It’s official: The Supreme Court announced today that it will take up the Defense of Marriage Act (DOMA) this term.
This was hardly unexpected. As we previously noted, the High Court was almost certain to hear one or more of these cases after two federal circuit courts struck down DOMA as a violation of equal protection and since the Court almost invariably grants review when a major piece of federal legislation is struck down on constitutional grounds.
Federal circuit courts of appeals are not bound by the decisions of the other circuits; thus, for the sake of uniform application of the law across the circuits, the justices need to determine the constitutionality of DOMA.
Congress passed DOMA by an overwhelming bipartisan majority in 1996 in response to a Hawaii Supreme Court decision that held that the denial of a marriage license to a same-sex couple was subject to strict scrutiny under the state’s constitution. Strict scrutiny, Justice Lewis Powell once quipped, is “strict in theory, but fatal in fact,” since nearly all laws subject to strict scrutiny have been struck down.
The portion of the law under attack is Section 3, which defines “marriage” as a union between one man and one woman—but only for purposes of federal programs and funding. DOMA leaves each state free to decide whether to recognize same-sex marriages for purposes of that state’s laws, but it provides in Section 2—which has not been challenged—that no state is required to give effect to another state’s recognition of same-sex marriages.
More than half a dozen petitions involving challenges to Section 3 are currently pending before the High Court. Windsor v. United States from the Second Circuit (which the Court granted on December 7) emerged as the frontrunner for a likely grant of certiorari because, as court watchers have pointed out, if the Court agreed to hear Gill v. Office of Personnel Management out of the First Circuit, Justice Elena Kagan would likely have recused herself based on her work as Solicitor General.
This will no doubt be a close case, and the justices know that every vote counts. Either the remaining petitions will be held pending the outcome in Windsor, or the Court could deny review as early as next week. Although the briefing and argument schedule has not been set, given the Court’s current docket, it could hear oral argument as early as March and issue a decision by the end of June.
The primary issues the Court will evaluate in Windsor is what level of scrutiny applies to equal protection challenges in this context and whether the proffered rationales for DOMA satisfy that level of scrutiny. The three levels of review are strict scrutiny, intermediate or heightened scrutiny, and rational basis review, which we previously detailed. While the Second Circuit applied intermediate scrutiny in Windsor, every other court that has considered the issue has applied rational basis review.
In February 2011, Attorney General Eric Holder announced that the Justice Department would no longer defend the constitutionality of DOMA—although it would continue to enforce it—and that, in its view, same-sex unions warranted “heightened scrutiny.” Consequently, the House of Representatives hired former Solicitor General Paul Clement to defend DOMA in pending cases.
In defending DOMA, Clement has asserted that the government interests at stake include, among others:
- Preserving a uniform definition of marriage across state lines for purposes of allocating federal benefits,
- Protecting the federal treasury and respecting prior legislative judgments in allocating marital benefits on the understanding that they would apply only to heterosexual married couples,
- Defending state sovereignty and democratic self-governance,
- Exercising caution to avoid “the unknown consequences of a novel redefinition of a foundational social institution,”
- Recognizing heterosexual couples’ unique ability to procreate and incentivizing the raising of children by their biological parents, and
- Expressing a preference for optimal parenting arrangements by encouraging childrearing in a setting with both a mother and a father.
In his dissenting opinion in Windsor, Senior Judge Chester J. Straub stated:
The majority holds DOMA unconstitutional, a federal law which formalizes the understanding of marriage in the federal context extant in the Congress, the Presidency, and the Judiciary at the time of DOMA’s enactment and, I daresay, throughout our nation’s history. If this understanding is to be changed, I believe it is for the American people to do so.
The Supreme Court will now decide whether the Constitution enshrines a right to same-sex marriage or whether it will leave this divisive issue up to the people of each state and their elected representatives to decide, as we think it ought to do.
In addition to DOMA, the Court also agreed to hear Hollingsworth v. Perry, a challenge from the Ninth Circuit involving California’s definition of marriage. Following a 2008 California Supreme Court decision recognizing a right to same-sex marriage, the people of California passed a constitutional amendment (Proposition 8) reinstating the state’s traditional definition of marriage. Soon after, Proposition 8 was challenged in federal court and eventually found its way to the Ninth Circuit, which held that the Equal Protection Clause of the Fourteenth Amendment bans the state from defining marriage as the union of one man and one woman.