Intermediate Scrutiny


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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26 Responses

  1. Avatar Neil Hebert says:

    SSM = same-sex marriage, no? Just clarifying. I support it, but I’m not a junkie.Report

  2. Avatar BradK says:

    Pardon me, Burt, but wasn’t the 1971 decision (or rather indecision) titled Baker v. Nelson?Report

  3. Avatar MikeSchilling says:

    “intermediate scrutiny”

    Marriage is about so many other things, but people talk about SSM as if all that mattered was sex.Report

  4. Avatar Mike Dwyer says:

    So for the legally-dense among us, what happens if DOMA is overturned by SCOTUS? Do the state-level bans go away?

    And realistically, what kind of time frame are we looking at?Report

    • Avatar BradK says:

      DOgMA deals with only the Federal recognition of marriage for the purposes of benefits and other treatment under Federal law. This particular case involves a legally married couple who were denied the spousal deduction for estate taxes by the I.R.S. when one of the couple died. Before DOgMA there was no Federal definition of marriage, it was simply whatever each of the 50 states said it was. DOgMA (like all Federal laws) effectively supersedes the rights of the individual states to define marriage as they — and their citizens — see fit.

      This differs from the Proposition 8 challenge in that that concerns the Federal Constitutionality of a State Constitutional amendment revoking the previously established right of same-sex couples to obtain a civil marriage license.Report

      • Avatar Stillwater says:

        I’m curious about this response in light of Mike’s comment. If the court determines that DOMA conflicts with existing affirmative federal law, then overturning DOMA on those grounds would mean that states could not pass legislation banning SSM, yes? IF the court determines that there is no constitutional grounds for restricting marriage to heteros, then it seems an open question whether SSM can be legislated against by states, no?Report

        • Avatar BradK says:

          The only purpose of DOMA was to impose a new – and separate – definition of marriage for all matters Federal. This is completely separate designation from those whom the states may consider married.

          A same-sex couple can be married in one of several states (or nations for that matter) and be considered married in every way equivalent to a hetero marriage in all matters as they relate to that state (or nation). But in any matter that involves Federal laws, benefits, etc. they are regarded no differently than strangers on the street.

          The operative term here is recognition since the Federal government is not in the business of issuing marriage licenses. They aren’t deciding who may or may not obtain a marriage license, they are merely (and willfully) choosing to disregard certain marriage licenses issued by certain states to certain types of couples. A designation which had been the sole purview of the states for 220 years.

          Remember though, it’s Teh Gheys that are “redefining” marriage.Report

        • Avatar BradK says:

          Not sure what you mean by affirmative Federal law though. Is this in the context of positive Vs. negative rights?Report

          • Avatar Stillwater says:

            Yeah. I’m pretty stupid about this stuff, but that it seems to me if the court determined that DOMA conflicted with existing laws which effectively granted that the rights of individuals of whatever sex to enter into a legal arrangement equivalent to marriage (under the equal protection), then states wouldn’t have the right to prohibit SSM.Report

            • Avatar BradK says:

              I would never consider you stupid. As a Heterosexual-American, this is simply something that doesn’t impact you in any way.

              There are three sections to DOMA, where Section 3 deals explicitly with the Federal recognition of marriage and the benefits which it dispenses. Section 2 gives states the right to ignore valid marriage licenses issued by other states, essentially flipping the bird to the Full Faith and Credit clause.

              Not sure of what Section 1 says, but #2 and #3 are the most damaging.Report

              • Avatar Alan Scott says:

                Brad, when you say that section 2 is flipping the bird to the full faith and credit clause, you’re off base.

                The second half of the full faith and credit clause states “And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

                Which is to say, Congress gets to dictate how the full faith and credit clause applies to these sorts of situations. Which is exactly what DOMA section 2 does.Report

            • Avatar Will H. says:

              I read it a bit different than that, through the lens of the domestic relations exception.
              The federal courts do not involve themselves in marriage or its dissolution, custody or probate issues.
              That is, I see it as reaffirming limits on federal authority rather than affirming some positive right.
              Good and bad to that.Report

        • Avatar BradK says:

          Too many thoughts going on simultaneously….

          If DOMA section 3 is held as unconstitutional by SCOTUS (and one or more of the many DOMA challenges will surely be granted cert.) then the Federal government will be forced to officially recognize same-sex couples who hold a valid marriage license as issued by one of the states (or nations) in the same way as hetero couples always have.

          IOW, Equality under the lawReport

  5. Avatar Alan Scott says:

    Mike, what happens if SCOTUS overturns the law depends very much on WHY they overturn it.

    There are two main reasons DOMA might be found unconstitutional: equal protection and federalism.

    If DOMA is ruled unconstitutional on equal protection grounds, then whatever equal protection standard that DOMA flunks would also apply to state marriage laws. If the court holds that gays are a suspect or quasi-suspect class (as this case does), or accepts the argument that laws banning SSM discriminate on the basis of gender (as some other courts have held), then it’s unlikely that state laws would pass muster.

