'Heightened Scrutiny' in Gay Marriage Cases?

      Gay marriage supporters appear confident and opponents defensive on the eve of arguments this week before the Supreme Court on California’s Proposition 8 and the federal Defense of Marriage Act (DOMA). So it is not too early to speculate not only on whether the justices will strike down the two anti-gay measures but also on how far the court will go in charting the way for legal equality for gay men and lesbians.
      Lawyers for the plaintiffs in the two cases will be urging the court to put laws that treat people differently based on sexual orientation in a special, constitutionally suspect category. They will urge the court to subject such laws to some form of “heightened scrutiny.” Under that test, a law cannot be upheld unless the classification used is substantially related to the achievement of important government objectives.
      The U.S. government, represented by Solicitor General Donald Verrilli, will be taking that position as well in both cases. That is the position that President Obama endorsed two years ago when the Justice Department stopped defending DOMA in court. And the government significantly decided to file a brief in the Prop 8 case taking the same position and to ask for argument time before the court to urge the court to strike down California’s gay marriage ban.
      Lawyers on the opposite side — the Prop 8 supporters in Hollingsworth v. Perry and the House of Representatives’ Bipartisan Legal Advisory Group (BLAG) in United States v. Windsor — will be urging the court to apply the minimal constitutional standard: the so-called rational basis test. Under that test, a law can be upheld if its defenders can offer any reasonable justification for treating one class of people differently from another.
      DOMA and Prop 8 may well be struck down even if the court applies only the rational basis test. The arguments for Prop 8 and DOMA have been rejected by lower courts. But for future cases the court’s decision about what test to apply may well determine the future course on such other issues as gay adoption, workplace protections, and school curriculums.
      The court long ago ruled that race was a suspect classification and that race-based laws must meet the highest constitutional: strict scrutiny. Under that test, a law cannot be upheld unless it furthers a compelling government interest and is narrowly tailored to that purpose. It has often been said that the test is “strict in theory and fatal in fact.” In the 1970s, the court held that sex was also a suspect classification for equal protection purposes. Through a succession of cases, the court developed what it has called “intermediate scrutiny” for laws treating men and women differently.
      The court faced the issue of what test to apply to sexual orientation in the 1990s when it considered a challenge to the Colorado initiative that barred the enactment of any laws to prohibit discrimination on the basis of sexual orientation. The Colorado Supreme Court had applied strict scrutiny in ruling the measure invalid. But the justices found they did not have to go that far. Instead, in Romer v. Evans (1996), Justice Anthony M. Kennedy led the 6-3 majority that the law failed the minimal rational basis test because it served no purpose other than to impose a disadvantage born of animosity toward gays and lesbians.
      Lawyers for the plaintiffs in this week’s cases will argue that gays and lesbians meet all the criteria the court has used to rule a legal classification suspect. First, gays and lesbians have been subject to a long history of discrimination. Second, a person’s sexual orientation does not affect his or her ability to contribute to society. Third, sexual orientation is an immutable and distinguishing characteristic. And, fourth, lesbians and gay men lack the political power to protect themselves from discrimination.
      In their brief representing the New York widow Edith Windsor in the DOMA case, lawyers note that the BLAG lawyers on the opposite side “hardly contest[ ]” the first two criteria, “the most significant to the analysis.” Nor do the lawyers defending Prop 8 deny the history of discrimination. Instead, the lawyers in those two cases both argue that gays and lesbians now have sufficient political power for the court to allow the marriage issue to be worked out in what the BLAG lawyers call “the democratic process.”
      The democratic process has been working better for gays and lesbians over the past few years. Gays and lesbians can now serve openly in the military. And gay marriage supporters won four statewide referenda in November. And public opinion polls now show significant majority support nationwide for gay marriage: 58 percent to 36 percent. If the Supreme Court allows Prop 8 to stand, gay marriage supporters in California can almost certainly get it repealed at the ballot box.
      Still, anti-gay groups are off base in depicting the LGBT community as politically powerful enough to protect themselves from discrimination. Gay teachers are still being fired in the United States, and would-be gay parents are being blocked from adopting children. And, if the court rules narrowly on Prop 8, the gay marriage bans on the books in most of the states will remain presumptively valid.
      The minimalist approach may be necessary to forge a five-justice majority. But the court will be truer to the goal of equal justice under law if it goes further and points the way toward ending legal discrimination against gays and lesbians in all forms.