POLITICS MARCH 11, 2011
Last Friday, Republican Speaker John Boehner announced he would convene a legal advisory group to authorize the House of Representatives to defend the Defense of Marriage Act (DOMA) in court. This week, this group voted in favor of Boehner’s proposal. The move was in direct response to the Obama administration’s decision in February to stop defending Section 3 of DOMA. “[T]his action by the House will ensure the matter is addressed in a manner consistent with our Constitution,” Boehner said. But, if he really wants to combat Obama’s decision, Boehner will likely have to focus on more than DOMA.
The administration has said it will argue that all laws discriminating on the basis of sexual orientation—including but not limited to DOMA—require “heightened scrutiny,” a higher standard of review courts apply to laws that classify individuals in prohibited ways (for example, by race or gender). Historically, federal courts have been deferential toward legislatures on questions of the law and sexual orientation, applying only “rational basis” review to statutes challenged in court. Rational basis requires courts to presume the constitutionality of a law, and courts applying that test can uphold a statute for reasons a legislature never intended. Should the Obama administration’s heightened-scrutiny argument prevail in the federal courts—perhaps, eventually, even in the Supreme Court—it would flip this rational-basis presumption on its head. “When judges presume that a law is unconstitutional and should be viewed with suspicion, and place the burden on the government to at least show that the actual reasons for the distinctions a law draws were to substantially advance an important government objective, it’s hard for judges to uphold the law,” says Jon Davidson, legal director of Lambda Legal.
This could drastically influence a host of gay-rights issues, including marriage, adoption, foster parenting, surrogacy, public education, and workplace discrimination. The DOMA decision, in other words, could affect every nook and cranny of gay rights law—even invalidating some of the most egregious statutes on the books.
Marriage. Within marriage law, heightened scrutiny could provide the needed ammunition to defeat a number of statewide “mini-DOMAs” that have been written into the laws or the constitutions of 40 states. For example, in Perry v. Schwarzenegger—the case in which a federal judge in California invalidated Proposition 8, a statewide ballot initiative amending California’s constitution to annul a prior California State Supreme Court allowing same-sex couples to marry —the plaintiffs have asked the Ninth Circuit to reconsider its decision temporarily blocking the ruling, invoking the Obama administration’s position on heightened scrutiny as a basis to allow the lower court judgment stand. (Prop 8’s private defenders have opposed the request, but the Ninth Circuit has yet to rule on it.)
Parenting and family. Heightened scrutiny could also affect family-law issues, such as adoption, custody, and surrogacy. Three states—Michigan, Mississippi, and Utah—prohibit gay couples from adopting either by explicitly excluding them from the process or by excluding single persons who cohabitate outside of marriage (the states that use the latter method don’t allow gay couples to marry). While states do not explicitly prevent family courts from granting custody and visitation to gay parents, judges in custody cases have considered a parent’s sexuality as the basis for denying custody or limiting visitation, something heightened scrutiny would likely prevent. Finally, of the 18 states that permit surrogacy, almost half refuse to enforce a surrogacy contract unless the couple seeking to enforce it is legally married. In six of those seven states, gay couples are prohibited from marrying. Heightened scrutiny could help challenge and possibly overturn these laws.
Education. Heightened scrutiny would have a big impact on education law by making it easier to challenge statutes that require schools to teach that homosexuality is dangerous, unacceptable, and/or illegal. In Arizona, for example, the legislature has banned any course of study that “promotes a homosexual life-style,” “portrays homosexuality as a positive alternative life-style” or “suggests that some methods of sex are safe methods of homosexual sex.” South Carolina requires its school health-education programs to exclude any mention of homosexuality except in the context of instruction regarding sexually transmitted diseases. Texas, Alabama, and Mississippi mandate that their public education curricula teach that homosexual conduct is illegal, although this is untrue: The Supreme Court struck down Texas’s anti-sodomy law and, by extension, all remaining anti-sodomy laws, in the 2003 Lawrence v. Texas case.
Beyond education policy as it appears on the books, public schools have been sued for ignoring anti-gay violence and harassment, prohibiting students from forming gay/straight alliances, and refusing gay kids the chance to bring a same-sex date to a dance or prom. Although these cases often involve First Amendment claims or settle out of court, heightened scrutiny would provide additional legal leverage against schools that cancel proms to avoid allowing same-sex couples to attend, punish students for speaking about homosexuality at school, or intimidate students who wear clothing showing support for gay rights.
Workplace discrimination. The Obama administration’s position on gay rights would also make it easier for plaintiffs to successfully sue government employers at the federal, state, and local levels who fire them or withhold promotions because of sexual orientation. While some states already have statutory protections barring private and public employers from engaging in sexual-orientation-based discrimination, more than half do not. The administration’s statement on heightened scrutiny could thus be important in cases such as Collins v. Brewer, a successful challenge brought by Lambda Legal against a 2009 Arizona law eliminating family health coverage for non-spouse domestic partners (in a state where gays cannot marry). The plaintiffs, who are now fighting off an appeal in the Ninth Circuit, recently invoked the Obama administration’s change of position as a further basis to affirm the previous ruling.
Joseph Landau, a former New Republic assistant managing editor, is an associate professor at Fordham Law School.