Beyond levels of scrutiny: Windsor and "bare desire to harm".

• Author: Koppelman, Andrew

ABSTRACT

In United States v. Windsor, the Supreme Court left many people unsatisfied when it failed to identify the level of scrutiny to apply to laws that classify by sexual orientation. That question, however, was not even presented. DOMA makes no reference to sexual orientation, but it does speak of "man" and "woman." It classifies on the basis of sex. Sex-based classifications are presumptively unconstitutional. The Court avoided this rationale for its result, probably because it did not want to reach the question of whether states could deny same-sex couples the right to marry.

The equal protection analysis upon which the Court did rely, the lesser-used "bare desire to harm" doctrine, had nothing to do with levels of scrutiny. It looked past that heuristic device to the underlying purposes of equal protection. This was a rare but appropriate response to an unusual kind of law, one that singles out a particular class and imposes an unprecedentedly broad disability upon it.

CONTENTS INTRODUCTION I. IT'S NOT A SEXUAL ORIENTATION CLASSIFICATION II. BUT IT IS A SEX-BASED CLASSIFICATION III. BEYOND LEVELS OF SCRUTINY IV. DOMA, BARE DESIRE TO HARM, AND RECKLESS INDIFFERENCE V. DISTRACTED BY FEDERALISM CONCLUSION INTRODUCTION

It is a truth universally acknowledged that the big question the Supreme Court evaded in United States v. Windsor, (1) which invalidated section 3 of the federal Defense of Marriage Act (2) (DOMA), is this: what is the appropriate level of scrutiny for classifications based on sexual orientation? (3)

But it is not true. That question was not even presented in Windsor. DOMA did not classify on the basis of sexual orientation. Lower courts were wrong to claim that it did.

DOMA declared, in pertinent part, that the word "marriage," wherever it appears in the United States Code, "means only a legal union between one man and one woman as husband and wife." (4) It made no reference to sexual orientation, but it did speak of "man" and "woman." It classified on the basis of sex. Sex-based classifications are presumptively unconstitutional. The Court avoided this rationale for its result, probably because it did not want to reach the question of whether states could deny same-sex couples the right to marry. The reasoning the Court did rely on, however, was correct and sufficient to dispose of the case before it.

The equal protection analysis upon which the Court relied had nothing to do with levels of scrutiny. (5) It looked past that heuristic device to the underlying purposes of equal protection. (6) This was a rare but appropriate response to an unusual kind of law, one that singles out a particular class and imposes an unprecedentedly broad disability upon it.

Part I of this Article explains why DOMA did not classify on the basis of sexual orientation. Part II explains that it did classify on the basis of sex. Part III examines the cases in which the Court invalidated a statute without expressly elevating the level of scrutiny. One such class of cases is that in which the statute targets a narrowly defined group and then imposes on it disabilities that are so broad and undifferentiated as to bear no discernible relationship to any legitimate

governmental interest. Part IV argues that DOMA was such a statute. Part V examines the curious place of federalism in the Windsor Court's reasoning.

1. It's Not a Sexual Orientation Classification

   Many courts have now held that laws denying same-sex couples the right to marry classify on the basis of sexual orientation. Such laws, the courts say, therefore present the question of whether classification on the basis of sexual orientation is subject to heightened scrutiny. (7) DOMA, which withheld federal recognition from same-sex marriages for all purposes throughout the United States Code, similarly was held by lower courts to classify on the basis of sexual orientation. (8) The Obama Administration reached the same conclusion, (9) and that position was urged upon the Court in many of the briefs. (10)

   The objection that devastates this reasoning is simple. Respondent Bipartisan Legal Advisory Group of the House of Representatives (BLAG) argued in a footnote in its brief on the merits in Windsor that "DOMA does not classify based on a married couple's sexual orientation" because a gay person could enter into a different-sex union that would fall within DOMA's definition of marriage. (11)

   BLAG was right. (12) To see why it was right, consider what it means for a law to classify on the basis of a trait.

   The Equal Protection Clause of the Fourteenth Amendment states that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." (13) The Supreme Court has interpreted this provision as prohibiting arbitrary discrimination or treating similar things dissimilarly. (14) Without more, this produces a very deferential standard of judicial review. "The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." (15) Laws that classify based on "race, alienage, or national origin," on the other hand, "are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest." (16) Almost no legislation has been able to satisfy that test, whereas almost any legislation can meet "minimal scrutiny," which asks whether the statute is rationally related to a legitimate state interest. In the 1970s, the Court devised a third, intermediate level of scrutiny: classifications based on sex or illegitimacy are what has been infelicitously called "quasi-suspect"; they "will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest." (17) This isn't strict scrutiny, but it comes close. The Court has held that "the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an exceedingly persuasive justification for the classification." (18) "The burden of justification is demanding and it rests entirely on the State." (19)

   Everything turns on whether the law employs a suspect or quasi-suspect classification. How do we know when that is happening? A classification is based on trait T if it requires state officials, in allocating rights and burdens, to determine in specific cases whether T is present. Legal consequences must turn on the presence or absence of T. That is what it means to classify.

   The principle should be obvious. Evidently it is not. So here are some examples.

   In Brown v. Board of Education, (20) the state had to determine the race of students in order to decide what school to place them in. (21) That is how we know that the state was using a race-based classification. McLaughlin v. Florida (22) unanimously invalidated a criminal statute prohibiting an unmarried interracial couple from habitually living in and occupying the same room at night. (23) The Court found it "readily apparent" that the statute "treats the interracial couple made up of a white person and a Negro differently than it does any other couple." (24) The race of the defendant was an essential element of the crime that the prosecution had to prove. (25) Justice Stewart, concurring, declared that "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor." (26)

   The principle works similarly with sex discrimination. Frontiero v. Richardson (27) invalidated a law that automatically allowed male members of the Air Force to claim their wives as dependents and therefore receive housing and medical benefits but required female members to prove that their husbands depended on them for more than half their support. (28) If Sharron Frontiero had been male, she would have received the benefits. (29) In order to determine her rights, the Air Force had to determine whether she was male or female. Weinberger v. Wiesenfeld (30) struck down a provision of the Social Security Act that allowed a widowed mother, but not a widowed father, to receive survivor's benefits based on the earnings of the deceased spouse. (31) If Stephen Wiesenfeld had been female, he would have received the benefits he was denied. (32) Once more, administrators had to determine whether he was male or female. The Court later referred to "the simple test of whether the evidence shows 'treatment of a person in a manner which but for that person's sex would be different.'" (33)

   The state is not classifying on the basis of T if it classifies on the basis of X, which overlaps very largely with T. Pregnancy-based classifications are not sex-based classifications, even though only women can become pregnant. (34) In order to decide whether a person's medical conditions arise from pregnancy, the state does not need to decide whether that person is male or female. The degree of overlap doesn't matter. The test looks at the classification that appears within the statute, not at its external effects.

   Nor is the question but-for causation--whether a person would not be adversely affected by the statute if she did not belong to a protected class. Being female is a but-for cause of pregnancy. The question is whether the person administering the law is instructed by the law to classify on the basis of the characteristic and to allocate rights and duties on the basis of that classification.

   So here is the problem. Neither a state law denying same-sex couples the right to marry nor DOMA require any official to determine anyone's sexual orientation. Some laws do. (35) Under the military's now-abandoned exclusion, officials had to decide whether someone was gay in order to decide whether they were to be thrown out. (36) But the marriage laws don't classify on that basis.

   The BLAG brief explained:

   A marriage between a man and a woman would...