The federal courts and marriage equality: who decides?

• Author: Mezey, Susan Gluck
• Position: Symposium on LGBT Rights

"Within its restricted limits, the power granted to American courts to pronounce on the constitutionality of laws remains one of the most powerful barriers ever erected against the tyranny of political assemblies.(1)

Although it was unlikely that de Tocqueville was thinking of marriage equality cases when he uttered his famous observation about the United States courts almost two hundred years ago, the recent litigation demonstrates that unelected federal court judges are still being asked to erect "powerful barriers" against the democratic decision making process. Scholars and activists, and likely most of the American public, are well acquainted with the outcome of the marriage litigation over the last several years, but while extensive, the commentary on these cases has paid little attention to the issue of whether the courts are fulfilling the mission de Tocqueville envisioned for them. This article examines marriage equality litigation in trial and appellate courts in five circuits over the past two years, focusing on the judiciary's view of its own role in balancing its duty to defer to majoritarian decision makers against its responsibility to shield minorities from discriminatory policies. (2)

The history of reform movements in the United States shows that groups with little political power seek judicial intervention to offset their inability to influence the legislative process. An important determinant of the success of a group's litigation strategy is the degree to which the courts adhere to the doctrine of judicial restraint at the cost of diminishing their role as protector of minority rights. One of the first obstacles for litigants seeking social or political change is to persuade the courts to scrutinize a challenged law more rigorously, that is, to apply a higher level of scrutiny to it, than is customary in evaluating ordinary social or economic legislation. Following in the path of the social reform movements that preceded them, same-sex marriage litigants asked the judiciary to counter the results of the democratic policy making process by removing prohibitions on same-sex marriage.

Part I of this article discusses the scrutiny doctrine and its relationship to the debate over judicial restraint. Part II addresses the Supreme Court's reluctance to adopt an unambiguous position on scrutiny for challenges to laws based on sexual orientation. Part III discusses the litigation over the 1996 Defense of Marriage Act (DOMA). Part IV presents a general overview of the federal court litigation against marriage restrictions. Part V examines marriage equality rulings in the Fourth, Sixth, Seventh, Ninth, and Tenth Circuits.

1. THE SCRUTINY DOCTRINE

   In addition to determining the likely outcome of the case, a court's decision about the proper level of scrutiny has important implications for the judiciary's role in the policy making process. Applying a lower level of scrutiny signals a willingness to abide by policies arising from majoritarian decision making. Applying a higher level of scrutiny indicates a concern that the democratic process may be detrimental to the interests of vulnerable minority groups.

   Known as the scrutiny doctrine, this judicially derived principle emerged over fifty years ago from struggles over minority group rights. (3) It describes the courts' role of engaging in a more searching inquiry of laws affecting groups that have been subject to discrimination and whose members lack sufficient political power to prevent invasion of their rights. The scrutiny doctrine encompasses the relationship between courts and legislatures, and with the application of a higher level of scrutiny, the courts put the government on notice that they are less inclined to defer to policies emanating from representative bodies or the ballot box. Although its meaning has been altered over time, the courts still invoke the scrutiny doctrine in determining the degree to which, echoing de Tocqueville, they view their adjudicatory role as insulating vulnerable minorities from majoritarian decision making.

   In most cases, when courts apply the highest level of scrutiny--strict--they presume the challenged law unconstitutional and require the government to prove it has a compelling justification for the law that is sufficiently narrow to achieve its goal. Limited to laws implicating race, ethnicity, and national origin, the strict scrutiny standard invariably leads to such laws being stricken, as the government is unable to satisfy this standard. Using the same approach, the courts apply this same level of scrutiny to laws affecting fundamental rights protected by the Due Process Clause of the Fourteenth Amendment.

   The situation is reversed when courts apply minimal scrutiny, the lowest level, also called rational basis review. When adjudicating challenges to ordinary economic or social legislation under minimal scrutiny, courts invariably defer to the legislature's judgment by presuming such laws constitutional. The courts merely ask whether the law is rationally related to a legitimate state interest without inquiring into the purpose and effect of the law. States are not compelled to produce evidence to justify their reasoning in enacting the law, and courts accept almost any conceivable reason the state proffers.

