The following contribution to our same-sex marriage symposium is written by Andrew Koppelman, John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University. He has written many books and articles, including Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale U. Press 2006).

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The Supreme Court is not likely to impose same-sex marriage on the entire country, so Perry v. Schwarzenegger has been a quixotic case from the beginning. That's why experienced gay rights litigators were so reluctant to support it. The Court is likely to find some procedural trick in order to avoid hearing the case at all.

The challenge to the Defense of Marriage Act (DOMA) is different. The Court can strike down this stupid and brutal law without bringing same-sex marriage to any state that does not want it. Its unconstitutionality follows from recent opinions by Justice Kennedy, the swing vote on the Court, and I predict that he will write the opinion striking the law down.

DOMA, enacted in 1996, was a reaction to a Hawaii Supreme Court case that seemed likely to legalize same-sex marriage there. A state referendum stopped that, but the case focused public attention on the marriage issue and so triggered a national movement. A quarter of all Americans now live in states that recognize same-sex marriage or its functional equivalent.

In pertinent part, DOMA defines marriage for federal purposes as "only a legal union between one man and one woman as husband and wife." (It also declares that states don't have to recognize same-sex marriages from other states, but that was already the law.) Same-sex spouses may not file joint tax returns. The debts of same-sex spouses incurred under divorce decrees or separation agreements are dischargeable in bankruptcy. Same-sex spouses of federal employees are excluded from the Federal Employees Health Benefits Program, the Federal Employees Group Life Insurance program, and the Federal Employees Compensation Act, which compensates the widow or widower of an employee killed in the performance of duty. Same-sex spouses are the only surviving widows and widowers who do not have automatic ownership rights in a copyrighted work after the author's death. Same-sex spouses lack federal protection against enforcement of due-on-sale clauses, which allow a lender to declare the entire balance due and payable if mortgaged property is transferred, and which could compel the loss of the family home if the holder of the mortgage died and the spouse inherited the property. Same-sex spouses are denied the benefit of the Family and Medical Leave Act of 1993, which provides for unpaid leave to employees for "care for a spouse." Same-sex spouses may not receive benefits under the Social Security Act's Old Age, Survivors, and Disability Insurance Program. Same-sex spouses are denied preferential treatment under immigration law and, therefore, are the only legally married spouses of American citizens who face deportation. With the abolition of "don't ask, don't tell," it is only a matter of time before, for the first time in American history, the lawful spouse of a soldier killed in battle is denied any survivor's benefits.

By the end of 2008, approximately 32,000 same-sex couples had married in the United States, and 80,000 more were domestic partners, reciprocal beneficiaries, or united in civil unions. That creates a situation that did not exist immediately after DOMA's enactment: a group of actual people whom the law hurts. They are the ones challenging DOMA.

The plaintiffs in these cases, Gill v. Office of Personnel Management and Windsor v. United States, include:

– a police officer whose family would receive no benefits, including the education benefit for surviving spouses, if she were killed in the line of duty.

– the surviving spouse of Representative Gerry Studds, the first openly gay man to serve in Congress, who was denied both health insurance and the normal survivor annuity "” the only widower of a member of Congress to be refused these benefits.

– elderly retirees who do not have the Social Security benefits they would have received if their spouse were of the opposite sex.

– a widow who paid $363,000 in federal taxes on her inheritance from her wife, a tax that would never have been imposed on an opposite-sex spouse.

The district court in Gill held that DOMA violates the Fourteenth Amendment, which provides in pertinent part that no state may "deny to any person . . . the equal protection of the laws." The Supreme Court will likely agree.

The Equal Protection Clause is the reason the Court has struck down laws that impose certain inequalities, such as the race discrimination that was challenged in Brown v. Board of Education. But it does not make sense to condemn all inequalities imposed by the law. All laws classify "” and in that way make some citizens unequal to others. A law that forbids ten-year-olds from driving or voting treats them unequally from those who are permitted to do these things.

