I don’t think this is terribly surprising, but the United States District Court for the Northern District of California just granted summary judgment for a plaintiff seeking federal health benefits for her same-sex spouse and to do so declared a portion of the federal Defense of Marriage Act unconstitutional. The couple is legally married in California. The case concerns Section 3 of DOMA but not the portions about recognition by other states. As a District Court ruling, there’s still a long way to go, but the 9th Circuit will almost certainly affirm. The judge who ruled, Jeffrey White, is a George W. Bush appointee.
The case is here. (The link is to a pdf.)
The interesting aspect of this case, to me, has to do with its consideration of whether heightened scrutiny or the rational basis test would apply. (The judge eventually ruled that either way the plaintiff would win, covering his bases with the alternative ruling as judges do.)
The scrutiny question is an important one in any Equal Protection case.
The Equal Protection Clause, which applies to 5th Amendment challenges like this one too, even though the Equal Protection clause is specifically found only in the 14th Amendment, states:
“nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.”
Obviously, laws constantly distinguish between groups of people, for example when providing the circumstances under which someone is or is not entitled to benefits. The law does so in providing that family members, defined as spouses and children, are entitled to benefits, and not those you might consider family. Therefore, in determining whether a particular distinction is legitimate, courts will consider whether the legislature had an adequate basis for the distinction. In most cases, where the distinction does not suggest any reason for concern (such as distinguishing between people based on income in determining the tax code), the “rational basis test” applies. As I mentioned a while back in the Romer v. Evans post, it’s generally understood that the rational basis test is quite easy to meet. There’s no effort to look under the rationale to see if it really makes sense, let alone a requirement of studies to prove the rationale. Thus, it’s commonly said that the rational basis test has no teeth.
Heightened or strict (the highest of the high) scrutiny is applied to certain kinds of distinctions, however. Specifically, those where it’s highly likely that the distinction is invidious and highly unlikely that there’s any valid reason for a distinction. Courts will consider the history and real-world context — such as a history of discrimination, minority status and a lack of power — as well as whether the characteristic in question is immutable in considering whether strict scrutiny applies. In other words, are we talking about a suspect class? Strict scrutiny is rarely granted beyond the classic example of race and related distinctions, such as national origin or ethnic background. It also applies to distinctions based on a fundamental right. The classic heightened scrutiny example is sex.
Anyway, when the cases involving discrimination based on homosexuality first started being brought, the courts generally held that homosexuality did not get any kind of heightened scrutiny, but only rational basis, and that determined the initial lack of success in challenging the laws. Those that have succeeded have generally done so by coming up with unusual arguments that tried to claim rational basis was being applied but this was a rare circumstance in which is was not met. As I explained in the Romer v. Evans discussion, one example of this is by claiming the ONLY purpose for the particular law is discrimination.
I’ve come around to thinking the Romer argument is better than I used to, but still I tend to agree that the rational basis holdings striking down these laws are challengeable as going beyond what a rational basis argument usually allows. That is especially true for the cases that try to attack laws that do more than make a distinction (as if the argument were made in a state that did not already have domestic partnerships that allegedly granted everything but the name “marriage”).
(As an aside: I think a typical misunderstanding by libertarians and some liberals about the law is the notion that laws can’t be passed unless they can be justified in some firm and provable way. That’s simply not the case. Even under our Constitution states and Congress can generally act irrationally and pass silly laws, so long as a right isn’t thereby violated or a suspect class involved.)
In this new case, however, Judge White reexamined the 9th Circuit’s holding that rational basis applied and pointed out that the law has changed since it was decided. Most significantly, Bowers v. Hardwick, the case upholding a law against sodomy was replaced by Lawrence v. Texas. Given this, the reasoning in the older case (known as High Tech Gays), no longer applies and it was, the judge believed, an open question what scrutiny applies. He did the analysis and determined — as I have long believed — that strict scrutiny should apply. Based on this, it’s pretty easy to see that a distinction between married couples based on whether they are same-sex or not cannot pass muster.
Judge White then went on to say that the distinction wouldn’t satisfy rational basis either. Beyond all the usual arguments that have been made in the marriage cases, he said that a mere concern for the state fisc is not enough to justify an irrational distinction.
I hope the Ninth Circuit accepts the strict scrutiny (or a heightened scrutiny) analysis. Rather than twist the rational basis analysis in a way that has uncertain subsequent effects, it seems much more logical to just recognize the reality of what this discrimination is. In my opinion, this is a more legally conservative position, too. My guess is that Kennedy might even agree and went through the contortions of Romer v. Evans simply because at the time Bowers v. Hardwick was still in effect.