The Price of Minimalism: Same-Sex Marriage and Judicial Confusion Commentary
The Price of Minimalism: Same-Sex Marriage and Judicial Confusion
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JURIST Guest Columnist Julie Nice of the University of San Francisco School of Law says that the Supreme Court’s minimalist approach in its gay rights pronouncements has led to the current confusion among courts and lawyers alike over the proper level of scrutiny to apply to same-sex marriage issues…

The US Supreme Court’s minimalism in its major gay rights pronouncements is causing quite the hullabaloo among lower courts and leading lawyers attempting to manage the current cases challenging the federal Defense of Marriage Act (DOMA). As it tiptoed into the gay rights arena, the Supreme Court went to considerable trouble to avoid determining whether discrimination based on sexual orientation is a “suspect classification” in Romer v. Evans and whether the right to same-sex intimacy is a “fundamental right” in Lawrence v. Texas. In both groundbreaking decisions, the Court concluded that state laws infringing constitutional guarantees of equality or liberty on the basis of sexual orientation failed even rational basis review, without addressing whether heightened judicial scrutiny was appropriate.

Now the federal courts are in a dither over the proper level of scrutiny to apply to governmental refusals to recognize lawful same-sex marriages. Some courts are simply following the Supreme Court’s lead and holding that such discrimination fails even rational basis review, a result commonly referred to as rational basis “with bite.” Other courts are considering the regular factors for determining whether a classification is either fully suspect (and thus subject to strict scrutiny) or at least quasi suspect (and thus subject to intermediate scrutiny).

Of course when courts actually address the routine factors for determining whether a classification is suspect, judges find themselves hard-pressed to deny that homosexuals have suffered historical discrimination, that they comprise a small minority which continues to struggle to protect itself in the political process, and that sexual orientation is a characteristic both integral to personal identity and irrelevant to an individual’s ability to contribute to society. Perhaps the Supreme Court has avoided its own well-established suspect classification criteria precisely because this threshold analysis points so definitively to heightened judicial scrutiny. But avoidance has its own costs, as we are learning.

Even the leading lawyers sound flummoxed as they plead for the Supreme Court to clean up its mess. Consider the characterizations crafted by Paul Clement, the prominent conservative lawyer representing the three Republicans from the five-member leadership group of the House of Representatives known as the Bipartisan Legal Advocacy Group (BLAG). Clement is urging the Supreme Court to review the US Court of Appeals for the First Circuit’s recent rational-basis-with-bite invalidation of DOMA. Clement insists that the First Circuit “invented” what he repeatedly characterized as an “entirely novel” form of scrutiny when it invalidated DOMA without first determining that sexual orientation is a suspect classification — a result with a “sweeping impact” that “should have been impossible.”

What has the First Circuit done to deserve this thrashing? It simply followed the Supreme Court’s lead in Romer, which is what several federal district courts have done in other DOMA cases. In addition to the First Circuit, district courts have applied rationality-review-with-bite in various DOMA challenges, including both Massachusetts v. US Department of Health and Human Services and Gill v. Office of Personal Management (invalidating DOMA as applied to same-sex spouses lawfully married in Massachusetts, in separate suits brought by the Commonwealth and by seven couples, which were combined before the First Circuit), as well as Golinski v. OPM (invalidating application of DOMA to deny health benefits to lawful same-sex spouse of federal employee), Windsor v. US (invalidating application of DOMA to impose federal estate tax to same-sex widow) and Dragovich v. Department of Treasury (invalidating application of DOMA to block access of same-sex spouses of California state employees to the state’s long-term care plan).

Other federal courts have followed Romer‘s rationality-review-with bite example when reviewing state actions to strip rights from same-sex couples, including rulings by both a district court and the US Court of Appeals for the Ninth Circuit invalidating California’s stripping of the right to same-sex marriage in Perry v. Brown, and rulings by both a district court and the Ninth Circuit enjoining Arizona from stripping state health benefits from the domestic partners and children of state employees in Diaz v. Brewer. Similarly, before Congress repealed Don’t Ask Don’t Tell (DADT) in September 2011, several federal courts held that banning openly gay individuals from serving in the military failed rationality review, even considering the special deference afforded military policy.

No doubt the Obama Administration has contributed its fair share to the confusion over the appropriate level of scrutiny. When US Attorney General Eric Holder announced in February 2011 that he and President Obama had reviewed DOMA and determined that it is unconstitutional, his letter to Congress concluded that classifications based on sexual orientation required heightened scrutiny and that DOMA did not substantially advance any important governmental interest. However, in the course of splitting the hairs deemed necessary to justify the administration’s about-face, Holder opined that a reasonable argument for DOMA could be proffered under highly deferential rational basis review. Holder’s analysis notably avoided the possibility of less deferential Romer-style rationality-review-with-bite.

