Is DOMA Unconstitutional?

I’m going to associate myself with Jack Balkin in saying “no” – at least not based on the arguments advanced in the recent cases out of Massachusetts.

DOMA is a bad law. I’d like to see it repealed. I think gay and lesbian civil rights groups should press President Obama really hard to declare that he agrees, as I believe he has in the past. I think it would be instructive for there to be a debate and a vote on repeal in the Senate even if the vote lost.

But if I understand the two recent decisions, they don’t hold water. The tenth amendment argument amounts to the bald assertion that the subject of marriage is exclusively a state matter. But, as Balkin points out, if that’s true then all the Federal laws that relate to marriage are at least problematic – including those benefits that the plaintiffs are suing for access to. Moreover, since marriage is nowhere enumerated as reserved for the states, the decision, if upheld, would seem to open the gates to a flood of litigation to strike down the vast Federal edifice that does not clearly fit into one or more clearly enumerated Federal powers.

As for equal protection, Judge Tauro claims that the law violates a “rational basis” test. I’ve always been puzzled by the idea that any law can fail this test. After all, a variety of arguments have been advanced defending the traditional definition of marriage. They may be lousy arguments – I myself, having once entertained and even authored some of them, have come to the conclusion that they are wrong – but what does it mean to say that they are “irrational?” I suppose if someone said, “we should not permit gay marriage because it will lead to cooties” then one could point out that cooties don’t exist, unless you’re referring to their original meaning (lice) in which case, no, it won’t. But if the argument is “permitting gay marriage will ultimately undermine the norm of marriage among heterosexuals” – well, we obviously can’t definitively say it will or it won’t until the experiment is tried. And saying that this norm is not a legitimate government interest is not only bizarre but is clearly contradicted by the opinion, which accepts the legitimacy of discrimination based on marital status.

There is, however, an argument for striking down DOMA that would be perfectly consistent with precedent. And that is to claim that gays and lesbians are, indeed, a “suspect classification” subject to review under “strict scrutiny” which, in turn, would require narrow tailoring of the discrimination and a compelling state interest to justify it. (In Korematsu, which established the whole concept of strict scrutiny, the Court concluded that the removal and internment of American citizens of Japanese descent who lived on the Pacific Coast met this most stringent standard.)

The usual bases for concluding that strict scrutiny is appropriate are: the group in question has historically been subject to invidious discrimination; the group is an insular minority; the group possesses some immutable trait that is fundamental to their identity; and/or the group is somehow systematically disadvantaged in the political process.

Gays and lesbians clearly meet at least some of these criteria. Unquestionably they meet the first. They don’t clearly meet the second inasmuch as gays and lesbians are born into families everywhere, but gay and lesbian communities could be understood to be insular minorities; at any rate, the question is ambiguous. To a considerable extent they meet the third criterion. While the etiology of homosexuality is still very much unknown, the question of whether homosexuality is innate or chosen is no longer really subject to scientific debate. On the other hand, the trait is not uniform in its expression. There are certainly individuals who have no attraction to the opposite sex, and certainly individuals who have no attraction to the same sex, but there are also individuals in the middle – and then there are the variety of other sexual orientations lumped together under the expression “transgendered.” On yet the other hand, traditionally suspect categories like race and national origin are also potentially muddy, and the pretty straightforward category of sex (male vs. female) is not a suspect classification, and is subject to “intermediate scrutiny” – whatever that is. On balance, I think there is a strong argument that they meet the third criterion. Finally, the fourth criterion probably doesn’t apply except in a sense that can readily be collapsed into the first criterion; resident aliens, for example, are plainly disadvantaged in their access to the political process, as are children, but other than because they are the subject of animus and discrimination, I can’t see how gays and lesbians are.

How discrimination gets assessed is a bit peculiar. Discrimination based on religion has to run the gauntlet of passing “free exercise” muster, but for equal protection purposes is subject only to rational basis scrutiny. But alienage is considered a suspect classification. Meanwhile, sex is subject to “intermediate scrutiny,” basically because the courts have been reluctant to conclude that the manifest biological differences between men and women have no consequences that the law needs to be cognizant of.

While remaining cognizant of the somewhat perplexing nature of the decision of what gets strict scrutiny and what gets less-than-strict scrutiny, it seems to me that the argument that gays and lesbians deserve greater than mere rational basis scrutiny is very strong. And if DOMA were subject even to intermediate scrutiny, I can’t imagine that it would pass constitutional muster. I’m trying to imagine a similar Federal regulation that discriminated against women that would – probably something to do with discrimination by the military in combat situations or some such, and even then I doubt it.

Reluctance to make this move has everything to do with reluctance to “force” significant social change on society. But that’s exactly what the Equal Protection Clause has historically been used for by the courts: to force social change. If we’re reluctant to go that route, we should be honest that what we really want to do is roll back the scope of Equal Protection as such, and roll it back for distinctions based on race, national origin, etc. But that suppressed desire is not a good reason to deny the facts about what invidious discrimination against gays and lesbians actually is.