WASHINGTON, D.C. — The Obama administration Friday asked the Supreme Court to hear a challenge to the Defense of Marriage Act that squarely raises the question whether courts should use similar skepticism in reviewing laws targeting gay and lesbian people for discrimination as they do when considering laws based on race, religion or sex.
The Department of Justice told the Supreme Court in a filing on Friday that it should use Edith Windsor's DOMA challenge to decide whether the federal definition of marriage being limited only to opposite-sex couples is constitutional — following a favorable ruling in the case at the appeals court hearing the case this past week.
The move represents a change for DOJ, which previously had asked the Supreme Court to use one of the other several cases presented to it as the case the court would use to resolve the constitutional question. The court is expected to take up the question of which case to hear sometime after the election, potentially at the justices' conference on Nov. 20.
The legal reasoning behind the Second Circuit Court of Appeals' decision in Windsor's case likely led to the change of view. The court ruled that laws like DOMA, which classify people based on their sexual orientation, should be subject to additional scrutiny as part of when courts examine whether laws violate equal protection standards — similar to the way courts view laws that classify based on race, religion or sex.
The Second Circuit was the first federal court of appeals in the country to apply intermediate scrutiny to DOMA, a decision that echoes DOJ's argument to the courts over the past year and a half. Race and religion classifications receive strict scrutiny, but the court found the lower, intermediate, scrutiny to be appropriate in Windsor's case. Accordingly, DOJ is now backing that case as the one the court should use to resolve DOMA's constitutionality.
The House Republican leadership, on the other hand, has asked the Supreme Court to consider a First Circuit Court of Appeals ruling — which did not use intermediate (or strict) scrutiny to reach its decision. In a combined set of cases, Massachusetts v. United States and Gill v. Office of Personnel Management, the court there decided — based on a form of the lowest level of scrutiny, rational basis — that the discrimination faced by gay people and the fact that DOMA represented an exception to the historic federal deference to state marriage laws aided in a decision that the law was unconstitutional regardless of the level of scrutiny applied.
Notably, the Supreme Court has twice declined to apply heightened scrutiny to laws classifying people based on sexual orientation, in a 1996 case striking down a Colorado constitutional amendment barring gay protections in the state and in a 2003 case striking down a Texas sodomy law.
In a supplemental filing today, Solicitor General Donald Verrilli wrote:
[T]his case now provides the most appropriate vehicle for this Court’s resolution of the constitutionality of Section 3 of DOMA. In particular, the court of appeals in Massachusetts was constrained by binding circuit precedent as to the applicable level of scrutiny, whereas the court of appeals here was not so constrained, and its analysis may be beneficial to this Court’s consideration of that issue.
The American Civil Liberties Union, which is representing Windsor along with lawyers from the law firm of Paul Weiss, asked the Supreme Court to take Windsor's case even before the Second Circuit had ruled in the appeal of her challenge.