Guess Who’s Coming to Dinner?

DOMA

(Part Three of a Six-Part Series)

by Justin VanLeeuwen

Read Part One     Read Part Two     Read Part Four     Read Part Five     Read Part Six

“As was observed by Justice Robert H. Jackson decades ago in reference to the United States Constitution, the very purpose of limiting the power of the elected branches of government by constitutional provisions like the Equal Protection Clause is ‘to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.’” W. Va. State Bd. of Educ. v. Barnette quoted in Varnum v. Brien

Justin VanLeeuwen photo

Justin VanLeeuwen

I had originally intended this post to deal exclusively with the Defense of Marriage Act (DOMA) of 1996, and though I still plan to discuss it, I wanted to visit a few other topics as well.

I’d like to start by stepping back and asking the broad, open-ended question regarding the purpose of the courts: what is it? Recently as I was listening to the radio on the way home from work, I heard a news blurb about how disgruntled voters in Iowa were organizing a campaign to oust one of their State Supreme Court Justices in retaliation for a unanimous decision by the Court in 2009 to strike down the state law restricting marriage rights to heterosexual couples; they had already successfully unseated three of the justices (including the Chief Justice) in 2010 for the same reason, and from all appearances, they intend to go after the remaining three in 2016 when those justices come up for a retention vote. Three justices in Florida face similar attempts to remove them from the bench following a vote by that state’s Supreme Court in regard to a proposed state amendment on the federal Affordable Health Care Act.1 In these discussions as in many others in which people merely express their discontent with a particular ruling, a common theme resounds: activist justices subvert the will of the people.

Chief Justice Marsha Ternus and Justices Michael Streit and David Baker of Iowa’s State Supreme Court, removed from office by popular vote after ruling a state version of DOMA unconstitutional

This sentiment reveals a deep misunderstanding of the purpose and function of the court system. The courts and the justices who preside over them are not elected representatives of the people, nor do they exist to embody or uphold the popular will. The fact that a majority wish or even voted by referendum for a law does not bind the courts in any way to uphold it if it conflicts with superior law. At times in fact , the courts are compelled to reject the majority in favor of the rights of a minority, to temper democracy with equality because we as a nation believe that the rights of one trump the whims of many. The Bill of Rights and subsequent amendments exist, after all, not merely to protect the people as a group from some abstract entity called the government; the Constitution shelters these rights for every person who, as an individual, is incapable of protecting himself from the power of the majority as embodied in a majoritarian, democratic government. And insofar as the courts exist to uphold those rights, they exist to protect minorities (which at the most basic level are just collections of individuals who as a minority cannot protect themselves2) from the brute force of the majority.

For this very reason the idea of unseating a judge because of a disagreement with any particular decision should shock us. We should expect to disagree with court decisions all the time and with great feeling — we ask them to settle the hardest questions we have. Obviously insofar as judges are human, they cannot possibly divest themselves fully of their personal biases and persuasions, but subjecting them to popular vote will only intensify the pressure they already feel to conform to public opinion rather than the law. The three Iowan justices who have already lost their seats refused to campaign to save them because as justices they sought to avoid the political sphere. How will other justices manage to do the same if the people start taking popularity votes on who should stay based on the outcomes of the judges’ decisions?

Thea Spyer (l) and Edith Windsor (r), who were married in Canada in 2007 after 41 years together. Ms. Spyer died in 2009 and her widow has successfully challenged DOMA in US District Court.
“While New York State considered us married, the federal government did not, so the government taxed Thea’s estate as though we were strangers rather than spouses.” — Edith Windsor

