'Ninety Years of Discrimination' Is Enough, Court Declares

What yesterday's decision striking down the Defense of Marriage Act teaches about equality, civility, and the Constitution

Edith Windsor, the plaintiff in the case, was taxed $363,053 more on her spouse's estate than the surviving member of a heterosexual couple would have been. (Eduardo Munoz/Reuters)

My old con-law prof used to say, "This entire subject can be summarized in two sentences. If the government wants to do something to you, it has to give a reason. If it wants to do something bad to you, it has to give a good reason."

Lawyers call that the "level of scrutiny." Readers puzzled by it can learn a lot from the majority opinion and the dissent in Windsor v. United States, the decision Thursday wherein a Second Circuit panel held, 2-1, that the federal Defense of Marriage Act (DOMA) is unconstitutional. The decision is notable not just because 10 straight federal courts have agreed that DOMA is unconstitutional; it is important also because, as Lyle Deniston of SCOTUSBLOG points out, it is the first time a court of appeals has held that laws that classify based on sexual orientation are subject to what con-law types (to widespread distress) call "heightened scrutiny."

The mention of "scrutiny" may trigger a "MEGO" ("my eyes glaze over") moment. But grab your Red Bulls: Understanding "scrutiny" is the key to understanding how the courts approach questions of equality, due process, free speech, freedom of religion, and many more.

Some things are so bad that almost no reason will justify them. Today, segregating people by race is one of those. Laws or regulations that do this are subject to "strict scrutiny," which is shorthand for "explain yourself right now, buster." The only way such a law can pass is if the government can show that (1) it's trying to do something of huge importance and (2) there's really no other way to do it. Some government measures pass strict scrutiny -- but for most, it is considered "strict in theory, fatal in fact."

Most things government does, though, are just ordinary. Driver's license laws are a slap in the face to 15-year-olds; zoning laws mean that some property owners can't strip-mine their lots. For most laws, the "scrutiny" is "rational basis." If there might be a halfway decent reason, then the measure passes "rational basis" review. For most purposes, laws fail this test only when the reason behind them is "animus" -- "we don't like your kind." This test might be paraphrased as, "Is this law crazy or just plain mean? If not, okay."

For everyone who believes law is just partisan politics: Chief Judge Dennis Jacobs, whose majority opinion breaks new ground for gay rights, was appointed by President George H.W. Bush.

There's a gray zone between strict and rational basis. Sex discrimination, for example, is subject to "heightened" scrutiny -- not quite "strict," but pretty darn stern. Until now, the Supreme Court and the Courts of Appeals judged discrimination against gays by asking only, "Is this crazy or mean?" The Supreme Court has held that Colorado's anti-gay-rights initiative and Texas's anti-gay-sex law were motivated by "animus," lawyer talk for "we don't like your kind." But the court has never said that discrimination against gays requires "heightened scrutiny."

DOMA doesn't say that same-sex couples can't marry. If state governments allow them to marry, it says, fine; but other states don't have to recognize that marriage, and the federal government can't. For federal tax and benefit purposes, among others, "the word 'marriage' means only a legal union between one man and one woman as husband and wife."

Edith Windsor and Thea Clara Spyer were a committed couple for more than 40 years, and "domestic partners" under New York law since 1993. But like many same-sex couples, they craved marriage, and thanks to Canadian law, they had it for two years before Spyer died in 2009.

Then came the federal tax bill to Windsor for Spyer's estate: $363,053 higher than an opposite-sex married couple would have paid, thanks to DOMA. Windsor sued for a refund.

The District Court struck down DOMA without deciding a level of "scrutiny." That's because it said the law was animated by the "desire to harm a politically unpopular group" (in other words, "just plain mean"), and thus failed any level of review.

By this time, the Obama administration had announced that it would no longer defend DOMA. A group of members of the House stepped in, represented by appellate wunderkind Paul Clement, and the case proceeded to the Second Circuit. That court's decision was announced yesterday, and Windsor won big.

Here's interesting news for everyone who believes law is just partisan politics: Chief Judge Dennis Jacobs, whose majority opinion breaks new ground for gay rights, was appointed by President George H.W. Bush; Judge Chester J. Straub, who insists that preserving traditional marriage justifies DOMA, is a Democrat appointed by Bill Clinton. The two opinions are readable even for non-lawyers, and worth a few hours of your time.

The heart of Judge Jacobs's majority opinion is his conclusion that gays and lesbians are a "discrete and insular minority," meaning that they need judicial protection from majority ill will. He cites the criteria from case law about how to decide which groups qualify for "heightened scrutiny":

A) [H]omosexuals 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.

In his discussion of whether gays have "historically" been persecuted, Jacobs writes:

[The congressional group defending DOMA] argues that, unlike protected classes, homosexuals have not "suffered discrimination for longer than history has been recorded." But whether such discrimination existed in Babylon is neither here nor there. BLAG concedes that homosexuals have endured discrimination in this country since at least the 1920s. Ninety years of discrimination is entirely sufficient to document a "history of discrimination."

Because the majority finds homophobia rampant in law and culture, it employs "heightened scrutiny" against DOMA and strikes it down.

Judge Straub stakes most of his defense of the statute on the federal government's interest in refusing recognition to same-sex marriage: "It is squarely about the preservation of the traditional institution of marriage and its procreation of children."

[R]eserving federal marriage rights to opposite-sex couples "protect[s] civil society," ... because without the inducement of marriage, opposite-sex couples would accidentally procreate, giving rise to unstable and unhealthy families. Marriage thus plays the important role of "channel[ing opposite-sex] sexual desires" which, in the absence of marriage, would result in unstable relationships, which have been documented to be harmful to children. ... DOMA advances this interest, in that the state only needs to provide incentives to opposite-sex couples in the form of marriage, because only opposite-sex couples have unintended, unplanned, unwanted children.

Though Windsor is a breakthrough for gay rights, I doubt that the "heightened scrutiny" holding will survive. The Supreme Court, I think, will strike DOMA down. But in the Marble Palace, a good opinion is one that gets five votes, and there are so many other ways to hold for the Edith Windsors without breaking new ground. DOMA arguably violates the power of states to govern marriage -- who is Uncle Sam to second-guess Massachusetts or New York about what's a valid marriage? Or it could easily fail "rational basis" review, on the grounds that the only "interest" it advances is dislike of gays.

But whatever comes later, Windsor is an important way-station on society's march to a new understanding of equality. It also displays American law at its best -- humane, clear-eyed, and civil.