Sign Up to Receive Email Action Alerts From Issa Exposed

A look at the dissent in yesterday’s Second Circuit decision in Windsor v. USA

DOMA trials Windsor

By Scottie Thomaston

Yesterday the big news was the 2-1 decision by the Second Circuit Court of Appeals in Windsor v. USA striking down Section 3 of the Defense of Marriage Act as unconstitutional, while at the same time (and for the first time in history) applying a heightened form of judicial scrutiny to laws that classify people on the basis of sexual orientation.

The lineup of judges in the outcome of the case is quite unusual.

The majority opinion was written by Judge Dennis Jacobs, a strongly conservative judge who has issued right-leaning opinions on issues like so-called “partial birth” abortion. And joined by Judge Christopher Droney, an appointee of President Obama.

The dissent was penned by a single judge, Judge Chester Straub, nominated to the circuit by President Clinton.
More below the fold…

As we wrote yesterday, the majority considered all the factors required to apply heightened judicial scrutiny – a standard of review the Justice Department believes is appropriate for classifications based on sexual orientation.

An aside here: equal protection principles protect people, not groups. All laws classify, and typically courts use the minimum standard to review their constitutionality: they consider whether the law is ‘rationally related’ to a ‘legitimate state interest.’ Usually, it’s easy for a law to pass this minimal form of review. It is mostly reserve for laws in the realm of economics, where judges give legislators a lot of room to regulate the economy and social programs as they see fit. But while all laws could be seen as “classifying” different groups, there are certain classifications of people that courts generally frown upon and look at with suspicion. That’s because when legislators write some laws to classify certain groups, there are likely to be discriminatory, racist, or sexist motives involved. These classifications face heightened forms of judicial scrutiny. There are different types. Under a heightened form of judicial scrutiny, importantly, the burden of proof shifts and the defendants of the law must prove the law is constitutional. When a classification is particularly harmful, as race is, it’s considered “suspect”, therefore, race is a “suspect class.” Suspect classifications, when considered by courts, are reviewed under the strictest form of judicial scrutiny, known as “strict scrutiny.” That’s because a very strict review of a law helps discern any inherently racial motive. Laws reviewed under that standard must be narrowly-tailored to a compelling government interest, and they must use the least restrictive means of protecting that compelling government interest. Needless to say, it’s difficult, but not impossible, for a law to survive that standard.

But for classifications based on sex and gender, the courts have applied an ‘intermediate’ level of judicial scrutiny. Under this standard, a law classifying people based on sex must be substantially related to an important government interest. It allows courts to look closer at laws that seem to be designed to group people based on their sex. This is the standard the Second Circuit has applied in Windsor. Intermediate scrutiny applies when a “quasi-suspect class” is involved, as opposed to simply a suspect class.

The appeals court looked at all the factors for a suspect classification and applied the standard. This is important at the Second Circuit, because they have never reviewed any other case in history in which they reached a decision on the level of scrutiny applied to sexual orientation. The circuit was essentially a ‘blank slate’ on that issue. Now it has a precedent applying this heightened form of scrutiny.

And the majority applied this form of review to Section 3 of DOMA and found it couldn’t pass. Notably, in its opinion, the majority even suggested that the Bipartisan Legal Advisory Group (BLAG) who defended the law, all but conceded that the law may not pass heightened scrutiny.

The dissent takes issue with applying heightened scrutiny, and believes the court should have applied rational basis review. As he writes, under the standard he would have used, “courts look to any “conceivable basis” for the challenged law, not limited to those articulated by or even consistent with the rationales offered by the legislature.” And under this view, the plaintiffs, not the legislators, have to prove that the law is irrational. The judge says that no other circuit has applied heightened scrutiny, nor has the Supreme Court.

The dissenting judge analyzes all the proffered rational bases for the law: procreation, child-rearing, preserving the public fisc, the traditional definition of marriage, and suggests that any one of these could serve as a rational basis for the law.

Importantly, though, the majority opinion notes that it doesn’t take issue with the dissent’s contention that Section 3 of DOMA would pass rational basis; it reviewed the law under a heightened form of scrutiny, and the law failed under that standard.

Moreover, in his view, “[t]he discrimination in this case does not involve a recognized suspect or quasi-suspect classification. It is squarely about the preservation of the traditional institution of marriage and its procreation of children.”

He suggests, “[m]arriage today, according to the federal government, means what it has always meant—a15holy union, essential to the survival of the species, between a man and a woman, the principal16purpose of which is to encourage responsible child rearing.”