In order to discuss the remaining legal issues I wish to address, I will need to explain levels of scrutiny and suspect class status. Please bear with me. The American court system has three levels of judicial review that it applies to laws when judging their constitutionality in the face of an equal protection claim: rational basis review, heightened scrutiny, and strict scrutiny. In rational basis review (the default and the most lenient), the court gives the legislature the benefit of the doubt in exercising its discretion in making laws, placing the burden on the plaintiff to prove that the classification in the law does not “bear a rational relationship to an independent and legislative end.” To do so, the plaintiff must demonstrate either that the rational bases for the law are patently false or that no conceivable governmental interest for the law exists (the plaintiff must address not only the governmental interests posed by the state in its defense, but also any hypothetical interests the court might suggest). The second level of review, heightened or intermediate scrutiny, shifts the burden of proof to the state who must demonstrate that the law furthers an important government interest and that the classifications made by the law substantially relate to it. In the highest level of review, strict scrutiny, the burden of proof again falls upon the state and with greater weight. The state must show that the law furthers a compelling government interest, that it is narrowly tailored to that interest (meaning that the reach of the law must not be so broad as to unnecessarily include people or issues unrelated to the goal of the law), and that no alternative exists by which the law would be less burdensome to the group it disadvantages. While most laws can pass rational basis review without much difficulty, most cannot sustain the demands imposed by strict scrutiny.

Courts use specific criteria for determining which standard of measure to apply. Strict scrutiny requires that the law address either a suspect class or a fundamental right explicitly protected by the Constitution or determined by the Court to be substantiated in the liberty or due process clauses of the Fifth or Fourteenth Amendment. Heightened or intermediate scrutiny involves the presence of a quasi-suspect class. Rational basis review covers all other cases.

SCOTUS developed its status of suspect classes in order to identify groups that generally bear the brunt of undue social prejudice and discrimination and thus require a closer analysis of any law in which they they are categorized for legal purposes.3 SCOTUS has also established four criteria by which courts may identify groups in need of suspect class status protection. These four elements do not constitute a simple checklist, but rather a series of guide posts — all four qualifications need not necessarily be met. However, the first two in the following list have historically been given more weight than the latter two.

  • A “history of purposeful unequal treatment” (San Antonio School District v. Rodriguez)
  • “Be[ing] subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilit[y]” to contribute to society (Massachusetts Board of Retirement v. Murgia)
  • “An immutable characteristic determined solely by accident of birth” (Frontiero) or “a characteristic determined by causes not within the control of the . . . individual” (Mathews v. Lucas)
  • “Relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process” (San Antonio School District v. Rodriguez)

I used quotes for the benefit of specificity, but at the same time they might not be sufficiently broad or clear in their explanations. For example, while the second qualification seems to overlap with the first, the emphasis rests on the whether the identifying trait of the group bears any relationship to an individual’s ability to contribute meaningfully to society. In the case of the third qualification, the immutable characteristic need not actually be impervious to change (though it may be), but rather might be a characteristic so fundamental to the identity of an individual that she should never be asked to change it.

Marlin Nabors and Jonathan Knight, Gill et al vs. Office of Personnel Management co-plaintiffs
Married in Massachusetts, they are unable to file a joint federal tax return because of DOMA, causing a significant financial hardship.
“We want to plan for a future in which we aren’t discriminated against just for being a married couple. We think our country can do better than having a system of first- and second-class marriages.” — Marlin Nabors

Now I know that my less sympathetic readers will readily object that sexual orientation is not an immutable characteristic but rather that we can and should change it. Similarly, opponents to marriage equality claim that LGBT+ people are by no means politically powerless. However, at least in a court of law, no attorney has tried to make the case that gays, lesbians, and transgender people have not been historically subjected to discrimination and social abuse.4 Nor do they claim that our orientation in any way inhibits our ability to contribute to society.5 On the issue of sexual orientation as an immutable characteristic, opponents either fail to make a case at all6 or they “acknowledge sexual orientation is highly resistant to change” (Varnum v. Brien). In either case, courts accept this determination as satisfying the “immutable characteristic” qualification. On the issue of political powerlessness, opponents again present a very weak case.7 It is true that LGBT+ people have received vocal support from powerful politicians like former Speaker of the House, Nancy Pelosi, and now President Barack Obama, but such support has failed to influence our political reality8 (every single ballot measure to ban marriage rights for same-sex couples has passed with the qualified exception of Arizona, where passage failed on the initial attempt but subsequently succeeded). However, the case cannot be made that LGBT+ people have more political power than African-Americans or women who are accorded suspect and quasi-suspect class status respectively. As the court found in Golinski v. Office of Personnel Management, “Despite the modest successes in remediating existing discrimination, the record demonstrates that gay men and lesbians continue to suffer discrimination ‘unlikely to be rectified by legislative means.’”

