So we’ve washed and rinsed and conditioned and then repeated the whole process and now we are at our final step: the big untangle. For those of you who do not have *the hair*, you might not realize that the big untangle remains just as tough as it was at the beginning even though we’ve attempted to make it easier in our first two steps.
(Side note, when I was little my dad used to have to brush my hair because it was too knotted and tangled and messy for me to be able to do it by myself. If he didn’t do it, we’d have to have our neighbor (a hairdresser) come over and cut the knots out of my hair. The whole process overwhelmed my mother, who to this day just marvels at my hair unable to do/say anything constructive. In this overextended metaphor, my mother is the American public, my father is all of the lawyers from GLAD, Lamda Legal, HRC, etc., and my neighbor is Massachusetts, CT, DC, IA - all the states who got fed up at the untangling process, said “eff this” and just made same-sex marriage happen.)
Get excited. We’re finally going to look at Section 3 of DOMA to determine if it’s constitutional. Are you ready? Leggo.
The Section 3 definition of marriage as being only between one man and one woman is problematic under the Equal Protection Clause (which provides that all laws should apply equally to everyone). Under this definition, all of the laws that deal with marriage on the federal level aren’t being applied equally to homosexual and heterosexual persons because homosexual persons don’t have the right to get married.
Because Section 3 applies to the federal government only it overrides a state’s determinaiton that a same-sex couple is married and says that they are not married for purposes of all federal laws and programs. So, all federal departments and agencies will disrespect the valid state-licensed marriages of same sex couples but not other married couples. As a result, only married same-sex couples are denied all of the rights, protections and responsibilities associated with marriage at the federal level.
Keep in mind that the federal government doesn’t license marriages – states do, but there are many federal programs that take state-granted marital status into account in determining eligibility and extent of coverage. In fact, there are at least 1,138 federal laws in which marital status is a factor. Section 3 of DOMA prevents legally married same-sex couples from accessing benefits that legally married different sex couples get at the federal level.
We’re dividing same-sex and different-sex into two different groups. Separate treatment. Problem. Totally unfair.
But what’s that saying? Life’s not fair. Yeah, truth. Life’s not fair and just because people are being treated differently doesn’t make a law unconstitutional.
And this where the levels of scrutiny come in. If the Court were to use a rational basis level of review, they’d be signaling that they think that sexual orientation shouldn’t be a protected classification and that any justification that can be given for DOMA would work to prove the law Constitutional, even if that justification is lame.
But, if the court were to use intermediate scrutiny, they’d be telling us that sexual orientation is similar to gender and should be sorta protected. Any law that treats people differently based on sexual orientation would be subject to a heightened level of judicial review. Supporters of that law would have to point to an important government interest that is being served by the law and would have to prove that the law is substantially related to serving that interest.
In this case, supporters of DOMA tell us that the government interests being supported by DOMA are: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources.
And guess what? These justifications don’t work. Repealing Section 3 of DOMA would actually save money, there’s case law that tells us that it’s not the job of the Court to determine the morality of the nation, the federal government doesn’t traditionally get involved in the institution of marriage because it’s left up to the states, and wait one hot minute here… um #3?
DOMA actually prevents state sovereignty and democratic self-governance because you’re not letting states that recognize same-sex marriage get their marriages recognized at the federal level. Even if DOMA were to be repealed, other states would still be able to define marriage at the state level.
Because all of the justifications for DOMA are poor, if not completely invalid, it’s likely DOMA would not survive under an intermediate scrutiny analysis. We saw that happen today in the 1st Circuit Court of Appeals and it’s happened previously in federal district court in California.
And that means it might just happen at the Supreme Court level.
Don’t Give Up the Fight
Because it hasn’t gotten to the Supreme Court yet. Remember, the Supreme Court only hears cases they want to hear and they haven’t taken this case yet. Until the Supreme Court takes a look at DOMA, nothing else really matters at the federal level.
The First Circuit decision only applies to states in that circuit – only the Supreme Court has the power to determine that DOMA is unconstitutional for the nation. And Barack Obama’s support of the repeal is nice, but he’s not a Justice. And AG Holder saying strict scrutiny should be used for sexual orientation is awesome… but it’s not legal precedent.
What does this all mean? It means the fight goes on. So get up, stand up. Stand up for your rights. Don’t give up the fight.
- Untangling Same-Sex Marriage: Step 2 – Try a Leave in Conditioner (feministlawprof.wordpress.com)
- Untangling Same-Sex Marriage: Seems Harder than Untangling my Hair (feministlawprof.wordpress.com)
- US District Court Out Of Oakland Declares DOMA Unconstitutional (lezgetreal.com)
- Boston court: US gay marriage law unconstitutional (heraldonline.com)