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DOJ: Time for the Supreme Court to Treat Sexual Orientation Like Race and Sex



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U.S. government attorneys have made an unexpected request for the U.S. Supreme Court to review two cases involving the constitutionality of the federal Defense of Marriage Act. One is in the First Circuit where the panel assigned to the case decided DOMA was unconstitutional on the basis of “cues” from the Supreme Court that the panel thinks creates a new legal rule for cases involving sexual orientation. The other case is only pending in the Ninth Circuit so in this instance, the petition for review is somewhat unexpected.

At some point it makes sense for the Supreme Court to weigh in on the DOMA question since the law is the subject of a number of apparently coordinated legal attacks precipitated by the failure of the administration to offer a real defense of the law. What is important about the government’s request is the reasoning for making it. The Department of Justice agrees with the courts that have struck down DOMA so they are not asking the Court to correct these decisions. They spend time in their petition attacking DOMA as unrelated to any appropriate state interest. The focus of the petition is on a request for the Court to endorse their novel theory that courts should interpret the Constitution to require “heightened scrutiny of legislative classifications based on sexual orientation.” In other words, any law that affects gay and lesbians as a group would be treated as inherently suspect and would require its drafters to show that the law furthered a compelling or important government interest. These are the standards the Court uses for laws that use racial or gender distinctions. Currently, like all other legislative distinctions, someone challenging the law would have to show the law was entirely irrational.

The implications of holding that sexual orientation is a suspect or quasi-suspect status could be profound. For instance, it might allow the government to successfully argue for denial of tax exemption to religious organizations that distinguish between marriage between husbands and wives and same-sex unions. It would make defense of all state marriage laws infinitely more difficult by shifting the burden to justify these laws to the states (especially where some state attorneys general are refusing to even offer a defense) and increasing the difficulty of making the defense. It is arguable that many of the legal changes meant to be accomplished by the proposed Equal Rights Amendment were accomplished by the Supreme Court’s decision to create a quasi-suspect class status for sex. Something similar could happen if the Court were to decide that no change in the Constitution of federal law is necessary to strike down laws that create “disparate treatment” (the DOJ’s term) based on orientation. The question of what counts as an “orientation” would also be important. Would separate restroom facilities be required in public buildings for the transgendered? Could employers offer benefits to married couples but not to the unmarried?

If the Court decides to take this invitation, litigators would benefit but constitutional law would not.



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