So the law only presumes laws to be unconstitutional if they discriminate on the basis of race, sex, or a few other "suspect classifications." Eric Holder's February 23 letter to House Speaker John Boehner, declaring that the Obama Administration will no longer defend the constitutionality of DOMA, argues that the factors that indicate suspectness in each of those cases also apply to sexual orientation: a history of purposeful discrimination, immutability, limited political power, and a conclusion that the trait in question bears no relation to ability to perform or contribute to society.

The Court hasn't recognized a new suspect classification in decades, but it won't need to take that step in order to strike down this law. For non-suspect classifications, the constitutional test is what is called rational basis review: the law will be upheld in court if it is "rationally related to a legitimate state interest" (New Orleans v. Dukes). This usually means that the law will be upheld. In a few rare cases, however, the Court has used the rational basis test to strike down laws. In these cases, the Court deploys what scholars have called "rational basis with bite," to distinguish it from the toothless test that is ordinarily applied. This is the basis on which the Court is likely to invalidate DOMA.

The basis for this greater severity of scrutiny is not always clear. One line of decisions offers an explanation. These hold that a law is unconstitutional if it reflects a bare desire to harm a politically unpopular group. USDA v. Moreno invalidated a 1971 amendment to the Food Stamp Act that excluded from participation in the food stamp program any member of a household whose members are not all related to each other. Congress, the legislative history showed, was attempting to prevent "hippie communes" from receiving any stamps. The Court held that this purpose was fatal to the statute: "[I]f the constitutional concept of "equal protection of the laws' means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." The law in Moreno had no purpose other than to keep federal benefits out of the hands of a group Congress did not like.

Moreno became relevant to the gay rights question in Romer v. Evans, a 1996 case that struck down an amendment to the Colorado Constitution (referred to on the ballot as "Amendment 2"). The amendment declared that neither the state nor any of its subdivisions could prohibit discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." The amendment, Justice Kennedy's opinion for the Court observed, "has the peculiar property of imposing a broad and undifferentiated disability on a single named group." The Amendment seemed to "deprive[] gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings." The Court concluded that "Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else." Quoting Moreno, it found that the broad disability imposed on a targeted group "raise[d] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Romer's holding may thus be summarized: If a law targets a narrowly defined group and then imposes upon it disabilities that are so broad and undifferentiated as to bear no discernible relationship to any legitimate governmental interest, then the Court will infer that the law's purpose is simply to harm that group, and so will invalidate the law.

DOMA's definitional provision and the amendment invalidated in Romer have telling similarities. Like the Colorado amendment, DOMA "identifies persons by a single trait [membership in a same-sex marriage] and then denies them protection across the board." For the first time in American history, DOMA created a set of second-class marriages, valid under state law but void for all federal purposes. The indiscriminate exclusion of a class of valid state marriages from all federal recognition is "unprecedented in our jurisprudence." DOMA cuts off federal benefits to a targeted, politically unpopular group, just like the law in Moreno, and it does so in a remarkably broad and undifferentiated way, just like the law in Romer. Some of the government's rationales for the law that were stated in the House Committee Report "”"defending traditional notions of morality, and preserving scarce government resources" "” were presented and rejected in Moreno and Romer. (This analysis is elaborated here.)

The Court's sensitivity to discrimination against gays was also evident in Lawrence v. Texas, a 2003 Kennedy opinion striking down a law against homosexual sex. Kennedy thought that Romer was pertinent because "[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres."

So it is very easy to imagine Kennedy's opinion striking down DOMA. It will simply apply Romer and Lawrence. Attorney General Holder is right that the "moral disapproval of gays and lesbians and their intimate and family relationships" evident in the legislative record reflects "precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against." But you don't need the legislative record. The wild lashing out at gay families is plain on the face of the statute, and suffices to show that the law is unconstitutional.

Recommended Citation: Andrew Koppelman, Why the Supreme Court will strike down DOMA, SCOTUSblog (Aug. 19, 2011, 8:44 AM), https://www.scotusblog.com/2011/08/why-the-supreme-court-will-strike-down-doma/