The judge agrees with BLAG that Baker v. Nelson forecloses any challenge to the definition of marriage. Baker, a one-sentence summary dismissal of a state same-sex marriage case in 1972, is seen as a bar to many of these challenges: the judge in Hawaii’s marriage case Jackson v. Abercrombie applied it; the judge in Sevcik v. Sandoval in Nevada strongly hinted at the initial hearing that he believes it is controlling, though there is no opinion yet in that case. But in other DOMA challenges (and indeed in the majority opinion in this case) and in Perry, the Prop 8 case, judges have held that Baker does not apply for various reasons: the ‘precise’ issues must be present in order to apply it, and it does not apply as forcefully if newer precedent has eroded it.

The dissenting judge views the state’s definition of marriage, and the claims presented in the Baker case as exactly the same as this DOMA challenge. And the judge writes that subsequent precedents like Lawrence or Romer have not eroded the case because they either had nothing to do with it or explicitly, in his view, disavowed it. (In Lawrence, Justice Kennedy has a line in his opinion that says it should not be read to change the definition of marriage.)

Ultimately, the judge would (much like the judge in Jackson v. Abercrombie) leave the decision up to the political process, “[w]hether connections between marriage, procreation, and biological offspring recognized by DOMA and the uniformity it imposes are to continue is not for the courts to decide, but rather an issue for the American people and their elected representatives to settle through the democratic process. Courts should not intervene where there is a robust political debate because doing so poisons the political well, imposing a destructive anti-majoritarian constitutional ruling on a vigorous debate. Courts should not entertain claims like those advanced here, as we can intervene in this robust debate only to cut it short.”

The dissent seems to ignore one aspect of accepting that classifications based on sexual orientation are suspect that was considered and accepted by the majority: the relative political powerlessness of gays and lesbians. That was discussed in the briefs, after expert testimony was given at district court. Though the majority opinion notes that gays and lesbians have gained more rights and more power, they note that is not the standard to judge political powerlessness. Gays and lesbians have lost many fights in ballot initiatives, and there is still no ENDA. There are more openly gay judges, but no high level gay cabinet appointees. So one wonders how the idea of leaving it up to the political process squares with the political powerlessness of gays and lesbians.


  • 1. Bob  |  October 19, 2012 at 10:31 am

    Yeah!!! for heightend scrutiny

  • 2. specificplan  |  October 19, 2012 at 10:32 am

    Yeah, because we left the integration of black people and women's rights up to the political process.

  • 3. Bob  |  October 19, 2012 at 10:35 am

    yesterday was the anniversary of personhood day,,, on oct 18 1929 five Canadian women won the right to be declared PERSON"S

  • 4. davep  |  October 19, 2012 at 10:47 am

    I'd like to pick this apart if I may:

    He suggests, “[m]arriage today, according to the federal government, means what it has always meant—a holy union, essential to the survival of the species, between a man and a woman, the principal purpose of which is to encourage responsible child rearing.”

    1. Civil marriage is not, nor has it ever been, a "Holy union". It is jaw dropping that a Supreme Court judge would write such a statement in a dissent. It is an untrue statement and it reveals another agenda by referring to religious beliefs in a matter of civil law.

    2. Civil marriage is not, nor has it ever been "essential to the survival of the species". He is confusing civil marriage with procreation. Two completely separate things.

    3. "Between a man and a woman". He is resorting to a cheap tautology, essentially saying 'civil laws regarding marriage cannot be changed to include same sex couples because the law says it does not currently include same sex couples'. Not only does the statement fail to pass any logical scrutiny, it is clearly not true because several states (and a dozen other countries) have already made such changes to their laws.

    4. "the principal purpose of which is to encourage responsible child rearing". Wrong on several counts. The principle purpose of civil marriage is to establish legal kinship of an unrelated couple, to make them legally 'a family'. This affords the couple important legal rights and protections and also gives them certain responsibilities, all of which are intended to benefit both the couple and the state. And all of this is true even for couples who cannot or choose not to have children.

    Now the state may also have an interest in all couples who have children or who may raise children to do so within a legal civil marriage, but that would include ALL couples who may raise children, not just those couples who have & raise their own biological children. The state would have just as much interest in adoptive couples and same sex couples who may raise children to do so within a legal civil marriage as it would an opposite sex couple raising their own biological children.

