March 22, 2012
By Jacob Combs
It’s been exactly a month to the day since Judge Jeffrey White of the Northern District of California struck down the Defense of Marriage Act as unconstitutional in Golinski v. Office of Personnel Management. It is of course significant that DOMA has now been struck down by two district courts, and equally important that the Ninth Circuit will consider the law’s constitutionality in the same way that the First Circuit will later this month. But the most significant aspect of Judge White’s ruling is a procedural legal issue regarding the level of scrutiny with which the law should be examined: Judge White is the first judge to argue that DOMA should be considered under heightened scrutiny. Not only is White correct in making this determination, but his ruling may signal a profound shift in LGBT jurisprudence that could have far-reaching effects for other gay rights legal challenges.
The issue of the appropriate level of judicial scrutiny has come up before in the DOMA and Prop 8 cases before, but it’s worth delving into the legal details here for a bit. Essentially, when a court considers an equal protection challenge of a law that applies certain rules to specific groups of people, that court must decide whether the group bringing the suit is subject to heightened or rational basis scrutiny. As Judge White writes in explaining the two levels of scrutiny: “Courts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion” (12). In cases like these, the government must show that a classification is “substantially related to an important government objective” (12). If a law doesn’t involve a protected class or a fundamental right, they are subject to rational basis scrutiny, and must be shown to be “rationally related to the furtherance of a legitimate governmental interest” (12-3).
In his opinion, Judge White first explains that the Golinski case does involve a fundamental right: the right to marry. ”It is established,” he writes, “that there is a fundamental right to marry” (13), adding that “the analysis of the fundamental right to marry has not depended on the characteristics of the spouse.” In Loving [v. Virginia], the Court defined the fundamental right as the right to marry, not the right to interracial marriage” (14). Golinski, then, is not about a right to ‘gay marriage,’ but about the fundamental right to marry. This alone makes a compelling case for heightened scrutiny. But Judge White continues. Follow me after the jump to read more about White’s scrutiny determination.
In assessing whether a law affects a protected class, courts look at four factors: (1) a history of discrimination against the class, (2) whether the characteristics that distinguish class affect a member’s ability to contribute to society at large, (3) whether membership in the class is “immutable” and out of members’ control and (4) how politically powerful the class is. Judge White points out that “no single factor for determining elevated scrutiny is dispositive” (14), and that the Supreme Court has placed much more weight on the issue of discrimination and the ability to contribute to society as opposed to the other two considerations.
Judge white addresses each of these four factors in turn. On the issue of discrimination, he writes, “There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination” (18). In terms of contributions to society, White cites the ruling in the Prop 8 trial, noting that “there is no dispute in the record or the law that sexual orientation has no relevance to a person’s ability to contribute to society” (19). As for the immutability of sexual orientation, Judge White acknowledges that BLAG presented evidence in the case that there is “some fluidity” in sexuality for a “very small minority” of gays and lesbians, but affirms that “the consensus in the scientific community is that sexual orientation is an immutable characteristic” (19). Furthermore, he points out that Ninth Circuit precedent holds that “sexual orientation is recognized as a defining and immutable characteristic because it is so fundamental to one’s identity” (20).
During oral arguments, BLAG argued that the Obama administration’s reversal of position on defending DOMA in court came after it received a letter from the Human Rights Campaign, and that this decision showed that gays and lesbians are not politically powerless. Not only does Judge White demolish the claim that the letter and the Justice Department’s decision were related, calling it “speculative at best” (22), he goes on to argue that the marriage equality wins in a handful of states and nomination of four openly-gay judges that BLAG cites as evidence of gays’ political power are in fact “exceptions and not the rule” (22). Gays and lesbians, White writes, have limited political power, and are subject to the whims of majoritarian politics. Drawing on all four factors to make his decision about the proper level of judicial scrutiny to be applied to DOMA, White writes resoundingly: “this Court holds that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority” (24).
The rest of White’s persuasive opinion, in which he explains why DOMA is unconstitutional and refutes all of BLAG’s claims for why the statute should stand, is well worth reading. (There’s a gem on page 41 when he writes that Congress “cannot, like an ostrich, merely bury its head in the sand and wait for danger to pass, especially at the risk of permitting continued constitutional injury upon legally married couples.”) But it is his ruling on heightened scrutiny that lays the foundation for other courts to follow suit in the future.
Up until Judge White’s Golinski ruling, most of the courts that have looked at equal protection challenges as they relate to gays and lesbians have relied on rational scrutiny. For instance, both Judge Vaughn Walker in the Prop 8 case and Judge Joseph Tauro, who heard another DOMA case in Massachusetts, struck down those laws on rational basis grounds, acknowledging that heightened scrutiny might apply but maintaining that neither DOMA nor Prop 8 could be upheld for any rational governmental intent. Judge White points out that the scrutiny question is still open, writing that ”the Supreme Court and Ninth Circuit have yet to issue binding rulings as to whether classifications based on sexual orientation are suspect (or quasi-suspect)” (17).
Absent a higher court’s decision to apply heightened scrutiny, Judge Walker and Judge Tauro were probably wise in crafting decisions relying on the more deferential test, meaning that their findings of law are more likely to be upheld by appellate courts (and, perhaps, the Supreme Court). Nevertheless, as Judge White makes eminently clear, heightened scrutiny is the proper standard for laws that discriminate against LGBT individuals. These laws should not be shown the deference accorded by rational basis scrutiny; rather, they should be subject to a thorough and stringent examination to ensure they do not arise out of majoritarian animus for an unpopular minority.
What makes Judge White’s decision so significant is the fact that it provides an opportunity for higher courts to rule that heightened scrutiny should apply to LGBT rights cases. Those rulings would have major precedential impacts. In 1990, the Ninth Circuit ruled in a case called High Tech Gays that gays and lesbians were not a suspect class. That ruling, however, was based on Bowers v. Hardwick, a Supreme Court decision that upheld sodomy laws. If homosexual behavior could be criminalized, the Ninth Circuit argued, gays could not be a class entitled to protection. As White argues, now that Bowers has been overruled by Lawrence v. Texas, High Tech Gays is no longer binding precedent. The Ninth Circuit, then, is free to reconsider the scrutiny issue as it pertains to gays and lesbians.
And, of course, the ultimate prize would be a Supreme Court ruling calling for heightened scrutiny as the correct standard of review. In his dissent from the Ninth Circuit’s decision striking down Prop 8, Judge N. Randy Smith cited the Supreme Court’s 40-year-old decision in Baker v. Nelson as a precedent against a constitutional right to marriage equality. In the Golinski ruling, Judge White points out that Karen Golinski is legally married under California state law, while the Baker plaintiffs were not. The pre-Lawrence Baker decision, Judge White writes, is thus “irrelevant” to the DOMA cases. Both High Tech Gays and Baker show that it is time for the Ninth Circuit and the Supreme Court to revise their opinions on heightened scrutiny as it applies to gays and lesbians. In that regard, Judge White’s ruling may be the first step to what could be the LGBT movement’s greatest legal victory.