On Feb. 23 United States Attorney General Eric Holder issued a letter stating that the Department of Justice would no longer defend Section 3 of the Defense of Marriage Act, which was a change in position from all previous Attorneys General since the law’s passage in the Clinton Administration.
Section 3 defines marriage as between a man and woman for the purposes of federal law. The next day, a legally married gay couple in California filed a joint bankruptcy petition, asking the court to jointly discharge their debts. The trustee assigned to administer the case filed a motion to dismiss the case, stating that since under DOMA this marriage was not recognized as legitimate (bankruptcy is a federal law), the couple could not file a joint case, they would have to file two separate bankruptcies.
Earlier this week, the bankruptcy court, in an opinion signed by 20 of the 25 judges, declared DOMA unconstitutional in that it violated the equal protection clause of the constitution by denying this legally married couple the same rights as any other legally married couple.
This case is a small and early skirmish in what is sure to be a long and protracted legal argument that will eventually end up at the Supreme Court.
The battle will not be fought over bankruptcy petitions, but one of the fundamental constitutional questions of the last 100 years: The Equal Protection Clause and its application to new groups of people who suffer discrimination.
The Equal Protection Clause is part of the 14th Amendment to the U.S. Constitution and states that “no state shall...deny to any person within its jurisdiction the equal protection of the laws.”
It has been subsequently interpreted to apply to the federal government. It was created and adopted after the Civil War in part to ensure our country’s commitment to the notion that “all men are created equal.” As courts have interpreted the interaction of law with the Equal Protection Clause, a detailed and complicated analytical process has been developed to help determine what laws are unconstitutionally discriminatory.
To begin with, we must look at who is being discriminated against or affected by the law. Laws that classify by race, national origin or infringe on a fundamental right are examined under what is called “strict scrutiny.” Such a law must be “narrowly tailored” to achieve a “compelling” government interest. It is very hard for a law to survive strict scrutiny analysis.
Laws that classify on the basis of gender and illegitimacy get “intermediate scrutiny” and must be “substantially related” to an “important” government interest and actually further that interest.
This puts the burden on the government proposing the law and the intent of the law should not be discriminatory.
Finally, all other classifications get “rational basis” review, which keeps laws constitutional so long as they are “reasonably related” to a “legitimate” government interest. Most, but not all laws analyzed under rational basis are upheld as passing equal protection muster.
Attorney General Holder declared in his letter that it was the opinion of the Department of Justice that sexual orientation (specifically the right to marry) was the kind of characteristic that was similar enough to gender and race (unchangeable, a political minority and having a history of discrimination) to be reviewed under intermediate scrutiny and that according to their analysis it failed that analysis on all fronts.
The Supreme Court so far has failed to explicitly apply the intermediate scrutiny standard to sexual orientation discrimination, but has used some language in its decisions that indicate the trend is in that direction. The current court has not heard or decided a case in which it has applied equal protection analysis to sexual orientation discrimination and the question is open until they actually speak on the subject.
The battleground on this hot-button issue will be argued in the courts around whether sexual orientation deserves rational basis or intermediate (or even strict) scrutiny. That will turn on how the courts view sexual orientation, whether a characteristic like gender or race, or something not worthy of enhanced intervention.
This guide will hopefully make the following a bit easier to understand.
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