    This dissent has illogical conclusions based on inaccurate explanations of what civil marriage is and incorrect explanations of what states interests are served by civil marriage.

  • 5. french62  |  October 22, 2012 at 6:21 am

    Thanks for the spot on clarification. A great distillation of the legal speak in the article.

  • 6. Eric  |  October 19, 2012 at 11:33 am

    Speaking to political powerlessness, we can't even get domestic partnerships/civil unions passed, unless the law also allows heterosexual seniors to abuse the Social Security system and receive extra benefits that are paid for by, but unavailable to same-sex couples.

  • 7. SeattleRobin  |  October 19, 2012 at 6:28 pm

    The marriage equality law passed here in Washington still allows for domestic partnerships between couples (straight or gay) over a certain age. It's not a matter of abusing Social Security, there are all sorts of things that have to be considered.

    After my dad died my mom remarried when she was in her 60s, and her new husband was in his 70s. They are both religious people, so anything other than marriage would not have felt right to them.

    However, because of that, they had to hire a lawyer and went through a fairly complex legal process to protect their individual assets that they brought into the marriage, especially in light of the fact her new husband has eight children from his previous marriage. (In other words, they had to set it up so that his children did not automatically become heirs to my mother's pre-existing assets, and so on.) A domestic partnership would have given them most of the rights of marriage, without having to go through some of that legal hoop jumping.

    It's kind of the reverse of the situation most gay couples face, when they have to pay extra to employ a lawyer to set up all sorts of complicated arrangements because the couples don't have access to marriage.

    I just wanted to mention this, because there are very real reasons why an older couple may find a domestic partnership a better arrangement, without it being any sort of an abuse, or cheating a system.

  • 8. Greg B.  |  October 20, 2012 at 6:44 am

    As with most things, the anti-gay lobby wants to have it both ways. They puff up their chests and boast about how 32 states have amended their constitutions to ban same-sex marriage and that they win every single time the question is put to voters. Then when the idea that the LGBT population is politically powerless works against them, the balk at it and point out the gays are a well funded, highly connected political powerhouse.

  • 9. Mike in Baltimore  |  October 21, 2012 at 2:27 am

    If the GLBT community was a political powerhouse, there would not be any problem with us getting married in any state, because the laws in all states would not have been changed to prevent same-sex marriages.

    Because many state's laws (and in most cases, their constitutions) have been amended (by popular vote (directly or indirectly) to prevent all marriages except A man and A woman (doesn't this reflect unkindly upon Robme, considering his grandfather's and great-grandfather's multiple wives?), it is prima facie evidence that the GLBT community is NOT a political powerhouse, but actually rather politically powerless, at least on this issue (and thus on how many other?).

  • 10. Curious  |  October 19, 2012 at 12:21 pm

    Hopefully there will be editorials and articles in legal journals and law school examination of these arguments. Exposing bigotry and prejudice, like a boil to fresh air and sunlight as it were. Moreover, I wonder how this may impact the Hawaii and Nevada marriage cases, with the Intermediate scrutiny determination. The Nevada Mormon judge must wonder how to counter that determination as he writes his decision.

  • 11. Greg B.  |  October 19, 2012 at 8:25 pm

    The dissent is absurd. First of all, we all know that in order to be considered binding precedent, the facts in the cases must be substantially similar. "Baker" essentially asked (40 years ago) if a state ban on same-sex marriage violates the Constitution. "Windsor" asks if the federal government ignoring a marriage legally performed in a state violates the Constitution. Those are two entirely different questions with entirely different sets of facts. And the idea that the court shouldn't step into politically charged issues. So I guess in Straub's view a politically persecuted minority can't turn to the court for protection of their rights because they are politically persecuted. Wow!

  • 12. Annett  |  March 5, 2014 at 8:21 am

    I am really grateful to the holder of this web site who has shared this impressive
    article at here.

  • 13. Bullets For Sale  |  April 20, 2014 at 1:10 am

    I do accept as true with all the ideas you have introoduced for your post.
    They are really convincing and can definitely work.
    Still, the posts are very brief for newbies.
    Could yyou please prolong them a little from subsequent time?

    Thank you for the post.

    My web page :: Bullets For Sale

  • 14. 5.56 ammo for sale  |  April 27, 2014 at 12:58 am

    If you would like to take a good deal from this paragraph then you have to
    apply these methods to your won weblog.

    Feel fre to visit my blog – 5.56 ammo for sale

Having technical problems? Visit our support page to report an issue!