   In 1976, the Supreme Court introduced a middle tier, called heightened or intermediate scrutiny, in which the outcome is more uncertain. Primarily applied in cases implicating sex or gender discrimination, intermediate scrutiny requires the government to show that the law furthers an important objective and is substantially related to that end. (4) Using this approach, the courts are more likely than not to declare the challenged law unconstitutional. (5)

   More recently, the Supreme Court appears to have relied on a version of minimal scrutiny known as "minimal-plus" or "rational basis with bite review." (6) In such cases, the courts examine a challenged law more carefully if the law appears to stem from dislike of, or a desire to harm the targeted group. The courts strike a law if they believe the law was based on an impermissible motive and enacted to harm a targeted group. (7) The Supreme Court, however, has applied this level of scrutiny inconsistently and has failed to provide sufficient direction to lower courts regarding its application.

2. THE SUPREME COURT AND LGBT LITIGATION (8)

   The high court's rulings in its most recent gay rights cases illustrate the uncertainty of the status of the scrutiny doctrine in due process and equal protection challenges to classifications based on sexual orientation. In Romer v. Evans, (9) a (1996) decision, the Court appeared to introduce a new version of scrutiny. It held that a Colorado constitutional amendment violated the Fourteenth Amendment's Equal Protection Clause by preventing local communities from adopting ordinances against discrimination on the basis of sexual orientation. (10) Without explicitly raising the level of scrutiny, the majority largely based its opinion on its belief that the policy stemmed from animus toward the gay and lesbian community. (11) In Lawrence v. Texas, (12) a 2003 opinion striking an anti-sodomy statute, the Court found that the law, aimed at same-sex couples only, abridged the Due Process Clause of the Fourteenth Amendment. (13) Again, without clarifying its position on the appropriate level of scrutiny, the majority stressed that laws cannot impose (majoritarian) principles of morality on society. (14) More recently, in 2013, the Court decided in United States v. Windsor (15) that DOMA violated the equal rights principles of the Fifth Amendment. (16) The majority was persuaded that DOMA harmed same-sex couples and their children and arose from discriminatory purposes. (17) Once again, the Court did not discuss scrutiny despite the parties' detailed attention to the issue and the voluminous amicus curiae briefs from both sides, urging the Court to resolve the uncertainty about the scrutiny doctrine.

   The opinions in this trilogy of cases demonstrate the Court's occasional willingness to stray from traditional minimal-scrutiny analysis. By delving into the purpose and effect of the challenged laws, the Court signaled its inclination to abandon principles of judicial restraint and override the democratic process when it believed the policies stemmed from a motivation to harm. Despite the favorable outcome for the plaintiffs, however, the opinions embodied vague and contradictory language, sending mixed signals about the Court's approach to scrutiny. (18)

3. THE DOMA LITIGATION

   The initial challenges to DOMA in the Florida, California, and Oklahoma federal courts were dismissed in the years preceding Windsor, with the courts holding that only couples married in the United States had standing to sue. (19) Soon after, when groups of married couples filed suit in the First and Second Circuits, the courts changed the course of marriage equality by ruling in their favor. The First Circuit rejected the plaintiffs' request to apply heightened scrutiny, determining that it was not authorized to do so. (20) It observed, however, that the high court had established precedent for a more careful review of laws when "the protesting group was historically disadvantaged or unpopular...," (21) Without formally raising the level of scrutiny, the court concluded that DOMA was unconstitutional because it had no rational basis. (22)

   In Windsor v. United States, (23) the Second Circuit broke new ground by declaring that laws based on sexual orientation merited heightened scrutiny, citing the history of past discrimination against members of the LGBT community. (24) Although the court formally adopted heightened scrutiny, it retained minimal scrutiny language and found DOMA unconstitutional because it lacked rationality. (25) Thus, the circuits arrived at the same conclusion despite their differing approaches to the scrutiny...