DOMA and Heightened Scrutiny

In light of the Justice Department’s announcement that it will not defend the constitutionality of the Defense of Marriage Act (DOMA) because the President believes that heightened scrutiny should apply to distinctions based on sexual orientation, I thought I would repeat this post of mine from August:


Let me ask the following question.  Has there ever been a policy enacted by Congress and by the overwhelming majority of the states that was held unconstitutional because it lacked a rational basis?  I’m sure that the answer is no (though if there is an example, I’d like to hear about it).

This, in a nutshell, states my problem with recent cases analyzing DOMA and Proposition 8.  In my opinion, these courts applied heightened scrutiny even as they said that they were applying rational basis.  If intermediate scrutiny is the correct standard of review for distinctions based on sexual orientation, then I think that the conclusion that DOMA and Prop 8 are invalid would follow.  Under rational basis, I do not see how that conclusion can be correct.

Where are these District Courts getting their confused approach?  The answer is the Supreme Court.  Lawrence and Romer (especially Romer) did the same thing.  They said that they were applying rational basis, but the analysis in those cases does not look like rational basis at all.  In those decisions, though, the gap between reality and the formalities was not so great.  Romer, after all, involved a provision in a single state (Colorado) that was unusual.  Likewise, Lawrence involved a policy that was embraced by only a handful of states.  Accordingly, in both instances one could plausibly say that that the holding was sound under rational basis review.

The same-sex marriage cases cannot be concealed by this smokescreen.  The Justices will have to decide whether sexual orientation is a suspect classification.  And in my view, they will do so (or, more accurately, Justice Kennedy will).

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1 Response

  1. Anon says:

    Professor Magliocca,

    Interesting post.

    It seems to me, however, that while you suggest that “[u]nder rational basis, I do not see how that conclusion can be correct,” you do not identify precisely what the rational basis that supports your viewpoint is. In short, I think it would be interesting for your readers to know which of the reasons provided by the proponents of Prop 8 (or any other reason you can come up with), in your view, supports such a conclusion. A few suggestions advanced by the proponents of Prop 8 included: proceeding with caution when implementing social change; promoting opposite-sex parenting over same-sex parenting; protecting the freedom of those who oppose marriage for same-sex couples; “protecting our children”; and encouraging “accidental procreation.” I simply cannot understand why any of these theories satisfy a rational basis inquiry (nor have I heard other convincing arguments elsewhere). I welcome your thoughts on the matter.