Bearing all this in mind, it is not surprising that in all of the cases I have read (barring two), when the issue of LGBT+ people as a suspect class has arisen, the court has conferred suspect or quasi-suspect status and with it the accompanying heightened or strict scrutiny. I am only aware of two cases to the contrary. In High Tech Gays v. Defense Industrial Security Clearance Office (1990), the Ninth Circuit denied suspect class status on the basis of Bowers which had not yet been overturned; the court held that a criminalized group could not simultaneously be considered a suspect class worthy of protection (the irony here is strong). In Cook v. Gates, the First Circuit refused to recognize homosexuals as a suspect class, not based on the merits of the case but because the Supreme Court has not yet done so.

I spent so much time on this issue in order to address Antonin Scalia’s final defense which I hinted at in a footnote to the previous post: that under rational basis review, morals legislation passes constitutional muster. Though he holds this opinion in opposition to six of the Justices who voted against him, even he would not maintain that moral disapproval alone could save a law placed under heightened or strict scrutiny. And that is the direction in which gay rights cases are trending.

I would like to move on briefly to the Defense of Marriage Act now, and I’ll start with the relevant text:

Section 2. Powers reserved to the states

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of marriage

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

While I take issue with both sections equally,9 it is section three that is receiving attention in the courts right now, so I will deal with it exclusively.

Congress advanced four arguments in support of passing DOMA:

  • Defending and nurturing the institution of traditional, heterosexual marriage
  • Defending traditional notions of morality10
  • Protecting state sovereignty and democratic self-governance
  • Preserving scarce government resources

Janet Geller and Joanne Marquis, Pedersen vs. Office of Property Management co-plaintiffs.
Legally married in the State of New Hampshire and together for 32 years, DOMA has prevented Jan from receiving spousal insurance benefits on Jo’s retirement plan.
“In our minds we’ve always been married and we’ve always known it was going to be for a lifetime. There was no doubt in our brains. Where we did feel differently was—wow, finally the state of New Hampshire is validating who we are.” — Janet Geller

On the advice of Justice Antonin Scalia who said that “‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples” (emphasis original), I will lump the first and second arguments together and dispatch them immediately with SCOTUS’ ruling in Lawrence, quoting Justice Stevens in his dissent in Bowers: “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” In terms of preserving government resources, to quote Gill v. Office of Personnel Management (a First Circuit opinion that judged the case on rational basis review), “where the distinction is drawn against a historically disadvantaged group and has no other basis,11 Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction.” The third reason conflicts with the law altogether.12 While in section two it allows each state to ignore the others, in section three it prevents each state from fully deciding the issue for itself — even states that choose to recognize marriage equality cannot offer their residents the full protection of the law. In fact, by recognizing marriage equality, these states put themselves out of compliance with federal marriage statutes (because of DOMA), thus putting funding for Medicaid and Veteran cemeteries (among other things) in jeopardy.

To date, all the federal cases that have challenged section three of DOMA in particular have succeeded. Three of those cases are being appealed jointly to SCOTUS, and have a high probability of appearing on the docket for the 2012-2013 session.

Read Part Two   Read Part Four


1 Both Iowa and Florida have a retention system in place by which appointed justices appear on the ballot every so many years for an up or down vote. Both states made these adjustments to the judicial system in the 1970s following ethics scandals (in Florida, an investigation found a justice had been accepting bribes). Until 2010, no justice had been unseated by such a vote in Iowa or for the past 36 years in Florida.