    But SCOTUS could hold that gay people aren’t a suspect class but that there is no rational basis for DOMA. That’s what they did in Romer V. Evans, and consequently most other SSM cases have simply found that they’re no rational basis for laws prohibiting SSM. In that case, SCOTUS could make it clear that there’s no rational basis for any SSM law, including DOMA and state laws. Or they could craft a narrow decision that applies only to DOMA (The Appelate court decision striking down California’s Proposition 8, for instance, applies the rational basis standard in such a way that it would impact no other state’s laws).

    But SCOTUS could also bypass equal protection concerns entirely. They could hold that DOMA is simply an improper power grab, that the Federal Government is intruding on an area of law that is reserved to states. (And in one case concerning a federal court employee, that the Legislative Branch is improperly dictating policy to the Judicial Branch.)

    If their ruling is based in federalism concerns, then the court will likely strike down section 3 of DOMA (which prohibits the federal government from recognizing any same-sex union as a marriage, or any same-sex partner as a spouse for purpose of federal law), while leaving intact section 2 (which allows states to refuse to recognize same-sex unions from other states). Which would mean that state anti-SSM laws would stay intact.

    It’s possible (but unlikely) that SCOTUS would strike down the whole law because section 3 is unconstitutional. I’m only a lay SSM junkie, so I don’t know much about severabiliy. Perhaps Burt or another lawyer could chip here.

    If section 3 is struck down, there might be chaos regarding people who get married in other states. If a gay couple is leagally married in Massachusetts and moves to Texas, do they still get to file as married on their federal income taxes, for example? SCOTUS might answer those questions with their ruling, but it’s just as likely they’ll leave it up to Congress and/or future court cases. If the whole of DOMA is struck down on federalism grounds, expect even more chaos.Report

    • Avatar Alan Scott says:

      Short version:
      If SCOTUS finds that DOMA is unfair to gays, state laws almost certainly go away.
      If SCOTUS finds that DOMA is unfair to states, state laws stick around but might loose their teeth.Report

      • Avatar Jaybird says:

        One might wish to ask Scalia whether punching hippies was worth it.

        If State Laws go away, I wonder if we’re more likely to have laws written by city slickers for rural folk, or laws written by rural folk for city slickers.Report

    • Avatar Ryan Noonan says:

      This almost exactly mirrors my take, and it’s why the Second Circuit decision is so notable. If this logic prevails (i.e., if Justice Kennedy buys it), then marriage law may be about to get a pretty sweeping makeover.Report

    • Avatar Burt Likko says:

      Alan Scott, I endorse your comment. This is a marvelous description of the impact of the case, and why the grounds of decision are important as well as the result.

      If section 3 is stricken on federalism grounds, then the worries about chaos have some grounding in fact. Doing so calls section 2 into question and leaves open the question of ban-state recognition. If Section 3 violates federalism, then maybe section 2 does as well and Nebraska has to recognize the Iowa license? Or maybe section 2 survives on the theory described above that the FFCC authorizes it, and Nebraska doesn’t recognize the Iowa license, so the Nebraska couple is married for Federal purposes but not married for state purposes.

      But, if Section 3 violates Equal Protection, and gays are recognized as a suspect or quasi-suspect class (quasi-suspect classes get intermediate scrutiny), then the immediate effect will be somewhat chaotic, with a patchwork of legal regimes, but in a short time, the process will sort out. A state law, or a state constitutional provision, may not violate the Fourteenth Amendment of the Federal constitution. So if Federal DOMA violates equal protection, it’s a damn good bet that state-level DOMAs do, too, and one by one they will fall by the wayside, with the result that SSM becomes the law of the land everywhere in the nation.

      The only “chaos” at that point would be that state officials will be reluctant to comply with it, but for the most part, they will do what is required of them by law.Report

      • Avatar DavidTC says:

        Reading this opinion, it appears to first point out the sex discrimination angle. (Which is perfect in this case. If Edith Windsor had been male, she would not have been denied anything. Her sexual orientation is completely irrelevant.)

        But then it instead points out that homosexuals should be a suspect class _anyway_, and decided based the decision on that.

        I am not sure this will work. I can imagine the Supreme Court coming up with some bullshit reason to not add gay people to suspect classes. I would _like_ it to be added, because it that would screw with all the other anti-gay laws. But even without that, even if the court punts on that, the sexual discrimination issue should win it, and the people making the case were smart enough to argue that also.

        So if that logic shows up in court, that the Supremes would basically be _forced_ to say a) yes it obviously is (Seriously, she would have been awarded her spousal deduction if she had been male. It really can’t be any clearer sexual discrimination than that.), and thus b) it is under intermediate scrutiny (This is settled law), and c) no one has ever come up with any government interest at all. (They really have not.)

        The only tiny wiggle room is (c), and that requires the Supreme Court accepting some completely nonsensical government interest.

        I notice, reading the dissents, that they seemed to completely ignore the sexual discrimination aspect, and instead applied ‘rational bias’.

        Regardless of whether or not sexual orientation is protected as a class, (Which is actually debatable.), any law that _talks about_ gender in any way, and especially ones that _restrict_ people from things based _solely_ on gender, is _already_ under intermediate scrutiny. The court really should already know this.Report