likely such a distinction may be a proper basis for laws or policies. In an era when the last remaining legal differences between gay and straight Americans are fast disappearing (e.g., the repeal of "Don't Ask, Don't Tell" and the invalidation of the last remaining legal proscriptions on homosexual conduct), there is little reason to think that sexual orientation will be a proper basis on which to draw legal distinctions. For example, laws that limited foster care placement to prospective parents without convictions for child abuse would easily pass rational basis review, but should laws that prevent gays and lesbians from adopting children be subject to the same lax standard? Or should we closely examine such laws with the same level of suspicion that would attach to laws that denied interracial couples the right to adopt? The plaintiff in Golinski has the far better argument on this point.
Notably, the group essentially concedes that if heightened scrutiny applies DOMA is unconstitutional. That is the same conclusion reached by the Obama administration. Thus, the group's entire argument in favor of DOMA's constitutionality rests on the premise that the government may discriminate against gay and lesbian Americans just as easily as the government could prohibit young people from moving into a seniors-only retirement community. In other words, if the group is wrong on its rational basis argument then there is no question that DOMA is unconstitutional.
The group's brief is devoted to arguing that DOMA has at least some rational basis to a legitimate governmental interest. Despite the ease with which most laws pass rational basis review, courts have increasingly held that DOMA cannot satisfy even this lowest level of scrutiny because ignoring the otherwise valid marriages of gay and lesbian couples has no rational relationship to any legitimate governmental interest. Ignoring one marriage does not strengthen any other marriages, nor is it a proper way to limit the expenditure of governmental resources, any more than arbitrarily denying recognition of marriages celebrated on a Tuesday.
Beyond the proper standard of review, the heart of the Golinski case is whether the federal government may recognize some valid marriages (those of opposite-sex couples) but ignore other, just as valid marriages (those of same-sex couples). In our federalist system, the law of marriage, divorce, parentage and other domestic relations matters is generally left to each particular state, with the federal government recognizing a marriage as valid if it is valid under the law of the state in which the couple resides. DOMA, however, creates an unprecedented exception to that long-settled rule: marriages between individuals of opposite genders will be recognized as under state law, but marriages between same-sex couples will be disregarded for purposes of federal law. DOMA therefore draws a distinction on the basis of sexual orientation.
Under our constitutional system, the government cannot treat persons who are alike in all relevant respects differently. Legally married same-sex couples are constitutionally indistinguishable from legally married opposite-sex couples. DOMA's irrational insistence to the contrary is not within our constitutional tradition, as it violates the principle laid out in Romer v. Evans that "government and each of its parts remain open on impartial terms to all who seek its assistance."
Robert Pfister is a Partner at Klee, Tuchin, Bogdanoff & Stern LLP, a Los Angeles-based law firm focused on business reorganization and corporate insolvency. He was a member of the litigation team which successfully challenged DOMA's constitutionality in the US Bankruptcy Court for the Central District of California. Pfister obtained his law degree from the New York University School of Law and was recognized as a "Rising Star" lawyer by Southern California Super Lawyers in 2009, 2010 and 2011.
Suggested citation: Robert Pfister, DOMA Fails Under Any Level of Constitutional Scrutiny, JURIST - Sidebar, Oct. 28, 2011, http://jurist.org/sidebar/2011/10/robert-pfister-doma-unconstitutional.php.
This article was prepared for publication by Stephen Krug, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at email@example.com