Windsor v. US

I'm glad that the Second Circuit trashed the Defense of Marriage Act today (pdf), but I'm a particular fan of how they did it. A little secret about the law is that outcomes in court cases matter a lot less than how the outcome is reached. Ok, I admit; that's less of a secret and more of a wildly controversial claim. After all, who really relies on stare decisis outside of confirmation hearings?

But I digress. Edith Windsor's long term partner and spouse under New York State law passed away, leaving an inheritance to her widow. The IRS taxed the estate, leaving Ms. Windsor a tax bill of roughly $383,000. Had Ms. Windsor's spouse been of the opposite sex but all other facts concerning their union been similar, the inheritance would have been exempt from the estate tax.

This sex-based divergence in outcomes forms the basis for Ms. Windsor's equal protection claim. The Southern District of New York decided in Ms. Windsor's favor, but did so on a 'rational basis' test. The rational basis test requires that a law be "rationally related" to a "legitimate government interest." Poll taxes could meet this level of scrutiny. Almost any law can meet a rational basis test, which is why it is considered the lowest standard of scrutiny for Equal Protection and Due Process claims. However, the Defense of Marriage Act was not able to meet this standard at the trial court level, and was dismissed.

The danger of allowing sex and gender discrimination to be decided at the rational basis level is that "rationally related" and "legitimate government interest" are innately squishy phrases. If there were a consensus view in a particular region among cultural  and judicial elites that solidifying a specific set of gender norms constituted a "legitimate government interest," it would follow that legalizing sex-based pay disparities would be a "rationally related" method of incentivizing behavior.


Caveat time: all legal phrases can be abused to say the opposite of what they 'should' mean, and even people of very similar world views interpret these phrases in relatively different ways. That's why we have the context of case law to guide that interpretation. The entire project of common law requires a certain amount of blind faith in good faith.

Chief Judge Jacobs, writing for the second court, affirms that the trial court reached the correct outcome, but should have relied on a heightened scrutiny standard. Heightened scrutiny, as the name implies, is more stringent than rational basis review, but quite short of "strict scrutiny." Strict scrutiny requires that in order for a law to pass constitutional muster, it must utilize the most carefully tailored means in pursuit of a compelling governmental objective. It's a difficult standard to meet, which is why it only applies to laws which target classes of citizens with established histories of purposeful governmental discrimination. Heightened scrutiny and intermediate scrutiny occupy a middle ground, one which seems to apply to legal classifications that are necessary but relate to immutable characteristics.

Middle ground scrutiny is an area of intense debate. Both conservative and liberal justices have attempted to make the land match their own ideals. Conservatives have attempted to downgrade the intensity of intermediate review and limit its scope. Liberals fought to provide more rigorous scrutiny to a wider set of classification schema. This is why even though I applaud the Second Circuit's decision to apply 'heightened scrutiny,' the victory feels a little hollow.

The tell is on the second page of Chief Judge Jacobs' opinion:

Section 3 of DOMA is subject to intermediate scrutiny under the factors enumerated in City of Cleburn v. Cleburn Living Center, 473 U.S. 431 (1985), and other cases.

Cleburn was written by Justice White. Dissenting from the judgment were Marhall, Blackmun, and Brennan. Byron White's opinion did not discuss directly factors that made the case subject to 'heightened scrutiny,' because it discussed 'heightened scrutiny' only in dicta. The court invalidated the ordinance at issue by applying a standard rational basis review. The dissent chides the 'heightened review' as breezy and inconsequential. In contrast, I read Cleburn  to say that the lower court erred in granting any review more stringent than the rational basis test for four reasons:

1. The tasks of regulation require more dutiful consideration than can be provided in judicial review.
2. Lawmakers have already acted to alleviate historical discrimination.
3. The legislative actions undertaken provide evidence that the class is not a politically isolated class, and therefore is not a suspect class.
4. The proposed suspect class is "large and amorphous."

Point (1) speaks more to whether an ordinance is 'narrowly tailored,' than it does to the actual definition of the class, but Cleburn analysis requires that a suspect class defined by the judiciary receives no relief from elected branches, suffers from political isolation in addition to being an immutable minority, and employs bright line membership rules.

This is both a stingy and wrong-headed definition of a suspect class. After all, racial groups do not have bright line membership rules, yet racial classifications require strict scrutiny. Religious distinctions in law require strict scrutiny, but have received relief through the constitutional amendment process (see: Free exercise clause, Amendment 1). This is a poor set of determining factors for a suspect class, and Jacobs' summary of heightened scrutiny incorporates the Cleburn class analysis through the backdoor.

That said, Jacobs' explicit consideration of whether homosexuality suspect class is much cleaner:

A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

What does the proper level of scrutiny get us?

To withstand intermediate scrutiny, a classification must be “substantially related to an important government interest.”  Clark v. Jeter, 486 U.S. 456, 461 (1988). “Substantially related” means that the explanation must be  “‘exceedingly persuasive.’”  United States v. Virginia, 518 U.S. 515, 533 (1996) (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).

That is why liberals want intermediate scrutiny to apply to a wider variety of cases. It's why this decision is better precedent, although dramatically less punchy than simply saying, "Prop 8 doesn't even pass a rational basis review." Judge Jacobs did well in crafting this decision. As a Republican appointee, he has also effectively announced that he is interested in being a judge, not a Justice.