Big news: The 2nd Circuit Court of Appeals struck down the Defense of Marriage Act as unconstitutional. You can download the opinion at Above the Law. A few notable things: First, the opinion is written by Jacobs, a very conservative justice. Second, the court evaluates DOMA using intermediate scrutiny, which is really important. Explainer below, for the non-lawyers (or non-legal-nerds) in the audience. From the opinion:
The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,” Bowen v. Gilliard, 483 U.S. 587, 602 (1987); B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” Cleburne, 473 U.S. at 440-41; C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” Bowen, 483 U.S. at 602; and D) whether the class is “a minority or politically powerless.”
The court concludes that homosexuals are a quasi-suspect class that meets the standard for heightened scrutiny (meaning, basically, gay people fit the four factors listed above, but the historical mistreatment of gay people is not so bad that homosexuals are a suspect class requiring the most exacting and strict of review. As a general rule, religious and racial groups, and groups based on national origin or alienage, are “suspect classes”).
The level of review determines how strictly the court will evaluate the law — to what degree that law has to relate to a government interest, and how strong that interest needs to be. Intermediate scrutiny, which the court uses here, is what it sounds like — the middle level. The lower level is “rational basis” review, where the government only has to show that the law (or governmental action/policy) is rationally related to a legitimate governmental interest. It is the default level of review, and usually not used when a fundamental right is implicated, or when dealing with a suspect or quasi-suspect class. Intermediate review, which the court used here, looks at whether the law forwards an important governmental interest in a way that is substantially related to that interest. Intermediate review has been used in evaluating things like sex discrimination. The strictest level of review, strict scrutiny, looks at whether there is a compelling government interest for the law or policy, and whether the law/policy is narrowly tailored to fit that interest and is also the least restrictive way of achieving that interest. Strict scrutiny is typically used in cases about discrimination based on race, national origin, alienage and religion.
When the First Circuit evaluated DOMA, they used rational basis review. That the Second Circuit thinks discrimination against gay people merits intermediate scrutiny is a big step.
Back to the case: Once the Second Circuit court established that homosexuals are a quasi-suspect class, the court then evaluated whether DOMA could withstand intermediate scrutiny — whether DOMA is substantially related to an important government interest.
The court says no.
The reasons offered by BLAG (the pro-DOMA folks) for important government interests in DOMA were maintaining a uniform definition of marriage, saving money, preserving tradition and encouraging “responsible procreation.” Which, as an aside, are funny reasons — for gay couples to procreate, they have to take affirmative and thought-out steps, which to me is more “responsible” than the whoopsie! procreative tendencies of a lot of straights; and DOMA’s impact on the recognition of same-sex marriages across state lines is what’s making marriage less than uniformly defined. The court pointed out that DOMA does cause more discord and inefficiency than it promotes; DOMA surely does conserve federal dollars but that doesn’t justify excluding an arbitrarily-chosen group of individuals from government benefits; tradition is not a good enough reason to uphold a law; and while encouraging responsible procreation is a good thing, DOMA in no way creates incentives for straight couples to get married and have babies (what, married straight parents? You didn’t get married and reproduce just because the gays can’t?).
And then there’s this interesting bit at the end:
Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status–however fundamental–and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.
For those not familiar with the American legal system, we have several tiers of state and federal courts. Basically, if you lose in one of the lower courts, you can appeal to a higher court; under certain circumstances the court will grant the appeal and reevaluate particular segments of the case. Cases can get appealed up and up and up through several layers of courts, but usually the outcomes are decided at the lower levels. Our twelve circuit courts, divided regionally, are the second-highest courts in the country; the next step up, if a decision from a circuit court is appealed, is the Supreme Court of the United States, which only grants review to a very small number of cases. Circuit courts are extremely influential and extremely powerful; they hear many more cases than the Supreme Court, and the law they make governs many more lower decisions. The Supreme Court often grants review of circuit court cases when there’s a split among the circuits, and on pressing Constitutional issues. So circuit court decisions on issues like DOMA are a Big Deal.
And this is a very good Big Deal decision.
Also very good: That BLAG has spent millions of dollars on these cases and loses every time.