2 Varnum v. Brien, Iowa State Supreme Court, 2009:

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality. See Lawrence v. Texas, 539 U.S. 558, 578–79, 123 S. Ct. 2472, 2484, 156 L. Ed. 2d 508, 526 (2003) (acknowledging intent of framers of Federal Constitution that Constitution endure and be interpreted by future generations); Callender v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999) (“Our constitution is not merely tied to tradition, but recognizes the changing nature of society.”).

3 Justice Brennan in Plyler v. Doe, 1982:

Several formulations might explain our treatment of certain classifications as “suspect.” Some classifications are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal. Finally, certain groups, indeed largely the same groups, have historically been “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” The experience of our Nation has shown that prejudice may manifest itself in the treatment of some groups. Our response to that experience is reflected in the Equal Protection Clause of the Fourteenth Amendment. Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of “class or caste” treatment that the Fourteenth Amendment was designed to abolish.

4 According to the FBI’s hate crimes statistics for 2010, hate crimes for sexual orientation (excluding the miniscule amount of anit-heterosexual hate crimes) represent 18.3% of all hate crimes, the second highest targeted group between African-Americans at 33.7% and Jews at 12.7%. Now I did not have the time to research this point, so I do not know how the FBI categorizes hate crimes, but if they merely gather self reported cases from state agencies, then that number could be disproportionately low as only 31 states had hate crime laws protecting sexual orientation in 2009 (only 12 of those states protected gender identity).

5 “Proponents admit that same-sex sexual orientation does not result in any impairment in judgment or general social and vocational capabilities . . . . Attorney General admits that sexual orientation bears no relation to a person’s ability to perform in or contribute to society” Perry v. Schwarzenegger.

6 In Perry v. Schwarzenegger, the court found that “no credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.” Citing the expert witness in the findings of fact, the opinion states that “therapies designed to change an individual’s sexual orientation have not been found to be effective in that they have not been shown to consistently produce the desired outcome without causing harm to the individuals involved.” Neither of the defense’s two witnesses offered any evidence to the contrary.

7 In Perry v. Schwarzenegger the defense offered an expert witness whom they supplied with literature to use in his testimony, and even then, he could not address questions regarding the relative power between LGBT+ people and African-Americans or women.

8 In Golinski v. Office of Personnel Management, the defense argued that the Human Rights Campaign influenced President Obama to cease defense of DOMA in a letter it wrote to him. The court dismissed this contention on the basis that the letter was two years old at the time. The defense also argued that anecdotes such as the recent appointment of four openly gay federal judges disproved the argument, but four judges out of hundreds hardly makes a case.

9 Section two attacks the very root of marriage — it’s portability. Once married, a couple expects to remain so unless the decide otherwise, but with this single sentence, a same-sex couple married in one state suddenly becomes unmarried by stepping across an arbitrary line on the ground. While I find this an affront, I also expect it to become irrelevant in the event that SCOTUS strikes down state marriage bans.

10 Discussions in congress prior to the passage of DOMA centered around a “‘moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality’” (H.R. Rep. No. 104-664 at 16 quoted in Golinski). In comments in the Congressional Record, our national representatives referred to us as “‘immoral,’ ‘depraved,’ ‘unnatural,’ ‘based on perversion,’ and ‘an attack on God’s principles’” (quoted in Golinski). It seems quite clear then, that DOMA did not merely represent an act of public policy but an attempt to “‘express their disapprobation through the law’” (quoted in Golinski).

11 Excluding any group of people from marriage would have the same fiscal effect on the government budget. Thus the classification of gays and lesbians for this purpose is completely arbitrary.

12 Gill v. Office of Personnel:

The penultimate reason listed above was not directed to section 3–indeed, is antithetical to it–but was concerned solely with section 2, which reserved a state’s power not to recognize same-sex marriages performed in other states.

Guess Who’s Coming to Dinner? comment

  1. Robert S. says:

    Excellent, detailed analysis Justin. Thanks for sharing your thoughts so eloquently and mustering them all into a single, trenchant piece.