Solicitor General Donald Verrilli has followed Holder’s lead. Verrilli also recently urged the Supreme Court to review DOMA in the Massachusetts case from the First Circuit and — in an unusual pre-judgment request for review — in the Golinski case pending before the Ninth Circuit. In both petitions, Verilli similarly avoided Romer-style rationality-review-with-bite, arguing instead that, while DOMA might survive deferential rationality review, it should be evaluated under intermediate scrutiny, which it fails.

Verrilli and Clement agree not only on the urgency of Supreme Court review but also on limiting equal protection analysis to only three levels of judicial review: highly deferential rational basis review, intermediate scrutiny, or strict scrutiny. Perhaps their shared devotion to the three tiers of scrutiny reflects a desire for clarity and simplicity. But the problem with the tiers of scrutiny is that they deserve fidelity only so far as they serve the function of facilitating consistent judicial enforcement of constitutional limits on governmental power. The Supreme Court’s avoidance of its own tiers of scrutiny suggests that they have not sufficed to serve the purpose for which they were created.

Precisely because the courts have been reluctant to follow their own criteria for determining when a governmental classification is sufficiently suspect to justify heightened scrutiny, the battle has been playing out within rationality review instead. If using rationality review is unsatisfying, then the Supreme Court should simply follow its established suspect classification criteria, and surely heightened scrutiny for sexual orientation will follow. If the Court continues to avoid heightened scrutiny, then it should require the kind of actually rational relationship of means to ends that it has required in a variety of other contexts.

The Court need look no further than its reasoning in its most prominent rationality-review-with-bite trilogy of decisions, including invalidation of Colorado’s prohibition on extending discrimination protection based on sexual orientation in Romer v. Evans, invalidation of the City of Cleburne’s denial of a zoning permit to a group home for developmentally disabled youth in City of Cleburne, Texas v. Cleburne Living Center and invalidation of the congressional denial of food stamps to “hippies” and other unrelated households in US Department of Agriculture v. Moreno. The First Circuit nicely synthesized this trilogy, describing the holdings as resting “on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.”

What does such an actual rationality review of the typical defenses for refusing to recognize same-sex marriage reveal? First, regarding the formal defense: defining marriage for federal purposes to exclude same-sex marriage fails on its circularity, as any such exclusion begs the question of its justification. Second, regarding the defenses of tradition and morality: neither tradition nor moral disapproval alone can suffice to justify denials of liberty and/or equality.

Third, regarding the various formulations of the functional defense disavowed by the federal government and several states: conservatives have simply failed to establish any rational connection between denying recognition of same-sex marriage and promoting either more responsible heterosexual procreation and/or more optimal child rearing (and this despite ample opportunities to demonstrate such a connection during the 1996 state trial in Hawaii, the 2010 federal trial in California and the volumes of briefs filed to date). Finally, regarding the “catch-all” defenses: the government is certainly not allowed to save costs at the expense of a particular minority group, and DOMA was not a cautious attempt to preserve either the status quo or federalism. In fact, DOMA dramatically changed the federal government’s long-standing policy of recognizing marriages deemed lawful by the states.

Do not be distracted by the cries of novelty. Clement and other conservatives are quite familiar with rationality-review-with-bite. Requiring an actually rational linkage between means and ends is exactly what Clement successfully obtained from the Supreme Court in its recent blockbuster ruling that requiring health insurance was not rationally related to regulating interstate commerce. The Court, instead, upheld the mandate for individuals to obtain minimum coverage or else pay a fine as within the taxing power of Congress.

Neither the price of minimalism nor the evolution of the tiers of scrutiny is new. When Mildred and Richard Loving presented their arguments to the Supreme Court in 1967, their brief lamented that scholars had not reached consensus on how to interpret the minimalism of Brown v. Board of Education, specifically whether the decision was based on the intentional nature of the discrimination or merely the lack of a rational basis. Neither the Lovings nor Virginia argued for strict or heightened scrutiny, as many looking in the rear view mirror commonly assume. Instead, both sides litigated the case within the framework of rationality review, simply disagreeing over whether the interracial marriage ban bore a reasonable relationship to any legitimate state interest. It turns out there is nothing novel about urging the courts to invalidate even long-standing discrimination for which the government currently lacks an actually rational basis.

Julie Nice serves as the Herbst Foundation Professor of Law at the University of San Francisco School of Law. Her scholarly work focuses on constitutional law, sexuality law, and poverty law. She is currently teaching a summer course on Comparative LGBT Rights in Barcelona and recently published The Descent of Responsible Procreation: A Genealogy of an Ideology.

Suggested citation: Julie Nice, The Price of Minimalism: Same-Sex Marriage and Confusion Among the Courts, JURIST – Forum, July 31, 2012,

This article was prepared for publication by Michael Kalis, an associate editor for JURIST’s academic commentary service. Please direct any questions or comments to him at

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