When the U.S. Supreme Court made history in June by striking down the Defense of Marriage Act, the substantive holding was immediately clear: the discriminatory federal law “demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.” What was not exactly clear was what, if any, sort of legal standards the justices set for future courts. A federal appeals court ruling issued Tuesday finds the justices set a new, heightened standard for justifying discrimination on the basis of sexual orientation.This came in a case where the court found that a juror could not be dismissed from a jury siimply because he was gay.
But they went further and said that the actions of the Supreme Court meant that gay people should be subject to "heightened scrutiny".
Ari Ezra Waldman:
Many scholars believe that discrimination on the basis of sexual orientation demands heightened scrutiny. We meet all the requirements: we have been burdened by discrimination for generations, our sexuality is irrelevant to our ability to serve as jurors, we have traditionally lacked the political power to realize our full rights in the political sphere, and we have a defining characteristic essential to our identity as a group.
But the Ninth Circuit went a step further and argued that the Supreme Court'sWindsor decision suggests that heightened scrutiny is appropriate. Review inWindsor, the Ninth Circuit wrote, was not the traditional lowest form of review that had for years been applied to anti-gay discrimination. It was something more, something higher, something "intermediate."
How could the Ninth Circuit justify this conclusion if Windsor never explicitly said it was using heightened scrutiny?
The argument is simple: Look at what the Court actually did, not what it said. In Lawrence v. Texas, for example, the Supreme Court was similarly confounding, but by looking at the Court's decision, it was clear it was not using traditional rational basis. After all, the state had to do more justifying and the cases Lawrence relied on also used something more than rational basis. The same was true for Windsor. The state had to do a lot of work to justify DOMA, the precedent Windsor cited all used more than rational basis, and the Windsor Court did not go through a list of possible rational justifications for DOMA, all of which would normally be the case in a standard rational basis case.
If the Ninth Circuit's opinion catches on, if sexual orientation discrimination gets heightened scrutiny post-Windsor, our battle is more than half over. It is hard to justify banning us from the institution of marriage under rational basis review; heightened scrutiny takes away all doubt.